Hinchliffe v University of Sydney (No. 2)
[2004] FMCA 640
•24 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HINCHLIFFE v UNIVERSITY OF SYDNEY (No.2) | [2004] FMCA 640 |
| HUMAN RIGHTS – COSTS – Application for indemnity costs order – refusal of offer of compromise – offer and refusal related to an aspect of the claim later abandoned by the applicant – no basis for an indemnity award – observations on the reasons for and merits of the Court’s event based costs scale. |
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Hinchliffe v University of Sydney [2004] FMCA 85
Low v Australian Taxation Office [2000] FMCA 6
| Applicant: | CHRISTINA ROSE HINCHLIFFE |
| Respondent: | UNIVERSITY OF SYDNEY |
| File No: | SZ838 of 2004 |
| Delivered on: | 24 September 2004 |
| Delivered at: | Sydney |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Freehills |
ORDERS
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed by reference to the Federal Magistrates Court scale of costs.
The Court certifies that it was reasonable for the respondent to employ an advocate to represent it at each hearing conducted in the proceedings.
The parties have liberty to apply on three days notice for further directions or orders relating to the determination of costs and disbursements.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ838 of 2004
| CHRISTINA ROSE HINCHLIFFE |
Applicant
And
| UNIVERSITY OF SYDNEY |
Respondent
REASONS FOR JUDGMENT
Introduction and background
I gave judgment in the principal proceedings in this matter on 17 August 2004: Hinchliffe v University of Sydney [2004] FMCA 85. In that decision I dismissed the application for relief under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The successful respondent sought an order for costs and I invited written submissions.
Written submissions as to costs on behalf of the respondent were filed on 31 August 2004. In those submissions the respondent seeks the following costs orders:
a)subject to (c), that the applicant pay the respondent’s costs of and incidental to the proceedings on a party/party basis up to 11.00am on 16 May 2003;
b)that the applicant pay the respondent’s costs of an incidental to the proceedings on an indemnity basis on and from 11.00am on 16 May 2003;
c)that the applicant pay the costs thrown away by the respondent, occasioned by the applicant’s late withdrawal of a significant proportion of her claim, on an indemnity basis;
d)that the applicant pay the respondent’s costs of an incidental to the applicant’s request for documents on 13 October 2003; and
e)that the applicant pay such costs within 14 days.
The respondent submits that it is entitled to a costs order notwithstanding that the applicant is a legally assisted person. The respondent submits that it should receive part of its costs on an indemnity basis because the applicant rejected a formal offer of compromise which had been made on 15 May 2003. Secondly, the respondent submits that indemnity costs should be awarded in respect of costs thrown away by reason of the “late” withdrawal of part of the applicant’s claim in which the applicant had sought orders requiring the university to provide certain facilities to her. Finally, the respondent submits that indemnity costs should be awarded in respect of the respondent’s costs of complying with a request for documents which the respondent submits was onerous and in respect of which the applicant had undertaken to pay reasonable expenses, but subsequently only agreed to pay $36.92. The respondent submits that in excess of $4,000 had been incurred in order to comply with the request for documents.
The applicant filed written submissions in reply on 20 September 2004. In those submissions the applicant relevantly submits as follows:
a)the applicant submits that costs should follow the event and the applicant does not oppose an order for costs on the usual party/party basis, as had already been indicated in written submissions filed in the principal proceedings on 21 June 2004;
b)costs should be fixed in accordance with the costs scale in schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”); and
c)there is no basis upon which costs should be ordered on an indemnity basis.
The applicant refers to the objects of the Federal Magistrates Court to provide a forum for the quick, cheap and simple administration of justice. The applicant refers to the general principles relating to the award of costs on an indemnity basis and submits that, in accordance with those principles, the Court should not award costs on anything other than the normal party/party basis. The applicant submits that the offer of compromise does not call for an indemnity costs award because the offer was made and lapsed at a time when the applicant’s case had not yet been formulated. The offer related to an aspect of the applicant’s claim which was abandoned prior to the trial of the matter. Secondly, the applicant submits that indemnity costs should not be awarded in relation to the applicant’s “late” withdrawal of that part of her claim because the proceedings were not conducted on the basis of formal pleadings and it is not clear, in any event, what costs were “thrown away”. The applicant submits that it should have been clear to the respondent from an early stage of the matter that the applicant was not pursuing any claim for the future provision of facilities. The applicant submits that the respondent’s costs of dealing with the applicant’s requests for documents should be dealt with as part of the respondent’s overall costs. The applicant submits that she had only offered to pay out of pocket expenses incurred by the respondent’s legal representatives in respect of the request, not the professional costs of those legal representatives. The applicant further submits that her costs of dealing with the respondent’s application for indemnity costs should be set off against her costs liability on a party/party basis. Her counsel, Mr Poynder, states that he spent 12 hours in dealing with the issue of costs.
