Librizzi v Flower Power Pty Ltd - [2000] FCA 1500

FEDERAL COURT OF AUSTRALIA
Librizzi v Flower Power Pty Ltd [2000] FCA 1500
COSTS – relevance of a grant of legal aid to the unsuccessful party – whether the conduct of the parties before the Human Rights and Equal Opportunity Commission is a proper circumstance to consider on the issue of costs
HUMAN RIGHTS – costs on judicial review of a decision of the Commission
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court of Australia Act 1976 (Cth), s 43
Sex Discrimination Act 1984 (Cth), s 81
Legal Aid Commission Act 1979 (NSW), s 47
Re Sanchez Ex parte Smits & Anor (1994) 49 FCR 326
Woodlands v Permanent Trustee Company Ltd (1996) 139 ALR 127
Thomas Fischer v Commonwealth of Australia [1997] FCA 1029 (25 September 1997)
Legal Aid Commission of New South Wales, Policy Bulletin No. 3/99
DENISE LIBRIZZI v FLOWER POWER PTY LTD
N 307 of 1999
EINFELD J
25 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 307 of 1999

BETWEEN:

DENISE LIBRIZZI
Applicant

AND:

FLOWER POWER PTY LTD
Respondent

JUDGE:

EINFELD J

DATE OF ORDER:

25 OCTOBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. there be no order as to costs
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 307 of 1999

BETWEEN:

DENISE LIBRIZZI
Applicant

AND:

FLOWER POWER PTY LTD
Respondent

JUDGE:

EINFELD J

DATE:

25 OCTOBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 20 July 2000 I published my reasons for judgment in these proceedings (the judgment) dismissing the applicant’s application for judicial review of a decision of the Human Rights and Equal Opportunity Commission (the Commission) made on 16 March 1999. The primary issue dealt with in the judgment was whether the Commission had made a reviewable error of law – as that phrase is understood in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – in deciding that whilst the applicant had been discriminated against on the basis of her pregnancy in contravention of the Sex Discrimination Act 1984 (Cth) (the Act), such discrimination did not amount to her having been constructively dismissed from the respondent’s employ. The sufficiency of the Commission’s award of $2000 by way of damages was also in issue. My determination of these issues was reached on the documentary evidence and written submissions, including the transcript of the proceedings before the Commission, without an additional oral hearing. As no submission asked for costs, I made no order.
Some three weeks after the judgment, the respondent’s solicitor advised my Associate of his intention to apply for an order for costs. He has subsequently done so in writing, seeking an order that the applicant pay his client’s costs as agreed or assessed, and the applicant has responded.
THE SUBMISSIONS OF THE PARTIES ON THE ISSUE OF COSTS
The respondent made two submissions in support of…

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: [2000] FCA 1500
Decision Date: 25 OCTOBER 2000

CaseChat Overview and Summary

In the case of Librizzi v Flower Power Pty Ltd, the dispute arose from an application for judicial review following a decision made by the Anti-Discrimination Board of New South Wales. The applicant, Librizzi, sought to challenge the Board's decision on the basis of alleged unlawful discrimination. The respondent, Flower Power Pty Ltd, opposed the application, and the matter was heard in the Federal Court of Australia. The central issue before the court was whether the applicant should be granted costs for the judicial review proceedings, despite the application being unsuccessful. The court had to determine the appropriate circumstances under which costs should be awarded in such cases and whether any delay in the application for costs impacted the decision.

The court examined the nature of the proceedings and the outcome, noting that the original decision by the Anti-Discrimination Board found in favor of the applicant and awarded damages for unlawful discrimination. The court also considered the efficiency of the proceedings in the Federal Court, which were conducted on documentary evidence without the need for an oral hearing. Additionally, the court highlighted that the Board's decision was not found to contain any judicially reviewable errors of law. The court rejected the notion that the conduct of the parties in the initial proceedings or the costs incurred there should influence the decision on costs in the Federal Court. The court further noted that the applicant's receipt of legal aid was irrelevant to the issue of costs, in line with a prior Full Court decision.

Based on these considerations, the court concluded that there should be no order as to costs. Despite the applicant's arguments not being particularly compelling, the court recognised that she had a sufficiently arguable case to justify proceeding with the judicial review. The court also emphasized that imposing costs on the applicant would undermine the objectives of the Anti-Discrimination Act by placing an undue financial burden on her. The court appreciated that the applicant had facilitated the proceedings by providing a copy of the transcript, which otherwise would have incurred additional costs. The court's decision aimed to balance the need to discourage frivolous applications while ensuring that the applicant was not unfairly burdened.

