Maguire v Sydney Organising Committee for the Olympic Games

[2000] FCA 1112

FEDERAL COURT OF AUSTRALIA

Maguire v Sydney Organising Committee for the Olympic Games [2000]
FCA 1112

BRUCE LINDSAY MAGUIRE v SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES & ANOR

N 707 OF 2000

HELY J
3 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 707 OF 2000

BETWEEN:

BRUCE LINDSAY MAGUIRE
APPLICANT

AND:

SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES
FIRST RESPONDENT

THE HON WILLIAM CARTER
SECOND RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

3 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Amended Application for Review be dismissed.

2.The first respondent pay the applicant’s costs of the proceedings, and the costs of the second respondent on a submitting basis.

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 707 OF 2000

BETWEEN:

BRUCE LINDSAY MAGUIRE
APPLICANT

AND:

SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES
FIRST RESPONDENT

THE HON WILLIAM CARTER
SECOND RESPONDENT

JUDGE:

HELY J

DATE:

3 AUGUST 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. Since 7 June 1999 proceedings instituted by the present applicant have been before the Human Rights and Equal Opportunity Commission.  The details of the proceedings do not matter for present purposes.  On 3 July 2000, the second respondent determined adversely to the first respondent, a challenge made by the first respondent to the jurisdiction of the second respondent to continue with the inquiry.  The first respondent sought, and the second respondent granted, an adjournment of the proceedings to enable the first respondent to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) for review of the second respondent's decision on jurisdiction.

2. The applicant requested the first respondent to institute those proceedings immediately and it did not do so.  Hence the applicant instituted its own proceedings seeking mandamus, judicial review of the decision to grant an adjournment and associated declaratory relief.  Those proceedings came on for directions on 11 July 2000, on which occasion I directed that the first respondent should lodge any application for review of the Commissioner's decision by 14 July 2000.

3. In discussion with counsel on that occasion, I understood that there was consensus that the substantial issue which would arise for determination, whether in the proceedings instituted by the applicant or in any application for review of the Commissioner's decision which might be lodged by the first respondent, was the issue of jurisdiction.  I am informed that on 17 July this year the first respondent notified the applicant that it did not propose to proceed with its challenge to the jurisdiction of the second respondent.  The inquiry which the second respondent adjourned, and which adjournment provoked these proceedings, is now scheduled to recommence on 8 August 2000, hence the further prosecution of these proceedings is academic.  The applicant proposes that they be dismissed.

4. The applicant, however, seeks an order for the costs of these proceedings, which is opposed by the first respondent, which in turn seeks an order that its costs of the proceedings should be paid by the applicant.  It seems to me that the need for these proceedings, and the costs which had been incurred in relation to them, arose entirely because the first respondent took a position before the second respondent which it insisted on having an opportunity to bring before this Court, but from which it now resiles.

5. In my view, the institution of the proceedings by the applicant was competent.  Firstly, either upon the claim for a declaration, or upon the claim for mandamus, the issue of jurisdiction of the second respondent would necessarily have arisen for decision.  Secondly, as the authorities referred to in the applicant's submission on the issue of costs indicate, a decision to grant or refuse an adjournment can be conduct which is reviewable, even though it might not amount of itself amount to a reviewable decision.

6. In those circumstances, it seems to me that it lies entirely at the foot of the first respondent that these proceedings were instituted, and that the only reason they are not being proceeded with is because it has resiled from the position which was the catalyst for the commencement of the proceedings.  In those circumstances, I think it is appropriate that the first respondent should pay the applicant’s costs of the proceedings.  I therefore dismiss the amended application for review and order that the first respondent pay the applicant’s costs of the proceedings and the costs of the second respondent on a submitting basis.

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

Associate:

Dated:             9 August 2000

Solicitor for the Applicant:	Public Interest Advocacy Centre
Counsel for the Respondent:	Ms J Oakley
Solicitor for the Respondent:	Barker Gosling
Date of Hearing:	3 August 2000
Date of Judgment:	3 August 2000