Noble v Baldwin & Anor (No.2)
[2011] FMCA 700
•8 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NOBLE v BALDWIN & ANOR (No.2) | [2011] FMCA 700 |
| HUMAN RIGHTS – Competing costs applications – relevant principles. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Federal Magistrates Act 1999 (Cth), s.79 Racial Discrimination Act 1975 (Cth), s.18C, 18E Sex Discrimination Act 1984 (Cth), s.28B, 94, 106 Federal Magistrates Court Rules, r.21.02 |
| Alpine Hardwoods (Aust) Pty Ltd and Another v Hardys Pty Ltd and Another (No 2) (2002) 190 ALR 121; [2002] FCA 224 Calderbank v Calderbank [1975] 1 All ER 333; [1975] 3 WLR 586 Noble v Baldwin & Anor [2011] FMCA 283 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 University of Western Australia v Gray(No 21) (2008) 249 ALR 360; [2008] FCA 1056 |
| Applicant: | TSARA NOBLE |
| First Respondent: | PAUL BALDWIN |
| Second Respondent: | R & P PTY LIMITED |
| File Number: | SYG 437 of 2009 |
| Judgment of: | Barnes FM |
| Last date of submissions: | 24 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Gillis Delaney Lawyers |
ORDERS
The respondents pay 50 per cent of the applicant’s costs, including reserved costs, as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 437 of 2009
| TSARA NOBLE |
Applicant
And
| PAUL BALDWIN |
First Respondent
| R & P PTY LIMITED |
Second Respondent
REASONS FOR JUDGMENT
The applicant Ms Noble brought proceedings in this court alleging breaches by the respondents of the Racial Discrimination Act 1975 (Cth) (the RDA) and the Sex Discrimination Act 1984 (Cth) (the SDA). She succeeded in part.
On 28 April 2011 I ordered that the respondents pay the applicant damages of $2,000 by way of compensation for unlawful discrimination pursuant to s.46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) (see Noble v Baldwin & Anor [2011] FMCA 283). The parties subsequently filed written submissions in relation to costs. Each sought costs orders. For the reasons that follow I am satisfied that the respondents should pay 50 per cent of the applicant’s costs as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
The competing claims
Ms Noble, who was represented at various times during these proceedings (including during the hearing), is now self-represented. In submissions she sought that the respondents pay the actual costs incurred by her as detailed in the appendices to her submissions, including all costs and expenses said to have been included in invoices from her original solicitors Watkins Tapsell for the period from 7 April 2008 to 25 January 2010, all amounts included in invoices from Mr Tynan of counsel who appeared for her at the hearing and from Dr Smith who gave evidence on her behalf. In addition, she sought to recover what she described as her costs (consisting of claims for her travel and parking expenses and the time she spent in court or at mediation on an hourly basis). There was no explanation of the basis on which she sought such costs.
This claim may be seen as an application for costs on a solicitor and client or indemnity basis (instead of a party/party basis). It also seeks compensation for the time spent by Ms Noble personally. No reasons were given for costs to be awarded in favour of Ms Noble on such a basis (cf Australian Transport Insurance Pty Ltd and Another v Graeme Phillips Road Transport Insurance Pty Ltd and Another (1986) 10 FCR 177; [1986] FCA 85 and Cachia v Hanes and Another (1994) 179 CLR 403; [1994] HCA 14).
For their part, the respondents submitted that the appropriate order in the circumstances of these proceedings was that no order for costs should be made in favour of the applicant and that she should pay the respondents’ costs of the proceedings on an indemnity basis either from 3 April 2009 or from 22 December 2009. In the alternative it was sought that she should pay their costs of the proceedings on the ordinary basis from either such date. The respondents sought that any such costs be calculated as agreed or taxed in accordance with the Federal Court Rules.
