Karakus v Australian Prudential Regulation Authority

[2000] FCA 1551

FEDERAL COURT OF AUSTRALIA

Karakus v Australian Prudential Regulation Authority [2000] FCA 1551

ULGEN KARAKUS v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

N 514 OF 2000

MOORE J
26 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 514 OF 2000

BETWEEN:	ULGEN KARAKUS APPLICANT
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	26 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The applicant has leave to discontinue the proceedings.

2.   The applicant pay the respondent’s costs of the proceedings.

3.   Order 2 take effect six weeks from today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 514 OF 2000

BETWEEN:	ULGEN KARAKUS APPLICANT
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY RESPONDENT

JUDGE:	MOORE J
DATE:	26 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging unlawful discrimination under the Sex Discrimination Act 1984 (Cth). The matter has been before me on several occasions. The applicant now seeks leave to discontinue the proceedings. The only outstanding issue is the question of costs. Evidence has been tendered by both the applicant and the respondent concerning negotiations during the early part of this month designed to effect settlement of both this matter and other proceedings involving the same parties.

2. The applicant retained the firm of solicitors Clayton Utz to act on her behalf in this matter and appears to have done so on or about 9 October 2000.  I am satisfied, from documents in evidence, that instructions were given by the applicant to Clayton Utz to settle the matter on the basis that the respondent provide a written apology, that a letter be written concerning work performance and that each party would pay their own costs.  I am prepared to infer that while the offer was made on behalf of the applicant, it was, at least implicitly, rejected by a counter-offer made by letter dated 9 October 2000 from the firm acting for the respondent, Baker & McKenzie to Clayton Utz. 

3. I turn to the question of costs.  In this case the only material consideration, in my view, raised by the applicant that might militate against an order being made requiring her to pay the respondent's costs, is that the offer was made by her and rejected.  If the offer was one that ought reasonably have been accepted but was not, then that would tell against the making of a costs order against the applicant and indeed might support a costs order being made against the respondent.

4. However, the settlement offer made by the applicant is not of that character.  I accept the offer advanced a basis upon which the matter might have been settled that was not beyond the realms of possible settlements.  But it was not accepted.  There were elements in the applicant’s offer, particularly that each party pay their own costs, that might reasonably have led the respondent in the circumstances of this case to reject the specific offer.  That is particularly so in the context of the respondent wanting to settle all proceedings involving the applicant.  It is unnecessary for me to express a view about counter-offer made by the respondent involving, as it does, deeds of the release and the like.

5. I propose to order that the applicant pay the respondent's costs.  I will make a further order that this order not take effect for six weeks.  I follow that course because it seems to me in the interests of not only the respondent but also the applicant for all proceedings between the parties to be settled.  It may be that settlement can be achieved within the next six weeks.  As part of any settlement, the parties could reach agreement about the costs payable as a result of the order I have made.

6. Accordingly, what I do is give the applicant leave to discontinue the proceedings.  I order that the applicant pay the respondent's costs of the proceedings.  I further order that the costs order take effect six weeks from today.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             2 November 2000

The applicant appeared in person.
Counsel for the respondent:	Ms K Eastman
Solicitor for the respondent:	Baker & McKenzie
Date of Hearing:	26 October 2000
Date of Judgment:	26 October 2000