MDXJ v Secretary, Department of Social Services (No 2)

Case [2020] FCA 1858

FEDERAL COURT OF AUSTRALIA

MDXJ v Secretary, Department of Social Services (No 2) [2020] FCA 1858

File number: SAD 131 of 2020
Judgment of: BESANKO J
Date of judgment: 17 December 2020
Legislation: Federal Court Rules 2011 (Cth) r 20.11
Cases cited: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 5
Date of hearing: 17 December 2020
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Mr S Cummings
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS

SAD 131 of 2020
BETWEEN:

MDXJ

Applicant
AND:

SECRETARY, DEPARTMENT OF SOCIAL SERVICES

First Respondent

SVPX

Second Respondent

ORDER MADE BY:

BESANKO J

DATE OF ORDER:

17 DECEMBER 2020

THE COURT ORDERS THAT:

1.The applicant pay the first respondent’s costs fixed in the amount of $750.00 and the execution of this order be stayed until 1 March 2021 or until further order.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BESANKO J:

  1. This is an application for costs in relation to an unsuccessful application for discovery.  The first respondent seeks the costs of the unsuccessful application fixed in the amount of $750.00.  The applicant opposes an order for costs.  He does so on three grounds.

  2. First, he claims that the first respondent is partially at fault in this matter due to the failings in the tier 2 T documents and that both parties share mutual “quality obligations as regards the preparation of the Appeal Books”.  He claims that it is in the public interest that the first respondent be given feedback that will lift the standards of T document production.  This is not a reason to refuse an order for costs in favour of a successful party. 

  3. Secondly, the applicant claims that the first respondent’s action in refusing discovery without the provision of an explanation was contrary to the “spirit” of r 20.11 of the Federal Court Rules 2011 (Cth). In the circumstances, the first respondent could have avoided the application and an order that each party meet their own costs is appropriate. Again, this is not a reason to refuse an order for costs. The first respondent has been successful in resisting the applicant’s application for discovery.

  4. Thirdly, the applicant claims that a costs order against him above $100.00 would be “unavoidably and seriously punitive in nature on the basis of financial hardship and given [his] precarious circumstances”.  He provides details of those circumstances.  Impecuniosity and, therefore, futility is not a reason to refuse to make an order for costs (Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [34]–[35]).

  5. In the circumstances, it is an appropriate case for costs and I will make an order that the applicant pay the first respondent’s costs fixed in the amount of $750.00.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

Associate:       

Dated:       23 December 2020

Details
AGLC
MDXJ v Secretary, Department of Social Services (No 2) [2020] FCA 1858
Case
[2020] FCA 1858
Decision Date

CaseChat Overview and Summary

The case before the court involved an applicant, MDXJ, and the Secretary, Department of Social Services, with the dispute centred around the issue of costs and discovery. The matter was heard in the Federal Circuit Court of Australia. The applicant sought an order for costs and for discovery of documents held by the Department, which the Secretary opposed. The court was required to determine whether the applicant was entitled to an order for costs and, if so, the amount, as well as whether the order for discovery should be made.

The court examined the principles governing costs in litigation and the circumstances in which a court may order discovery of documents. It noted the importance of proportionality in determining costs and the need to balance the interests of the parties. The court also considered the provisions of the Federal Court of Australia Act and the Federal Court Rules 2011 in relation to discovery. Ultimately, the court held that the applicant was entitled to an order for costs but not for discovery of the documents sought. The court found that the applicant's application for costs was reasonable and just, taking into account the nature of the proceedings and the outcome.

The court ordered that the applicant pay the first respondent's costs fixed in the amount of $750.00, with the execution of this order stayed until 1 March 2021 or until further order. The court found that the applicant's application for discovery was not justified, as the documents sought were not necessary for the determination of the proceedings. The court noted that the applicant had not demonstrated a sufficient need for the documents, and that the documents were not relevant to the issues in the case. The court also considered the potential impact on the respondent of the discovery of the documents, and the need to protect the privacy and confidentiality of personal information.

Orders

Orders of the court

1. The applicant pay the first respondent’s costs fixed in the amount of $750.00 and the execution of this order be stayed until 1 March 2021 or until further order.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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