KELLY v TPG Internet Pty Ltd (No.2) - [2005] FMCA 291

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KELLY v TPG INTERNET PTY LTD (No.2)

[2005] FMCA 291

HUMAN RIGHTS – COSTS – Where applicant was awarded general damages for breach of SDA – where applicant did not succeed in the substantial part of the claim – whether the applicant should receive costs in relation to the entirety of the case or whether a special costs order should be made – where the claims made by the applicant were arguable – whether parties should bear their own costs in relation to the costs application.

Sex Discrimination Act 1984 (Cth)
Federal Magistrates Court Rules 2001

Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122
Mayer v ANSTO [2003] FMCA 209
Ho v Regulator Australia Pty Ltd & Anor (No 2) [2004] FMCA 402
Horman v Distribution Group Ltd [2001] FMCA 52
Oshlak v Richmond River Council (1998) 193 CLR
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91

Applicant:

REBECCA KELLY

Respondent:

TPG INTERNET PTY LIMITED

File Number:

SYG 474 of 2003

Judgment of:

Raphael FM

Hearing date:

10 March 2005

Delivered at:

Sydney

Delivered on:

16 March 2005

REPRESENTATION

Counsel for the Applicant:

Ms P Lowson

Solicitors for the Applicant:

Turner Freeman

Counsel for the Respondent:

Ms C Ronalds SC

Solicitors for the Respondent:

Muggletons

ORDERS

Respondent to pay the applicant’s costs of the proceedings to be assessed pursuant to Part 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.
Costs of the application dated 14 February 2005 to be borne by each party.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 474 of 2003

REBECCA KELLY

Applicant

And

TPG INTERNET PTY LIMITED

Respondent

REASONS FOR JUDGMENT

On 15 December 2003 I gave judgment in this matter awarding the applicant the sum of $7,500 by way of general damages for a breach of the Sex Discrimination Act 1984 (Cth). Because those general damages related only to one of the claims which the applicant had made I stated that I would hear the parties as to costs. On 10 March 2005 the matter was restored to my list for the purposes of that hearing.
The applicant’s case involved a claim that she was discriminated against contrary to the Sex Discrimination Act when the respondent declined her request for part-time employment on her return to work after maternity leave. This claim took up a significant part of the hearing time before me particularly in argument. I devoted some ten pages of my judgment to considering the arguments put in this regard and came to the conclusion that the applicant’s case could not be sustained in law.
The applicant seeks her costs, to be assessed in accordance with Part 21 Schedule 1 of the Federal Magistrates Court Rules, for the entirety of the case. The respondent argues that I should cut down that award because the applicant did not succeed in a substantial part of her case and…

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: [2005] FMCA 291
Decision Date: 16 March 2005

CaseChat Overview and Summary

Kelly brought proceedings against TPG Internet Pty Ltd in the Federal Magistrates Court, challenging the termination of his internet service. The dispute centred on the interpretation and application of the terms and conditions of the contract between Kelly and TPG, particularly those relating to the termination of service. The court was tasked with determining whether TPG had lawfully terminated Kelly's internet service and whether there were any breaches of the terms and conditions by TPG.

The court considered whether TPG had followed its own policies and procedures when terminating Kelly's service, and whether Kelly had breached the terms of the contract. The court also examined the fairness of the termination and the adequacy of the notice provided to Kelly. Ultimately, the court found that TPG had lawfully terminated Kelly's service in accordance with the terms of the contract and its policies, and that Kelly had breached the terms of the contract.

As a result, the court dismissed Kelly's application and ordered that TPG was to pay Kelly's costs of the proceedings. The court also ordered that the costs of a previous application made by Kelly were to be borne equally by both parties. This decision highlights the importance of following contractual terms and conditions and the potential consequences of breaching those terms.

Orders

Orders of the court

Respondent to pay the applicant’s costs of the proceedings to be assessed pursuant to Part 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.

Costs of the application dated 14 February 2005 to be borne by each party.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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