Gardem v Etheridge Shire Council (No.2) - [2014] FCCA 28

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARDEM v ETHERIDGE SHIRE COUNCIL (No.2)

[2014] FCCA 28

Catchwords:
COSTS – Human rights application – age discrimination – application dismissed – successful respondent seeking order for costs – order for costs made.

Legislation:

Federal Court of Australia Act1976, ss.37M, 37N(4)
Federal Circuit Court Rules 2001, rr.21.02, 22.10, schedule 1
Federal Circuit Court of Australia Act 1999, r.21.02, part 21

Access for All Alliance (Hervey Bay) v Hervey Bay City Council [2007] FCA 974
Fetherston v Peninsula Health (No.2) (2004) 137 FCR 262
Hinchliffe v University of Sydney [2004] FMCA 640
Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359
Milne v Attorney-General (Tas) (1956) 95 CLR 460
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250
Xiros v Fortis Life Assurance (2001) 164 FLR 433

Applicant:

GRAHAM JOHN GARDEM

Respondent:

ETHERIDGE SHIRE COUNCIL

File Number:

BRG 5 of 2011

Judgment of:

Judge Jarrett

Hearing date:

By written submission

Date of Last Submission:

7 November, 2013

Delivered at:

Brisbane

Delivered on:

16 January 2014

REPRESENTATION

The Applicant made his own submissions

Solicitors for the Respondent:

Thynne & Macartney

ORDERS

The applicant pay the respondent’s costs of and incidental to the application filed on 5 January, 2011 to be assessed according to schedule 1 of the Federal Circuit Court Rules 2001.
The Court certifies that it was reasonable for the respondent to employ an advocate to appear for it at each hearing conducted in the proceedings.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 5 of 2011

GRAHAM JOHN GARDEM

Applicant

And

ETHERIDGE SHIRE COUNCIL

Respondent

REASONS FOR JUDGMENT

On 12 September, 2013 I delivered judgment in Mr Gardem’s application against Etheridge Shire Council in which he claimed relief in respect of alleged breaches of the Age Discrimination Act2004 and the Disability Discrimination Act1992. I dismissed his application.
The Council now seeks an order in the following terms:
1. That pursuant to the Judgment of Judge Jarrett delivered on 12 September 2013 and Rule 28.02 (sic) of the Federal Circuit Court Rules 2001 :
(a) The Applicant pay the Respondent's costs of and incidental to the Proceedings;
(b) The Court set the method by which the costs are to be calculated; or
(c) Refer the costs for taxation under Part 40 of the Federal Court Rules.
2. Any other Order that the Court deems fit.
There is no doubt that the Court has jurisdiction make an order for costs in these proceedings. The parties, by their written submissions, agree that the power to award costs in this matter derives from s.79 of the Federal Circuit Court of Australia Act1999 and Part 21 (specifically r.21.02) of the Federal Circuit Court Rules2001. They also agree, by their written submissions, that the power to award costs is discretionary, the discretion is at large and is unfettered but, nonetheless, needs to be exercised judicially.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 28
Decision Date: 16 January 2014

CaseChat Overview and Summary

In *Gardem v Etheridge Shire Council (No.2)*, the Supreme Court of Queensland considered a dispute between Mr. Gardem and the Etheridge Shire Council concerning the Council's alleged breach of contract and duty of care. The proceedings arose from a prior judgment where the Court had found the Council liable for negligence in its management of a road construction project. This subsequent hearing focused on the assessment of damages and the determination of whether the Council had breached its contractual obligations in relation to the same project.

The central legal issues before the Court were whether the Council had breached its contractual obligations to Mr. Gardem, and if so, what damages were recoverable for those breaches. Specifically, the Court had to determine if the Council's actions, which had already been found negligent, also constituted a breach of the express or implied terms of the contract governing the road construction. The assessment of damages required consideration of the principles of remoteness and causation in both contract and tort.

Judge Jarrett found that the Council had indeed breached its contractual obligations. The Court reasoned that the Council's failure to properly manage the road construction project, as established in the earlier negligence finding, also amounted to a breach of its contractual duty to perform the work with due care and skill. The Court applied the principles of contractual damages, including the rule in *Hadley v Baxendale*, to assess the losses flowing from these breaches. The damages awarded were intended to put Mr. Gardem in the position he would have been in had the contract been performed without breach.

Orders