These submissions were put on the basis that the respondents had made two offers to settle Ms Noble’s claim (on 27 March 2009 and 18 December 2009) in accordance with the principles in Calderbank v Calderbank [1975] 1 All ER 333; [1975] 3 WLR 586. It was acknowledged that the general rule is that costs follow the event but submitted that there was reason to depart from this general rule. It was said that regard should be had to the fact that Ms Noble had been unsuccessful in the majority of her claims; that the proceedings had been unreasonably delayed and extended by repeated defaults and breaches of directions by Ms Noble; that she had rejected offers of settlement made at an early stage when legally represented and that she had in turn made what were said to be inflated and unrealistic offers of settlement.
In submissions in reply Ms Noble contended that she had been partially successful and that she had not been imprudent in rejecting the Calderbank offers, there being “[r]easonable reasons” for such rejection.
The issue of costs was dealt with by way of written submissions.
The respondents sought that correspondence between the parties’ legal representatives in relation to settlement offers be treated as tendered in relation to the costs applications. The applicant referred to and did not object to such evidence being before the Court. It is appropriate to treat the copies of the letters from Gillis Delaney to Watkins Tapsell of 27 March 2009, from Watkins Tapsell to Gillis Delaney of 29 May 2009, from Gillis Delaney to Watkins Tapsell of 18 December 2009, and from Watkins Tapsell to Gillis Delaney of 23 December 2009, annexed to the respondents’ submissions of 9 June 2011 as tendered in relation to the issue of costs. This bundle of documents has been marked Exhibit A.
Applicable principles
The Federal Magistrates Court has an unfettered discretion under s.79 of the Federal Magistrates Act 1999 (Cth) to award costs, provided such discretion is exercised judicially and in the context of the relevant court rules (see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65] per McHugh J).
Part 21 of the Federal Magistrates Court Rules contains provisions relating to costs. Relevantly, r.21.02(2) provides that, in making an order for costs in a proceeding, the Court may set the amount of the costs, set the method by which the costs are to be calculated, or refer the costs for taxation under the Federal Court Rules.
Ordinarily costs “follow the event” in that the costs of the successful party to an application are paid by the unsuccessful party. There are, however, exceptions to the usual principle, or circumstances in which such an order is not made (see Oshlack at [40] per Gaudron and Gummow JJ).
Relevantly, in Hughes v Western Australian Cricket Association Inc & Ors (1986) ATPR 40-748; [1986] FCA 382 at [9] Toohey J stated:
1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar (1893) 1 QB 564.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at 12.
Such observations are applicable to the jurisdiction of this court. It is also relevant to note that there are no specific legislative provisions relating to costs in unlawful discrimination proceedings. In the absence of such provisions, the usual principles as to costs apply (see Fetherston v Peninsula Health and Others (2004) 137 FCR 262; [2004] FCA 594 at [9] per Heerey J).
The Calderbank offers
It is convenient to consider first the respondents’ submissions that they should have an award of costs in their favour from the time of the applicant’s non-acceptance of either of the Calderbank offers.
First, there is no suggestion that any offer of compromise was made by any party pursuant to Order 23 of the Federal Court Rules (as then in force). Order 23 was applicable in the proceedings in this court by virtue of Part 2 of Schedule 3 to the Federal Magistrates Court Rules. However it is not a code (see University of Western Australia v Gray(No 21) (2008) 249 ALR 360; [2008] FCA 1056 at [31]). It does not exclude the parties from being able to rely upon an offer made in accordance with the principles in Calderbank v Calderbank.
The respondents submitted that offers had been made to the applicant to settle this matter that were purportedly Calderbank offers, that the offers had been rejected, and that there had been a more favourable result to the offerors in the proceedings. It was acknowledged that there was no presumption that the rejection of such an offer and the subsequent failure by the party who had rejected the offer to achieve a better outcome than that provided for in the offer led to an entitlement to indemnity costs. Rather, if a party did seek indemnity costs in such circumstances, it was necessary to demonstrate that the other party’s refusal of the Calderbank offer was unreasonable (see CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 at [75]).
It is not sufficient that the offer was a reasonable one. The question of unreasonableness in each case is to be “judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree’s rejection unreasonable” (CGU at [75]).
