L v H.R.E.O.C.& Anor - [2007] FMCA 160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR

[2007] FMCA 160

ADMINISTRATIVE LAW – Review of decision of Human Rights and Equal Opportunity Commission – costs of successful respondent – no special circumstances or public interest justifying refusal of order for costs.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46P

Xiros v Fortis Life Assurance Limited [2001] FMCA 15
Oshlack v Richmond River Council [1998] HCA 11
Ruddock v Vadarlis & Ors (No. 2) [2001] 115 FCR 229

Applicant:

First Respondent:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Second Respondent:

COMMONWEALTH OF AUSTRALIA

File number:

SYG 288 of 2004

Judgment of:

Cameron FM

Hearing date:

14 February 2007

Date of last submission:

14 February 2007

Delivered at:

Sydney

Delivered on:

14 February 2007

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent:

Human Rights and Equal Opportunity Commission

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

That the applicant pay the second respondent's costs fixed in the sum of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 288 of 2004

Applicant

And

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

This hearing this morning involves an application on behalf of the second respondent for costs arising out of the decision of his Honour, Driver FM, delivered in these proceedings on 30 October 2006. The first respondent filed a submitting appearance and its submission was that each party bear their own costs. The applicant as respondent to the second respondent's application for costs has addressed the Court as well.
These proceedings started in 2004 and were interrupted for a period during 2004 to 2006 as a result of orders of this Court. Following a decision of the Full Court of the Federal Court these proceedings were returned to this Court for further conduct.
The second respondent was joined in these proceedings by order made by Driver FM on 1 August 2006.
The first respondent, the Human Rights and Equal Opportunity Commission, wrote on 24 August 2006 to the applicant, the second respondent and, his Honour's judgment of 30 October 2006 indicates, to the Court, advising that it would concede that part of the application relating to its decision made on 9 January 2004 to refuse to accept complaints in relation to the Refugee Review Tribunal, CRS Australia and others as complaints under s.46P of the Human Rights and Equal Opportunity Commission Act 1986. However, his Honour's judgment records that that correspondence also says that the Commission made no concession in relation to the applicant's complaint in relation to the Social Security Appeals Tribunal or other orders sought by her.
In the outcome of the proceedings, the only matter on which the applicant was successful was that matter which was conceded by the first respondent. The second respondent seeks costs in the amount of $7,000 and informs me that its solicitor and client costs are in the order of $14,000. The second respondent has also taken me to the costs which would be awarded under the scale applicable pursuant to the rules of this Court and I agree with Ms Watson's calculations that applying the scale would produce a figure of $9,670 which could be potentially awarded to the second respondent.
The second respondent has submitted that it should be kept in mind that these were not human rights proceedings, the human rights proceedings were before the Commission. This was an appeal under the Administrative Decisions (Judicial Review) Act 1977. The applicant, on the other hand, stressed that her human rights had been significantly affected by conduct preceding these proceedings, those being matters which she was taking up with the Human Rights and Equal Opportunity Commission.
The applicant took the Court to a number of events said to have occurred in the past and has made reference to the conduct of these proceedings – in large part in relation to periods prior to 1 August 2006 which is the commencement of the period in respect of which costs have been sought by the second respondent.
The applicant, in her response to the costs application, took the Court's attention to the cases of Xiros v Fortis Life Assurance Limited [2001] FMCA 15, the decision of the High Court in Oshlack v Richmond River Council [1998] HCA 11 and Ruddock & Ors v Vadarlis & Ors (No. 2) (2001) 115 FCR 229. Those judgments do indicate that in certain circumstances public interest and special circumstances may suggest to the Court that its discretion should be exercised other than in the standard way, which is that costs follow the event. It should be kept in mind of course that costs orders are not meant to be punitive. Costs orders are to indemnify parties for the expenses to which they have been put in the defence of proceedings in which they have been successful and of course that indemnity can only ever be a partial indemnity in practice, absent special circumstances where special costs orders are made.
The applicant has said that her special circumstances and the fact that this was an appeal in respect of human rights proceedings, gave the matter special public interest. However, I disagree. I think the matters which were discussed by the High Court in the Oshlack case indicate that I should not accept that submission. The applicant suggested that there were not many cases likely to come before this Court which were concerned with an imputation of disability which is what the applicant says is her concern – that she is not actually disabled but people are behaving themselves towards her on the basis of their perception or imputation to her of a disability she does not have. However, that does not amount to special circumstances worthy of a special costs order in this case.
The applicant has suggested that there is a public interest in consideration of how the discrimination legislation should be applied. I do not agree that there is any specific or particular public interest in that legislation over and above other legislation. Most particularly, in response to the Commonwealth's application for costs, the applicant's concern is that the Commonwealth is engaged in a conscious course of conduct to deny her her rights and its defence of these proceedings is part of that conduct. Now, whether or not that is the case, that is not something which was determined in the proceedings and it is not something which has been shown in the proceedings. Whether that is something which is ultimately proved in the remitted proceedings before the Human Rights and Equal Opportunity Commission I cannot say and I cannot predict. However, in the absence of evidence to demonstrate that that is the case, I cannot accept that it is an argument which persuades me that a special costs order should be made.
In circumstances where these proceedings did run to a full hearing and that the only matter on which the applicant was successful was the matter which was conceded by the first respondent, I am of the view that it is appropriate that I should exercise my discretion to order costs by ordering costs in favour of the Commonwealth.
The amount sought by the Commonwealth is, I am told, considerably less than its solicitor and client costs and it is certainly less than the amount under the scale. The applicant has suggested that costs prior to the concession by the first respondent should not be ordered. However, I think her concerns are well and truly taken account of by the reduction from the $9,670 figure to the $7,000 figure sought by the Commonwealth so that even were I to agree with her on that, and I do not, I think the practical effect of the concession made by the Commonwealth is that the outcome sought by the applicant is more or less achieved in any event.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate: Angela Chong

Date: 14 February 2007