The final order of the court was that there be no order as to costs, reflecting the nuanced considerations and the court's intention to uphold the principles of fairness and efficiency in judicial review proceedings.

Orders

Orders of the court

1. there be no order as to costs

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EINFELD J

Whilst a proper consideration on the costs issue generally, the three week delay from the date of judgment to the date on which the respondent’s solicitor indicated his intention to apply for costs, also did not add anything of relevance to the application as neither the Court nor the applicant was inconvenienced or prejudiced by the delay.CONCLUSION It is my opinion that the circumstances of this case dictate a conclusion that there be no order as to costs. Although I did not find particularly compelling the applicant’s contentions on the merits of her application for judicial review, with the result that these proceedings have ended her litigation precisely as it was after the Commission’s decision, it cannot be doubted that she had a sufficiently arguable case to justify the taking of her complaint further. Moreover, a costs order against the applicant in this case would undermine the purposes and objectives of the Act in that it would result in the imposition of a heavy financial burden on her despite the fact that she has successfully established unlawful discrimination. That the applicant made it possible for the parties to conduct the proceedings in this Court without the need for an oral hearing by making available her copy of the transcript is also a matter weighing in support of her argument on costs. Without such assistance someone else would have had to carry the quite significant burden of obtaining a copy, with the likely result of considerably greater cost to the respondent.

Ratio Decidendi

Legal Principle Established

Established by: EINFELD J

As appears to me, the most significant circumstances of this case are:(i)that the result of the proceedings before the Commission were essentially a finding in her favour of unlawful discrimination and a resultant award of $2000 for the damage she sustained as a product of that discrimination;(ii)that the proceedings in this Court were conducted with the consent of the parties solely on the documentary material submitted by them and forwarded by the Commission, with the aid of their written submissions but without the expense and delay of oral evidence or argument; and(iii)that the Commission was not found to have made any judicially reviewable error of law.IRRELEVANT CONSIDERATIONS In my view, neither the conduct of the parties in the proceedings before the Commission nor the likely costs incurred by each party in those proceedings is relevant to the awarding of costs in the proceedings now before this Court. The clear legislative intention is that the parties bear their own costs in mounting or defending proceedings in the Commission, and it would be quite improper for me to ignore or circumvent that intention by treating the proceedings in this Court on the very same issue in any different way. Otherwise an unfortunate precedent might be created whereby parties before the Commission would be encouraged to appeal simply in the hope of having their costs in the proceedings before the Commission met, at least in part, by a costs order in this Court. Moreover, I am bound by the decision of a Full Court of this Court (Wilcox, Burchett and Olney JJ) in Woodlands v Permanent Trustee Company Ltd (1996) 139 ALR 127, whose reasoning I might respectfully add I find entirely convincing, to find that the applicant’s grant of legal aid is irrelevant to the issue of costs. It is not correct, as the respondent submitted, that the Legal Aid Commission is required to pay all adverse costs orders made against its grantees: s 47 of the Legal Aid Commission Act 1979 (NSW). In this case it would be bound to do so but if it were a relevant consideration, this consequence may well add a separate question of public interest to the applicable considerations. Whilst a proper consideration on the costs issue generally, the three week delay from the date of judgment to the date on which the respondent’s solicitor indicated his intention to apply for costs, also did not add anything of relevance to the application as neither the Court nor the applicant was inconvenienced or prejudiced by the delay.CONCLUSION It is my opinion that the circumstances of this case dictate a conclusion that there be no order as to costs. Although I did not find particularly compelling the applicant’s contentions on the merits of her application for judicial review, with the result that these proceedings have ended her litigation precisely as it was after the Commission’s decision, it cannot be doubted that she had a sufficiently arguable case to justify the taking of her complaint further.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 307 of 1999

BETWEEN:	DENISE LIBRIZZI Applicant
AND:	FLOWER POWER PTY LTD Respondent
JUDGE:	EINFELD J
DATE OF ORDER:	25 OCTOBER 2000
WHERE MADE:	SYDNEY

JUDGE:	EINFELD J
DATE:	25 OCTOBER 2000
PLACE:	SYDNEY