Rejection of an offer by a person who fails thereafter to receive a better outcome is but one factor to which the court may have regard (see Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 at [7] and Seven Network Ltd and Another v News Ltd and Others (2007) 244 ALR 374; [2007] FCA 1489 at [66]). As Giles JA stated in SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37]:
All the circumstances must be considered, and while the policy informing the regard had to a Calderbank letter is promotion of settlement of disputes, an offeree can reasonably fail to accept an offer without suffering in costs. In the end the question is whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs, and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure.
The respondents’ first offer was made by letter of Friday 27 March 2009 from their solicitors (Gillis Delaney) to the applicant’s then solicitors, Watkins Tapsell. The offer, made without prejudice save as to costs, was an offer to settle Ms Noble’s claim against the respondents by payment to her of $2,000 and her costs of the proceedings as agreed or assessed on the basis that the proceedings be dismissed. This offer was open for acceptance until 5 pm on 3 April 2009. It was said to be made in accordance with the principles in Calderbank v Calderbank. This offer was not accepted by Ms Noble.
The respondents submitted that they should recover costs from the date of the expiry of this offer on an indemnity basis or, in the alternative, on the ordinary basis. It appears that the reference to 5 April 2009 in their written submissions is intended to be a reference to 3 April 2009, the date of expiration of the initial offer.
The respondents offered a payment to the applicant that was equivalent to that which she ultimately achieved. She had the benefit of legal advice at the time. This offer was made before the first court date of 31 March 2009. It was submitted that had it been accepted there would have been a substantial saving in wasted costs.
The respondents contended that the applicant’s rejection of this offer was unreasonable. Reliance was placed on the remarks by Driver FM in Forbes v Commonwealth of Australia (No.2) [2003] FMCA 262 at [6]. His Honour cited Calderbank as authority for the proposition that indemnity costs are available where offers of settlement have been made at an early stage of proceedings and the unsuccessful party has failed to achieve a better result than that expressed in the offer. Driver FM suggested at [6] that this principle would apply to a “successful party who [did] no better than an offer made to him or her prior to a hearing”.
It is well-established that refusal of an offer which satisfies the requirements of a Calderbank letter does not of itself warrant an order for indemnity costs. The onus is on the offeror to show that the conduct of the offeree was unreasonable viewed in light of all the surrounding circumstances which existed at the time the offer was rejected (see Facton Ltd (formerly known as G-Star Raw Denim KFT) and Others v Seo (2011) 91 IPR 135; [2011] FCA 344 at [55], and cases cited therein).
As the Full Court of the Federal Court stated in CGU at [75]:
From the tenor of claims which have come before the court in recent years, there appears to be a view abroad that the failure of a party who has rejected a Calderbank offer ultimately to achieve a better outcome than provided for in the offer leads to a presumptive entitlement to indemnity costs with respect to the period subsequent to the offer. Such a view would be mistaken. Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules. However, where recourse is not had to the O 23, but reliance is placed upon the court’s general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party’s refusal of the Calderbank offer was unreasonable: Black v Lipovac [1998] FCA 699; (1998) 217 ALR 386, 432; Maniotis v JH Lever & Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224; (2002) 190 ALR 121, 128 [35]; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42, [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree’s rejection unreasonable.
In relation to the offer itself, regard must be had, insofar as is possible on the evidence before the court, to the genuineness of the offer, whether it was realistic, the point of time at which it was made and whether in all the circumstances it was such a reasonable offer as required the offeree to give it careful consideration. The circumstances of the litigation and the parties’ understanding of the strengths and weaknesses of their respective cases at the time of the offer can be relevant (see Management 3 Group Pty Ltd (ACN 100 863 036) (in liq) and Another v Lenny’s Commercial Kitchens Pty Ltd(ACN 009 044 295) and Another (No 3) (2011) 278 ALR 754; [2011] FCA 725 at [38] – [41).
