Gardem v Etheridge Shire Council (No.2)
[2014] FCCA 28
•16 January 2014
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) |
| 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 general rule is that costs follow the event. As Driver FM (as his Honour then was) said in Xiros v Fortis Life Assurance (2001) 164 FLR 433 said:
20. …There is a general principle that, in civil non-jury trials, in the absence of special circumstances, a successful party has a reasonable expectation of obtaining an order for costs in its favour unless, for some reason connected with the case, a different order is specifically warranted: Donald Campbell & Co v Pollack [1927] AC 732 at 812, cited by McHugh J in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 569. A departure from that general principle cannot be arbitrary or idiosyncratic, but there is no right to an order for costs, notwithstanding success in litigation: Donald Campbell & Co v Pollack op cit at 811.
That general principle applies to proceedings under the Australian Human Rights Commission Act1986 as these proceedings were: Access for All Alliance (Hervey Bay) v Hervey Bay City Council [2007] FCA 974. At [27] of that case Collier J said:
First, it is clear from a number of cases that the fact that the case is a human rights and/or discrimination case does not of itself automatically characterise the proceedings as being in the public interest with the result that the court should divert from usual orders as to costs (Sluggett v HREOC [2002] FCA 1060 and Fetherson v Peninsula Health (No 2) [2004] FCA 594.
In Fetherston v Peninsula Health (No.2) (2004) 137 FCR 262, when ordering costs against an unsuccessful applicant in a matter under the Act Heerey J said, at [9]:
While the Disability Discrimination Act is without doubt beneficial legislation, its characterisation as such does not mean that this Court is to apply any different approach as to costs. In conferring jurisdiction under a particular statute Parliament may conclude that policy considerations warrant a special provision as to costs, for example that there be no order as to costs or that costs only be awarded in certain circumstance, such as, for example, where a proceeding has been instituted vexatiously or without reasonable cause: Workplace Relations Act 1996 (Cth) s 347. The absence of any such provision applicable to the present case confirms that the usual principles as to costs are to apply.
The general rule applies unless good reason is shown to the contrary: Milne v Attorney-General (Tas) (1956) 95 CLR 460.
Etheridge Shire Council contends that the usual rule applies and that no good reason can be shown by Mr Gardem to demonstrate that it should not apply.
In answer to the Council’s claim, Mr Gardem argues that:
a)the Council’s pre-action conduct disentitles it to any order for costs;
b)he was self-represented in the proceedings and that fact has, in the past, been decisive against an order for costs against a self-represented litigant; and
c)the council engaged in unmeritorious behaviour which, as a matter of discretion, requires that the general rule not be applied in the circumstances of this case.
As to the first matter, Mr Gardem suggests that the Council did not engage in a mediation or conciliation process that he, by his then lawyers, sought to establish in June, 2009 well before he instituted his proceedings in this Court in January, 2011. He argues that had the Council engaged in that process, the proceedings in this Court would have been avoided because, one way or another, his claims would have been settled.
Mr Gardem points out in his written submissions that s.37N(4) of the Federal Court of Australia Act1976 provides that in exercising the discretion to award costs, the Court or Judge must take account of a party’s failure to comply with the duty to conduct the proceedings in a way that is consistent with the “overarching purpose”. The “overarching purpose” referred to by him is that which is provided for in s.37M of the Federal Court Act.
There are three obvious difficulties with Mr Gardem’s argument in this respect. The first is that the provisions of the Federal Court Act upon which Mr Gardem relies do not apply to judges of this court. They apply only to the judges of the Federal Court and to proceedings in that Court.
Second, before these proceedings were commenced, there must have been an attempt at a conciliation process in the Australian Human Rights Commission. That such a process had occurred and had been terminated was a pre-condition to this Court exercising jurisdiction in the type of case prosecuted by Mr Gardem. Because there had been such a process in the Australian Human Rights Commission, the parties suggested that further mediation during the course of these proceeding would be of no purpose.
Third, the result in the case demonstrates that the stance taken by Mr Gardem in the proceedings was unsupportable. His case did not succeed on any basis and that it was not likely to succeed ought to have been readily apparent to him, particularly with the benefit of legal advice, which he says he had in June, 2009.
As to the second matter, in Xiros v Fortis (above) Driver FM said:
23. Another circumstance that may warrant a departure from the general principle [that costs should follow the event] is where the unsuccessful party is unrepresented and was not in a position to make a proper assessment of the strength or weakness of his case, and, hence, the risk associated with the litigation. Mr Xiros had the benefit of legal assistance for his complaint to HREOC but he was unrepresented in these proceedings. The issue to be resolved was a technical one: whether there was a sufficient actuarial basis for the exclusion from benefits in the insurance policy of HIV/AIDS derived conditions, an issue on which the respondent bore the onus of proof. That issue could only be resolved by the pursuit of the present application to this Court, and Mr Xiros was not in a position to make a reliable assessment of his prospects of success.
The present case was not a case like Xiros. Mr Gardem pursued his claim having earlier received legal advice in June, 2009. He pursued the matter in the Human Rights Commission without a result. He bore the onus of proof in the proceedings at all times. No technical point was in issue. The case fell to be determined according to the facts and the law set out in the two relevant statutes as it applied to those facts. That a litigant has chosen to represent him or herself cannot, of itself, be an answer to an order for costs if that litigant is unsuccessful. The authorities, of which there are many, demonstrate that to be so. Something more than the fact of self-representation is needed. As Xiros demonstrates, something that is inherent in the nature of the litigation might provide that additional matter.
The failure by the Council to take up Mr Gardem’s offer of mediation in June, 2009 does not assist his argument in this respect. Mr Gardem was represented at that time and was in a position to make a proper assessment of the strength of his case. To the extent that he suggests that the mediation process would have permitted him to make a better assessment of the Council’s case, it is clear that he had already been furnished with information from the Council by the time he commenced these proceedings notwithstanding the Council’s failure to engage in a mediation prior to these proceedings or the application to the Australian Human Rights Commission. That information came from the Crime and Misconduct Commission (that I have referred to below) and the Council’s responses in the Australian Human Rights Commission.
The third matter relied upon by Mr Gardem is what is said to be disentitling conduct by the Council in its dealings with Mr Gardem. In the reasons for judgment that I delivered in the principal proceedings, I set out at length the factual background to Mr Gardem’s application (between paragraphs 5 and 51). In summary, however, Mr Gardem alleged that after he commenced employment for the Council he raised with senior Council personnel what he considered to be serious issues concerning many of the Council’s practices. Those concerns, he says, were ignored. Worse than that, he says that the then CEO of the Council embarked upon a course of behaviour designed to have only one outcome – the removal of Mr Gardem from his employment.
Mr Gardem took his concerns to the relevant Ministers in the State Government and also to the Crime and Misconduct Commission (Queensland). In the principal judgment I recorded:
35. On or about 30 October, 2008 Mr Gardem received a response from the CMC. The CMC determined that there was “no doubt” that Mr Edmistone’s action in initiating show cause proceedings upon becoming aware of the contents of Mr Gardem’s “public interest disclosure” was an unlawful reprisal against Mr Gardem that was prohibited by the Whistleblower’s Protection Act 1994 (Qld). Further, the CMC advised Mr Gardem that a report had been sought from Mr Edmistone detailing the reasons for Ms Alexander being appointed to the position of Acting Manager Corporate Services as that too, might be seen as a reprisal against Mr Gardem.
…
44. Mr Gardem did not respond to that letter. However, he did write to Mr Edmistone on 9 September, 2009. He raised a number of unrelated issues. … Mr Gardem made reference to a person called Mr Bruce Gould. Mr Gardem then referred to the Premier and the decision of the CMC. Mr Gardem pointed out the reprisal offences under the Whistleblower’s Protection Act 1994, other criminal offences under that Act and that civil action is permitted under that Act for acts of reprisal. Finally the letter closes with the following paragraph:As significant legal fees have been paid by Council already and more will be paid on related matters into the future, you will need to ensure there is a clear distinction between Council’s obligations and the private obligations of any individual connected to Council who was part of the events referred to, and ensure appropriate parties personally pay their share of costs.
Mr Gardem now says that the Council’s conduct towards him after he commenced raising his concerns with the Council’s officers should disentitle it from an order for costs in these proceedings. It is clear from the evidence at trial, however, that Mr Gardem had received advice from the Crime and Misconduct Commission (Queensland) that the Council’s conduct towards him amounted to unlawful reprisal action (at least as far as the CMC was concerned). He also knew that acts of unlawful reprisal were actionable.
It was always the case that Mr Gardem was intent on exposing the Council’s allegedly unlawful practices and the allegedly unlawful response by the Council towards him. His own case was that the Council had taken unlawful reprisal action against him. He had received advice about those actions and knew that he could pursue a civil case against the Council for those reprisal actions. As I pointed out in my principal judgment, Mr Gardem’s claims of age or disability related discrimination seemed to be at odds with his principal assertion that the Council’s actions against him were motivated by a desire to cause him harm because of his conduct towards the Council and its officers.
Ultimately, I made no findings about the reasons for which the Council took the action that it took against Mr Gardem in this case other than that whatever action the Council took against Mr Gardem, it had nothing to do with his age or any purported disability. I was asked to make no findings about the reasons for the Council’s conduct towards Mr Gardem, save within the context of the discrimination cases that he pursued, and in any event it would have been inappropriate to do so.
Conclusion
I am not satisfied that there are special circumstances which justify a departure from the usual rule that costs should follow the event. Mr Gardem should pay the Council’s costs of and incidental to the proceedings.
No submissions are made by the Council as to the quantum of the costs sought or the basis upon which the Court might set the method by which those costs are to be calculated. That is disappointing because, as the cases make clear, the starting point is that ordinarily costs will be assessed according to the event based scale set out in Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001: FCCR 21.10, Hinchliffe v University of Sydney [2004] FMCA 640 at [10]; Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 at [43]; applied in Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359.
In my view, the Council’s costs should be assessed according to schedule 1 of the FCCR.
Accordingly, I make the orders and the directions set out at the commencement of these reasons.
I certify that the preceding twenty- six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 January, 2014.
Deputy Associate:
Date: 16 January 2014
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