KELLY v TPG Internet Pty Ltd (No.2)
[2005] FMCA 291
•16 March 2005
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 that in the proper exercise of my discretion I would order each party bear its own costs. Alternatively the respondent argues that the respondent pay only 30% of the applicant’s costs.
The applicant argues that there was nothing in her conduct of the case that would disentitle her to a costs order in the usual way. I accept that submission. Cases previously heard in the Court such as Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122 and Mayer v ANSTO [2003] FMCA 209 would have indicated that the applicant’s claim was at least arguable. In the end these decisions were distinguished by me but it could not be claimed that this part of the application was hopeless or was proceeded with in clear disregard of the settled law.
There have been a number of cases in the Federal Magistrates Court in which the question of departing from the usual order for costs in favour of a successful party has been considered. These cases are collected in a decision of Federal Magistrate Driver: Ho v Regulator Australia Pty Ltd & Anor (No 2) [2004] FMCA 402. His Honour also refers to the other standard authorities on the subject including a substantial quote from a decision of mime Horman v Distribution Group Ltd [2001] FMCA 52 in which I also cited a number of authorities including Oshlak v Richmond River Council (1998) 193 CLR 72 at [97] and Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874 which discusses the question of misconduct on the part of a successful party. After consideration of all these authorities and the facts of the particular case before him Driver FM said at [16]:
“In the present case, although the applicant succeeded on two minor issues, she was substantially unsuccessful. While, as I have said in my first judgment in this matter, there are some similarities between this case and Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91, there are also some significant differences. The applicant in Cooke succeeded substantially in persuading me that what she said occurred did occur, however she failed in persuading me that what occurred had amounted to sexual harassment. In this case, most of what the applicant asserted occurred I have found did not occur. Her case failed substantially not on the law, but on the facts. In the circumstances of this matter there is more to be said for the approach taken by McInnis FM in McBride v State of Victoria (No 2) [2003] FMCA 31 than my earlier approach in Cooke.”
His Honour then divided the costs in the manner set out at [17] of the judgment.
As I stated in arguendo there may be much to recommend a different approach by the courts to this question that would possibly rid them of the prolix form of pleading to which one has become accustomed in the commercial or equity divisions of the state supreme courts, and to some extent in the Federal Court. But this is not one of those cases and there is equally much to be said for the proposition that proceedings should not be even further prolonged by lengthy arguments as to how much time was taken in the preparation and hearing of unsuccessful constituents of a claim. Not only am I bound by what is the current law in relation to these matters but I believe that it is probably the most appropriate way of dealing with this vexed issue.
This applicant did not fail because I disbelieved her. She failed because I took a different view of the law to that which she was promoting. I do not believe that she should be robbed of the fruits of her success because of this even though I accept Ms Ronalds’ argument that the claim was factually distinguishable from the claim in respect of which she was successful. This would tend to my following FM Driver in Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91. The order that I would make in relation to the costs of the proceedings is that the respondent should pay the applicant’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.
I have also been asked to make a determination as to the costs of the hearing before me on 10 March 2003. In this regard I have two affidavits of Sian Patricia Ryan dated 10 February 2005 and
22 February 2005. These reveal that shortly after the decision was handed down the applicant’s solicitors sent the respondent’s solicitors a tax invoice for some $34,633.17 which appears to bear little resemblance to an assessment based on Schedule 1 of the Federal Magistrates Court Rules. The request was responded to by an offer suggesting that the applicant owed the respondent approximately $21,000 because she should bear a high proportion of their costs. The matter proceeded into mid year and a further proposal was made by the applicant’s solicitors. This appears to have been responded to at the end of November and there was further correspondence in February. Finally the applicant made the application which came before me on
10 March 2005.
In my view neither party has distinguished themselves in this correspondence. It is disappointing that the question of costs has not been resolved in over 15 months or not brought back to the Court previously. It is disappointing that the applicant never provided the respondent with an assessment of her costs under Schedule 1 and possibly equally disappointing that the respondent’s reaction to the proposals that were put was to suggest that the applicant owed them money. I think that in all the circumstances the appropriate order in relation to this application is that each party bear its own costs.
At the hearing there was a short discussion concerning interest claimed on the judgment sum which has only recently been paid to the applicant. I note that the respondent’s counsel indicated that interest would be paid on that sum from the date of judgment to the date of payment at the appropriate court rate.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 March 2005
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