The respondents did not suggest that either or both of the Calderbank letters should be looked at in isolation. Rather, it was acknowledged that it was relevant to have regard to all the circumstances, including the fact that the applicant was unsuccessful in the majority of her claims; the extent to which delay was occasioned by default by the applicant; the fact that she was represented; what were said to be inflated and unrealistic offers of settlement by her; and her rejection of the respondents’ offers.
However it has not been established that the applicant’s rejection of this offer was unreasonable or imprudent or otherwise such as to warrant the award of costs on the basis sought by the respondents (see Facton at [55], and Alpine Hardwoods (Aust) Pty Ltd and Another v Hardys Pty Ltd and Another (No 2) (2002) 190 ALR 121; [2002] FCA 224 at [8] – [10]).
The proceedings in this court were commenced on 25 February 2009. The applicant ultimately complained of sexual harassment (in a number of incidents) contrary to the SDA, victimisation under the SDA and a breach of the racial hatred provisions and victimisation under the RDA. She contended generally that she was sexually harassed during her employment and that racial comments were made to her by Mr Baldwin, the first respondent, that she was exposed to constant sexual remarks made by him either directed to her or to others, that R & P Pty Ltd (their employer) and the second respondent, had not responded to complaints made by her and that she had been victimised after formal complaints of the alleged conduct had been made.
She originally sought an unquantified amount for damages and medical expenses together with loss of income of $4,835.52 as at 1 December 2008 said to be continuing at $142.77 per week and interest and costs.
In a response of 19 March 2009 the respondents opposed all the orders sought by the applicant on the basis that the conduct alleged did not take place, or if it did, it did not constitute unlawful discrimination. The first return date was 31 March 2009.
It was in that context that the offer of 27 March 2009 was made.
The offer was for a payment of $2,000 (which was the amount ultimately awarded) and also payment of the applicant’s costs of the proceedings as agreed or assessed. However this offer was made at a time when no points of claim or defence, let alone any affidavit evidence, had been filed. It cannot be said that each party had or could have been expected to have an understanding of their respective positions at that time, other than in very general terms.
The time given to respond to the offer was a period of one week.
In contrast, the time for accepting an offer made in accordance with former O.23 of the Federal Court Rules had to be not less than 14 days beginning on the day after the offer was made. The offer was for a figure of somewhat less than half the claimed loss of income component of the applicant’s claim, without explanation as to how that quantum was arrived at by the respondents. Although, with the benefit of hindsight, the offer may be seen as a realistic or genuine offer of compromise because it was the same as the damages ultimately awarded to the applicant (see Maitland Hospital v Fisher[No 2] (1992) 27 NSWLR 721, and Manly Council v Byrne (No 2) [2004] NSWCA 227) it was apparent at that time that the applicant intended to claim more than the loss of income quantified in the original application. The grounds of opposition in the response cannot be said to be comprehensive or to shed any light on the prospects of success of the respondents’ case (see Alpine Hardwood at [28]). The respondents had not filed any evidence at that stage.
I do not accept the applicant’s contention that it could not be regarded as a coincidence that 3 April was her birthday and that this was a fact well known to the first respondent as relevant to whether or not it was reasonable to accept the first offer. However, having regard to the timing of the offer, the circumstances of the case, the material filed at that time and the length of the time given to the applicant to accept the offer, I am not satisfied that it was unreasonable for the applicant to reject this offer or that the circumstances warrant an order for indemnity costs in favour of the respondents from that time.
A settlement offer was subsequently made by the applicant through her then solicitors on 29 May 2009 in the amount of $75,000 plus costs of $16,000. This was, in retrospect, somewhat unrealistic. This offer remained open for 14 days. It was not accepted.
The second settlement offer by the respondents was made on Friday 18 December 2009. The offer was to pay Ms Noble $10,000 in respect of her claim and $10,000 as an agreed amount for costs and disbursements on the basis that the proceedings be discontinued and there be mutual releases by way of deed. It was open to acceptance until 4 pm Tuesday 22 December 2009. The letter to Ms Noble’s solicitors advised that if the offer was not accepted, the respondents’ solicitors were instructed to indicate that no further offers of settlement would be made. This offer was also said to be made in accordance with the principles in Calderbank v Calderbank.
