Minns v State of NSW (No 2) - [2002] FMCA 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINNS v STATE OF NSW (No. 2)

[2002] FMCA 197

COSTS – Public interest rule – costs in discrimination cases – no sufficient public interest to mitigate usual orders for costs – legal aid – s.47 Legal Aid Commission Act 1979 (NSW) does not apply to proceedings in Federal Magistrates Court.

Legal Aid Commission Act 1979 (NSW) ss. 34, 47

Ryan Wayne Minns v State of New South Wales (Department of Education & Training) [2002] FMCA 60
Bass v Permanent Trustee Co Limited (1999) 198 CLR 334
Physical Disability Council of NSW v Sydney City Council [1999] FCA 815
De Silva v Ruddock [1998] 311 FCA
Ruddock v Vadarlis (2001) 188 ALR 143
Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 1060
Oshlack v Richmond River Council (1998) 193 CLR 72
Kent v Cavanagh (1973) 1 ACTR 43
Tadawan v State of South Australia [2001] FMCA 25

Applicant:

RYAN WAYNE MINNS BY HIS NEXT FRIEND KAREN SAWYER

Respondent:

STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

File No:

SZ 604 of 2001

Delivered on:

2 September 2002

Delivered at:

Sydney

Hearing Date:

30 August 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr G Gemmell

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Respondent:

Ms C Ronalds

Solicitors for the Respondent:

Crown Solicitor’s Office

ORDERS

The applicant pay the respondent’s costs to be taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 604 of 2001

RYAN WAYNE MINNS
by his next friend KAREN SAWYER

Applicant

And

STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Respondent

REASONS FOR JUDGMENT

The applicant in the substantive proceedings is a young man who has the misfortune to suffer from Asperger’s Syndrome, Attention Deficit Hyperactivity Disorder and Conduct Disorder. In the substantive proceedings I found that these were disabilities which had caused him considerable difficulties in relation to his schooling. He brought proceedings under the HumanRights and Equal Opportunity Commission Act 1986 (Cth) against the State of New South Wales (Department of Education & Training) claiming that the State had breached provisions of the Disability Discrimination Act 1992 (Cth) in the manner in which he was treated at two high schools and by the Department in relation to the provision of certain services including distance education.
The findings which I made in the substantive proceedings (Ryan Wayne Minns v State of New South Wales (Department of Education & Training) [2002] FMCA 60) were essentially that the respondent had not treated the applicant less favourably than it would have treated another boy who manifested the same behaviour as that of the applicant. The proceedings were heard over six days in Port Macquarie and in Sydney. A large number of witnesses were called to give evidence on the part of the respondents and an even larger number gave evidence by way of affidavit.
At the end of my reasons for judgment I advised the parties that

I would allow them to be heard on costs. A hearing on costs took place before me on 30 August 2002. I was informed by counsel for the respondent that her instructing solicitors were required to take out a separate application for this hearing and pay a fee by the Registry. This was not intended. The hearing on costs was no more than a continuation of the proceedings. If it had taken place on the day on which I handed down judgment no fee would have been payable. To the extent that it is possible I would order that the fee be refunded.
The applicant in these proceedings has at all times been represented by the Legal Aid Commission of New South Wales. Legal Aid Commissions both fund private solicitors to appear on behalf of persons who are in receipt of legal aid and also act as solicitors themselves. In this case the latter occurred. There is provision in the Legal Aid Commission Act 1979 (NSW) (s.34(6)) in the following terms:
(6) As soon as practicable after the commencement of proceedings (not being proceedings with respect to a criminal offence), a solicitor acting on behalf of a legally assisted person shall give notice to the other parties, if any, to the proceedings of the fact that the solicitor is acting for a legally assisted person.
The purpose of this section is to warn any party to proceedings that it is dealing with a legally assisted person because of the effect of s.47 of the Legal Aid Commission Act which says:
47 Payment of costs awarded against legally assisted persons
(1)Where a court or tribunal makes an order as to costs against a legally assisted person:
(a)except as provided by subsections (2), (3), (3A), (4) and (4A), the Commission shall pay the whole of those costs, and
(b)except as provided by subsections (3), (3A), (4) and (4A), the legally assisted person shall not be liable for the payment of the whole or any part of those costs
(2) The Commission shall not pay an amount in excess of $5,000 (or such other amount as the Commission may from time to time determine):
(a) except as provided by paragraph (b), in respect of any one proceeding, or
(b) in respect of each party in any one proceeding, being a party who has, in the opinion of the Commission, a separate interest in the proceeding.
The amount of $5,000 has now been raised to $15,000. It is clearly very important that a non-assisted party knows that the other party is legally assisted and that there is a limitation on the amount of costs the non-assisted successful party might recover. In this case no letter was given. This is a breach of the Act but I do not find that it is one which would otherwise prevent s.47 from applying because all correspondence passing between the applicant’s solicitor and the respondent was on the letterhead of the Legal Aid Commission and there could be no doubt in the mind of the respondent that the applicant was represented by the Commission and therefore in receipt of legal aid.
However, in the context of this case the point is moot. This is because s.47 does not apply. The matter was considered in Bass v Permanent Trustee Co Limited by the Full Bench of the Federal Court and then by the High Court at (1999) 198 CLR 334 at 360-362. The Full Bench of the Federal Court had responded with the answer “no” to the question “Are the applicant’s protected by s.47 of the Legal Aid Commission Act 1979 (NSW) against liability for the payment of the whole or any part of the costs that might be ordered by the Court against them if unsuccessful in these proceedings?” Although the majority of the High Court declined to answer that question they made that point in the following way (at 362):
“It seems clear enough that were the question whether s.79 of the Judiciary Act “picks up” s.47 of the Legal Aid Commission Act to arise in proceedings to enforce a costs order of the Federal Court, it would be answered “No”. That is because s.43 of the Federal Court of Australia Act provides as to the costs of proceedings in that Court and, thus, otherwise provides for the purpose of s.79 of the Judiciary Act. It is clear that that was the issue intended to be raised by the question referred to the Full Court. However, that question has not yet arisen. Accordingly, question 5 should also have been answered “Inappropriate to answer”.
Kirby J did not agree with this view about the inappropriateness of the question. He felt at 374:
“there could scarcely be a more pressing and practical issue for both sides to have resolved by authoritative determination.”
In his view the answer given by the Full Court was the correct one. I am satisfied that s.47 does not apply to these proceedings as between the applicant and the respondent.
It was submitted by the applicant that even if s.47 did not apply, the monetary limit contained in it should be taken into account by me in exercising my discretion in relation to any order for costs. In Bass (more popularly known as the “Home Fund case”) Wilcox J had made orders pursuant to O 62A of the Federal Court Rules that the maximum costs which might be recovered on a party and party basis between the applicant and each of the respondents should be $12,500 (then the equivalent of the $5,000 referred to in s.47(2)). There is a very important distinction between the decision of Wilcox J in those cases and this case. Wilcox J had been asked to make his decision at what was almost the beginning of the case. Armed with that knowledge the respondents could make pragmatic decisions about the conduct of the proceedings. The situation is entirely different when the limitation is sought to be imposed after the case has concluded. The importance of Wilcox J’s orders was to put the respondent in the same position as it would have been if s.47 had applied although the order also benefited the applicant.
The respondent submits that the usual rule that costs follow the event should be followed. I have been offered two alternatives by way of orders in its favour. The first is to make an order for taxation of costs under the Federal Court Rules and the second is to assess the costs under the Federal Magistrates Court Rules in the sum of $70,000 which I am advised by counsel was a compromised figure and not the full amount expended.
The applicant argues that this is a public interest case and that therefore the usual order for costs should not be made. He says that there are a large number of people suffering from the same disabilities as himself who would have an interest in the outcome of these proceedings.