Reasoning
I reject the applicant’s submission that she should, in effect, receive her costs of dealing with the issue of costs by way of written submissions. The parties were unwilling or unable to deal with the issue of costs on the day judgment was given and readily agreed to provide written submissions. The judgment I gave was a very long one and the parties required time to consider it before committing themselves to a position on costs.
I also reject the respondent’s submissions in support of a claim for indemnity costs. I do not regard the applicant’s rejection of the offer of compromise as calling for an indemnity costs order. The respondent’s offer related to the applicant’s desire for course materials to be provided to her in particular formats for her assistance in her university studies. The parties had been in productive discussion on that issue from shortly after the time when the applicant made her complaint to the Human Rights and Equal Opportunity Commission. To a large extent, that issue was resolved to the satisfaction of the applicant. The university was at pains to point out to me during the course of the proceedings that it was willing to do what it considered reasonable in order to provide material to the applicant in the most suitable format for her. I was made aware of the offer and refusal because, unusually, both parties put them into evidence before or during the trial. The issues of whether the university could be required by court order to provide particular facilities to the applicant and, if so, what the terms of such an order might be were never litigated to judgment. The applicant severed that issue from her claim and the matter proceeded as a simple claim for damages in respect of a fixed period of time when the applicant asserted that she had been denied appropriate facilities. There was no offer of compromise in respect of the claim for damages.
Neither am I persuaded that an indemnity costs order is called for by reason of the “late” withdrawal of the part of the applicant’s claim relating to the provision of particular facilities. It was that issue which had taken the parties to the Human Rights and Equal Opportunity Commission and it was probably that issue which initially brought the applicant to the Court. However, as I pointed out at an early stage in the life of the human rights jurisdiction of this Court (Low v Australian Taxation Office [2000] FMCA 6) applicants should be given a reasonable opportunity to take advice as to their circumstances and to get their claim into a proper form. The respondent adopted a legalistic approach to the conduct of the litigation. To some extent, that was a legitimate attempt to clearly identify what the applicant was claiming. However, as I pointed out in my principal judgment, the respondent was unduly legalistic in relation to the issue of pleadings. It certainly took a considerable period for the applicant, through her legal advisers, to finally settle upon the way in which her claim would be pursued. However, the factual and legal issues were by no means simple, as is reflected in the length of the written submissions received in the principal proceedings and the length of my judgment. There was nothing improper in the conduct of the applicant or her legal advisers and she was not so tardy in the refinement of her claim as to expose herself to an indemnity costs order.
I see no merit in the claim for indemnity costs in respect of the request for documents. If the respondent considered the request to be oppressive, it could have sought interlocutory relief from the Court. I accept Mr Poynder’s statement that the applicant only ever offered to pay out of pocket expenses incurred by the respondent’s legal advisers. The scale of costs prescribed in the Federal Magistrates Court Rules makes specific provision for photocopying. Other disbursements may be properly claimable under that scale. If the parties cannot agree on payment of disbursements, the dispute between them can be resolved by the Court.
It follows from the foregoing analysis that the respondent should receive an order for costs on a normal party/party basis, which the applicant has already conceded. Ordinarily, in human rights proceedings, costs are assessed in accordance with the event based scale appearing in schedule 1 to the Federal Magistrates Court Rules. That scale was adopted by the Court in order to provide simplicity and certainty in determining issues of costs. In some cases, as is likely to be the case here, a successful party will incur significantly more in costs than is recoverable pursuant to the Court scale. It does not follow that that is an unjust result, where it occurs. The Court scale is publicly known and parties to litigation should be aware that the scale is likely to determine their maximum recoverable costs should they succeed. If parties wish to incur significantly more costs in litigation in this Court than they could ever recover, that is a matter for them.
In any event, it should not be assumed that because substantial legal costs have been incurred by a party, their money has been well and wisely spent. The scale of costs ordinarily applicable in human rights proceedings reflects the Court’s assessment of what costs can be accepted as reasonable in ordinary proceedings. If proceedings are exceptionally long or complex there is the opportunity to ask for the proceedings to be transferred to the Federal Court, where a more appropriate scale of costs for long and complex proceedings would be available. That was not done in this case.
An additional factor is that there is commonly a disparity between an applicant and a respondent in human rights proceedings in their relative capacity to fund the legal proceedings. This applicant was legally aided but commonly applicants must depend upon their own limited financial resources. Commonly, a respondent will have access to significantly more funds than an applicant. This Court’s event based costs scale establishes a level playing field. I see no reason to depart from it in these proceedings.
I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application, fixed by reference to the Federal Magistrates Court scale of costs in schedule 1 to the Federal Magistrates Court Rules. For the purposes of rule 21.15 of the Federal Magistrates Court Rules, I certify that it was reasonable for the respondent to employ an advocate to represent it at each hearing conducted in the proceedings.
In the event that the parties are unable to resolve any dispute between them as to the determination of costs pursuant to the scale, the parties have liberty to apply for further directions or orders.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 September 2004
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