This offer was not accepted. Instead, on 23 December 2009 the then solicitors for Ms Noble wrote to the respondents’ solicitors advising that Ms Noble had instructed them to reject the offer of settlement and to make a counter-offer to accept the sum of $45,000 for the claim plus $30,000 in costs in accordance with the principles in Calderbank v Calderbank. Such offer was open until midday, 24 December 2009. That offer was not accepted.
The respondents submitted that the second offer made by them in December 2009 offered the applicant five times the result she achieved following the hearing and was made following the service of the parties’ evidence-in-chief and that the applicant should pay their costs (preferably on an indemnity basis) from that time.
While orders for the parties to file and serve affidavits had been made by the court on several occasions prior to December 2009, the applicant had failed to comply in relation to the time for filing of her evidence. By the time of the second offer by the respondents she had filed and served her evidence (in some respects belatedly) as well as amended points of claim. There were obvious deficiencies in her amended points of claim and on 20 October 2009 the court had ordered that she file and serve further amended points of claim containing specified particulars on or before 3 November 2009. Further amended points of claim were filed on 4 November 2009. In accordance with the orders made by the court the respondents filed points of defence on 25 November 2009. They had not, however, filed any affidavit evidence on or before 1 December 2009 as ordered. Rather, they filed an application in a case on 3 December 2009 seeking in effect to strike out certain aspects of the further amended points of claim and/or dismissal of certain parts of the application.
The application in a case was listed for hearing on 15 December 2009. However on that day the parties agreed to consent orders striking out certain paragraphs of the further amended points of claim and dismissing part of the application in a case. The remaining part of the application in a case was listed for hearing on 12 February 2010.
The applicant was given leave to file further further amended points of claim on or before 5 February 2010.
In other words, no evidence (other than an affidavit addressing procedural matters in support of the application in the case filed on 3 December 2009) had been filed by the respondents at the time of the offer of 18 December 2009. The respondents’ evidence was not filed until after the applicant filed second further amended points of claim on 5 February 2010. In fact the respondents failed to file their evidence within the time provided for in orders made on 12 February 2010 (albeit the delay was only in the order of a week).
This offer did offer the applicant five times the result she achieved following the hearing. It did not trivialise her claim. However while the applicant had access to the respondents’ points of defence, it cannot be said that she was clearly in a position to assess the strength of the respondents’ case and any prospects of success. Moreover the offer was open only for a very short period, between 18 December 2009 and 22 December 2009. This was a shorter period than the period for the first offer and considerably shorter than the 14 days provided for in relation to an O.23 offer.
In all the circumstances I am not satisfied that it was unreasonable for the applicant to reject this offer, having regard to the fact that it was made before any evidence of the respondents was filed and the time given to consider it in light of the need for the applicant make inquiries to satisfy herself as to her prospects of success in circumstances where she had the opportunity to further amend her points of claim (see Alpine Hardwood at [31] – [37] and Iliff v Sterling Commerce (Australia) Pty Ltd (No.2) [2008] FMCA 38).
Having regard to the fact that it was not unreasonable for the applicant to reject either of the respondents’ offers of settlement, in all the circumstances I am not persuaded that it is appropriate that she should be ordered to pay the respondents’ costs on an indemnity basis, whether from the time of the first offer, the second offer or otherwise. Nor, for the reasons above and those that follow, am I satisfied that the applicant should pay the respondent’s costs on the ordinary basis from the time of either of these offers.
Appropriate costs order
That leaves for consideration the issue of whether the respondents should pay the applicant’s costs or whether an order for costs should be made in the applicant’s favour and, if so, the nature and extent of such an order. First, there is no basis for any award of costs in favour of Ms Noble to be on an indemnity basis. Nor is there any basis on which she can recover her costs in relation to the times when she was self-represented (including in relation to the costs applications).
Otherwise, as indicated above, the starting point is that the usual order as to costs is that the costs of the successful party to an application are paid by the unsuccessful party. I have borne in mind that where, as here, a litigant has succeeded only upon a portion of his or her claim, the circumstances may make it reasonable for a litigant to bear the expense of litigating the portion upon which there has been failure. In some circumstances the successful party who has failed on certain issues may not only be deprived of the costs of those issues but may also be ordered to pay the other party’s costs of them (see Hughes).
The respondents submitted that there was reason to depart from the general rule that costs follow the event because of the applicant’s lack of success in the majority of her claim, the unreasonable delay caused by her repeated defaults and breaches of directions, her rejection of the early settlement offers, the fact that she had legal representation, and what were said to be inflated and unrealistic offers of settlement made by her.
A number of factors have been identified as relevant to the discretion to order costs, in particular in human rights matters, including the existence of a public interest element to the complaint, the parties’ representation or lack of representation and whether they are in a position to assess the risk of litigation, the need to prevent the successful party from losing the benefit of his or victory, as well as to discourage litigants from bringing unmeritorious claims. Conduct which unnecessarily prolongs or increases the costs of the litigation by reason of the need to determine issues on which the successful party has failed is also relevant.
While the applicant was unsuccessful in significant parts of her claim, I am not satisfied that those claims amounted to totally groundless contentions or that the circumstances are otherwise such as to warrant any award of costs against her. It is the case that there were a considerable number of directions hearings and mentions required before this matter came on for final hearing, which to a large extent (although not entirely) reflected her delay in filing affidavit evidence and amended or further amended points of claim.
The applicant was represented by lawyers at some but not all times during the course of the proceedings. Her initial representation ceased in January 2010. She obtained further legal representation shortly before what was intended to be the hearing date. The hearing was adjourned to enable her new legal representative to familiarise himself with the matter and to enable Ms Noble to file and serve fresh affidavit evidence-in-chief in proper form in lieu of affidavits which had previously been sworn by her. She was ordered to pay the respondents’ costs thrown away by reason of vacation of the hearing date and the leave granted to her to file further evidence. I do not consider that that aspect of the delay has further relevance in relation to the present costs issue.
I have borne in mind the need to prevent the successful party from losing the benefit of that success as well as the need to discourage unmeritorious claims. In Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229; [2001] FCA 1865 Black CJ and French J pointed out at [9] that the court’s discretion in relation to costs “must be exercised judicially and not against the successful party except for some reason connected with the case.” This principle has been applied in human rights matters, both in the Federal Court (see Fetherston v Peninsula Health per Heerey J) and the High Court (see Purvis v State of New South Wales (Department of Education and Training) and Another (2003) 217 CLR 92; [2003] HCA 62).
Neither party made any submissions in relation to a possible public interest in determination of the applicant’s claims. This was a matter in which the applicant stood to benefit personally from the decision.
It was not a case which could be described as a test case in the sense considered by Crennan J in Jacomb v The Australian Municipal, Administrative, Clerical & Services Union [2004] FCA 1600 at [10] (also see Lawrance v Cth of Aust & Ors and Lawrance v AAT & Ors [2008] FMCA 1340 at [553] – [562]), albeit I recognise that in one sense all human rights proceedings may be seen as containing some element of public interest, having regard to the remedial nature of the legislation. However the legislation confers private rights of action and this case does not raise any issue of public importance, other than as mere precedent value (see Minns v State of NSW (No.2) [2002] FMCA 197) and cf. Oshlack v Richmond River Council at [49], [70] and [136]). In particular, the case in relation to the claims in which the applicant was unsuccessful cannot be said to have raised significant issues as to the interpretation and future administration of the SDA and the RDA.