I have no doubt that this is true. He says that the respondent recognised that the case was important. I accept that through its counsel the State probably did say words to that effect but the importance referred to may well have been financial rather than matters of purely public interest.
There have recently been a number of decisions on public interest and costs including Physical Disability Council of NSW v Sydney City Council [1999] FCA 815, De Silva v Ruddock [1998] 311 FCA, Ruddock v Vadarlis (2001) 188 ALR 143, and Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 1060. In the High Court the matter was considered in Oshlack v Richmond River Council (1998) 193 CLR 72.
These cases seem to me to establish that if public interest is to be used to mitigate the normal order for costs then that public interest must go further than mere precedent value. There must be a public interest in the subject of the proceedings and once some exclusively personal benefit is sought the prospects of the proceedings having the necessary quality of public interest is much diminished. Thus in Ruddock v Vadarlis the public interest was the liberty of individuals who were unable to take action on their own behalf to determine their rights. In Kent v Cavanagh (1973) 1 ACTR 43 it was the erection of a communications tower on Black Mountain in Canberra. In Oshlack v Richmond River Council the subject was a land development at Evans Head. These were cases in which the usual rule as to costs did not apply but in De Silva v Ruddock, Physical Disability Council of NSW v Sydney City Council and Sluggett v HREOC the claims were more personal to the applicants and the appeal to the public interest exception was unsuccessful. Drummond J in Sluggett considered a decision of my own in Tadawan v State of South Australia [2001] FMCA 25 in which I had not awarded costs against an unsuccessful applicant in a discrimination case. That decision was given very shortly after the commencement of legislation which saw discrimination matters being finally decided in Federal Courts. It was also at the commencement of the existence of this court. Up until that time the preliminary determination of anti-discrimination matters federally and the final determination in the states was made in non-costs tribunals. There was concern in the community that putting these matters into a costs arena might discourage potential applicants from bringing their claims. The decision in Tadawan was always meant to be one made on its own facts and it has not been universally followed in the Federal Magistrates Court. To the extent that it may be considered a precedent for the non-imposition of costs orders in “deserving cases” this should no longer continue. I am satisfied that the superior courts have now made it clear what the law should be in relation to such applications in the anti-discrimination area and I am content to follow them.
There is an additional factor in this case. I am now informed that correspondence passed between the parties which resulted, on the first day of the hearing, of an offer being made by the respondent and rejected by the applicant. The negotiations relating to that offer (or more accurately earlier offers and counter-offers) indicate that there was at no time in the mind of the applicant any consideration other the payment of a sum of money. There was no request for an order or declaration that might have affected other persons suffering from his disability. I am satisfied that this is not a public interest case in which there should be any mitigation of the normal order for costs.
I am also satisfied that the fixed costs procedures set out in Schedule 1 of the Federal Magistrates Court Rules are not appropriate for this case. The question is whether to make an assessment in the sum of $70,000 as requested by the State or to require taxation. I received no evidence from the State as to how the amount of $70,000 was made up. I would be reluctant to make an award of such a large sum of money without some evidence. I think the most appropriate order is that the applicant pay the respondent’s costs to be taxed in accordance with the Federal Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: