Pathmanathan v Healthscope Operations Pty Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Pathmanathan v Healthscope Operations Pty Ltd (No 2) [2020] FCA 503

File number:

VID 133 of 2018

Judge:

STEWARD J

Date of judgment:

23 April 2020

Legislation:

Australian Human Rights Commission Act 1986 (Cth.) ss. 46PO, 46PSA

Cases cited:

Fetherston v. Peninsula Health (2004) 137 F.C.R. 262

Flanagan v. Murdoch Community Services Inc [2010] FCA 647

Pathmanathan v. Australian Health Practitioner Regulation Agency [2019] FCA 1830

Pathmanathan v. Healthscope Operations Pty Ltd [2020] FCA 65

Refaat v. Barry (No 2) [2015] VSCA 268

Walker v. State of Victoria (No 2) [2011] FCA 417

Date of hearing:

Determined on the papers

Date of last submissions:

6 April 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

9

Counsel for the Applicant:

The applicant filed written submissions on her own behalf

Counsel for the Respondent:

Mr. M. Williams

Solicitor for the Respondent:

MinterEllison

ORDERS

VID 133 of 2018

BETWEEN:

AJINTHA PATHMANATHAN

Applicant

AND:

HEALTHSCOPE OPERATIONS PTY LTD

Respondent

JUDGE:	STEWARD J
DATE OF ORDER:	23 APRIL 2020

THE COURT ORDERS THAT:

1.The applicant pay the respondent’s costs of this proceeding, including the costs of the applicant’s interlocutory application filed on 7 October 2018 and the respondent’s interlocutory application filed on 23 August 2019, as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1. On 6 February 2020, I delivered reasons for judgment in this proceeding which was commenced pursuant to s. 46PO of the Australian Human Rights Commission Act 1986 (Cth.): Pathmanathan v. Healthscope Operations Pty Ltd [2020] FCA 65. I held that the applicant had no reasonable prospect of successfully prosecuting her proceeding against the respondent. In the result, I refused the applicant’s application for summary judgment and granted the respondent’s application for summary dismissal. I ordered the parties to confer on the issue of costs and to file agreed orders or, in the absence of agreement, submissions limited to two pages in length. In what follows, I have used the same terminology from my earlier reasons for judgment.

2. The parties were unable to agree on what costs order the Court should make.  This was so despite the Court affording the parties an extended timetable.  In that respect, upon the Doctor’s request and given the prevailing extraordinary circumstances arising from the continuing COVID-19 pandemic, the Court extended the deadline for filing twice.  In written submissions filed on 27 March 2020, Healthscope sought an ordinary order of costs against the Doctor on the basis that it had been “wholly successful”.  In written submissions filed on 6 April 2020, the Doctor demurred.  For the reasons that follow, I will order that the Doctor pay Healthscope’s costs of this proceeding.

   Healthscope’s submissions

3. Healthscope submitted as follows:

   This Court has a broad discretion to award costs, provided that no other relevant Act prohibits the award of costs.

   Nothing in the Australian…