It is relevant to have regard to the fact that the applicant was only partially successful in her claim. She was entirely unsuccessful in her claim of breach of the racial hatred provisions of the RDA. Similarly, she was entirely unsuccessful in her claim of victimisation contrary to either the RDA or the SDA. These claims were a significant part of her claims. She made a number of allegations of sexual harassment contrary to the SDA in relation to what may be described as eight categories of conduct. She was successful in relation to only three of these categories of conduct. In her second further amended points of claim, she sought a sum of $70,000 for non-economic loss and the sum of $12,125.63 for economic loss. She was awarded $2,000 for non-economic loss but failed to establish any entitlement to economic loss. Notwithstanding this characterisation, I have borne in mind that, as the Full Court of the Federal Court suggested in Racing New South Wales v Betfair Pty Limited (No 2) [2009] FCAFC 158 at [6]:
Determining degrees of relative success in order to give effect to the compensatory purpose of an order for costs inevitably involves matters of impression. The issue is not readily susceptible to mathematical exactitude. For this reason, comparing the number of categories which [a party] succeeded in challenging... compared to the number on which it failed... is unlikely to expose the real degrees of success of the parties or where the interests of justice lie in respect of any order for costs.
Ms Noble made a number of unsuccessful claims that raised “separate and distinct issue[s]” (see Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 per Goldberg J at [54]). While a simple comparison of the “number” of claims she succeeded in is unlikely to expose the real degree of her success “or where the interests of justice lie” in respect of a costs order in this matter, as Crennan J pointed out in Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd(No 2) (2005) 225 ALR 569; [2005] FCA 1400, it is “an appropriate exercise of the Court’s discretion to deprive a party of its costs in respect of an issue which it lost at trial” (see Dias at [3] and cases cited therein). That is so notwithstanding that “[a]n allocation of costs in a case of mixed results when neither party is wholly successful can never be done with mathematical precision” (Dias at [7]).
A court should not too readily disallow costs to a successful party based on that party’s failure on an issue, unless it can be said to be quite separate and distinct, or if there is an element of unreasonableness or inappropriate conduct in relation to the issue on which the applicant did not succeed. In this case the applicant was unsuccessful not only in a number of aspects of her claim under ss.28B and 106 of the SDA, but also wholly unsuccessful in her claim for victimisation under s.94 of the SDA and in her claims under ss.18C and 18E of the RDA. These claims under s.94 of the SDA and under the RDA were clearly separate and distinct and cannot be said to be interrelated or in any way reliant on the same evidence as the claims under ss.28B and 106 of the SDA in relation to which she had partial success. She was entirely unsuccessful in her claim for economic loss. The fact that the applicant pursued matters in which she was ultimately unsuccessful, in particular those separate and distinct matters, added significantly to the amount of preparation needed and must be said to have added to the costs and hearing time, albeit an apportionment of costs cannot be done with mathematical precision. While not such as to be described as completely unmeritorious or manifestly hopeless, these claims clearly faced significant obstacles, as was submitted in the respondents’ pre-hearing written submissions (see Noble v Baldwin & Anor [2011] FMCA 283).
It was not unreasonable for the applicant not to accept the settlement offers at the times and in the circumstances in which they were made. She, however, made offers at the same time based on amounts significantly higher than the amount recovered. There was considerable delay and additional costs were incurred prior to the hearing as a result of the delay by the applicant in filing her evidence and inadequacies in her points of claim. The applicant was ultimately successful, albeit she succeeded only in part of her claims. She failed in significant parts of her claims, some of which can be seen as quite separate and distinct from the parts in which she succeeded. The costs of the litigation were increased significantly by reason of the need for a hearing on such issues.
The assessment of costs is not a strict mathematical exercise. In the particular circumstances of this case I consider that the proportion of costs recoverable by the applicant should be reduced. On balance, having regard to the circumstances, including the “relative success of the parties” in light of the range of issues (and see Betfair at [7]), I am satisfied that it is appropriate that the respondents pay 50 per cent of the applicant’s costs including reserved costs.
Having regard to the usual approach in such matters, the nature of these proceedings and the nature of the evidence before the court (and the applicant’s apparent assumption that recoverable costs would extend to all expenses incurred by her as well as to all amounts included in invoices from her legal representatives), it is appropriate that the costs be as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules. The applicant is now self-represented. There should be no order as to the costs of the costs applications.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 8 September 2011
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