Jin v The University of Queensland

[2016] FCCA 16

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIN v THE UNIVERSITY OF QUEENSLAND [2016] FCCA 16

Catchwords:

PRACTICE AND PROCEDURE – Costs – whether costs should follow the event.

Applicant: SHUTING JIN

Respondent: THE UNIVERSITY OF QUEENSLAND

File Number: BRG 740 of 2013

Judgment of: Judge Jarrett

Hearing date: By written submission

Date of Last Submission: 7 December 2015

Delivered at: Brisbane

Delivered on: 11 January 2016

REPRESENTATION

Representative for the Applicant: Dr Ivan Kassal appearing pursuant to s.46PQ(1)(c) of the Australian Human Rights Commission Act 1986 (Cth)

Solicitors for the Respondent: Bartley Cohen

ORDERS

1. The applicant pay the respondent’s costs of and incidental to the application filed on 23 August, 2013 fixed in the sum of $6090.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 740 of 2013

SHUTING JIN

Applicant

And

THE UNIVERSITY OF QUEENSLAND

Respondent

REASONS FOR JUDGMENT

1. On 5 November, 2015 I delivered reasons for judgment and orders on the respondent’s application to summarily dismiss the applicant’s proceedings.  In those proceedings she had sought relief pursuant to the Australian Human Rights CommissionAct 1986 for alleged racial discrimination.

2. I summarily dismissed the applicant’s proceedings.  In my reasons for that decision, I said:

   57. I am presently of the view that costs should follow the event and that Ms Jin should pay the University’s costs according to the Federal Circuit Court Rules 2001. According to the FCCR (schedule 1), those costs might be seen to be:

Stage	Description	Amount
1	Initiating or Opposing Application up to completion of first Court day	$2,633.00
1	Court attendance – 15 November 2013 (short mention)	$271.00
2	Interim or summary hearing – 4 February, 2014	$1,661.00
2	Court attendance – 4 February, 2014 (including advocacy loading)	$1,495.50
Disbursements:	Court filing fees	Nil
Total:	$6,090.50

58.    Either party may make further submissions in respect of the proposed costs order by 4.00pm on 7 December, 2015.  Thereafter I will consider any further submissions so made and pronounce a final costs order having regard to any submissions, either as to the making of any costs order at all, or the quantum of the costs order, received from the parties.

1. The applicant took the opportunity to make further submissions with respect to costs.  The respondent did not.

2. The applicant argues that there should be no orders as to costs because this case concerned, and resolved, an issue “of sufficient public interest to justify departing from the usual costs rule”.  The applicant argues that my decision was the first time that the protections against immigrant-status discrimination in the Racial Discrimination Act1975 were considered by an Australian court. 

3. She argues that her case was one of public interest for several reasons, namely:

   a)Motivation.  She argues that her evidence that advancing the public interest was her “main reason” in bringing the case (affidavit affirmed 7 Nov 2013, paragraph 2) was not challenged by the University.  However, it remains the case that in the proceedings Ms Jin sought substantial compensation.  This is not an application where she sought only declaratory relief.  The claim sought compensation for a period that she says she was affected by the alleged discrimination by the respondent.

   b)Settling open questions of Commonwealth law. Ms Jin argues that this was the first case to consider the interaction of s.5 with the remainder of the Racial Discrimination Act. That may well be so, but it could hardly be said that my decision settled important questions of law. It was a decision of an intermediate trial court that has no binding authority. Further, as I pointed out in my primary reasons for decision, Australian Medical Council v Wilson (1996) 68 FCR 46, a decision of the Full Court of the Federal Court of Australia was against the propositions being advanced by Ms Jin.

   c)Broad impact.  Ms Jin argues that there are over 5 million immigrants in Australia whose legal rights were clarified by the Court’s decision.  However, I do not accept the absolute nature of that statement.

   d)Interest from the AHRC.  Ms Jin argues that the Australian Human Rights Commission requested to be apprised of all developments in this case, and the Race Discrimination Commissioner considered seeking leave to appeal as amicus curiae, but was unable to do so because the University did not disclose the reason it was seeking summary dismissal until the day before the hearing.  However, there is no evidence to support those propositions.  Even if that was the case, neither the Australian Human Rights Commission nor the Race Discrimination Commissioner sought leave to intervene in the proceedings ought to appear as amicus curiae.

4. There is no doubt that Ms Jin’s case was arguable.  However, many arguable cases are dismissed.  Many attract orders for costs.  That she had an arguable case which ultimately failed, whilst relevant, is of minor importance.

5. Further, there is also no doubt that Ms Jin’s case had a public interest element to it.  But in my view, Ms Jin’s submissions overstate the significance of that public interest element. That is especially so given that having regard to Australian Medical Council v Wilson (above) the position for which Ms Jin contended was likely to be decided against her.

6. In my view, costs ought to follow the event.  No special circumstances are demonstrated that persuade me to depart from that approach.

7. In my primary reasons for judgment, I foreshadowed the way in which I would assess the costs in this matter.  Ms Jin submits that that assessment is appropriate in the circumstances.  The respondent did not file any submissions, within the time limited by my orders for that purpose, contending that that assessment was inappropriate. 

   
   
   

8. In those circumstances the order will be as set out at the commencement of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 January, 2016.

Associate: 

Date: 11 January 2016