Perananthasivam v Telstra Corporation Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PERANANTHASIVAM v TELSTRA CORPORATION LTD (No 3)

[2007] FMCA 1378

COSTS – Applicant taken to be responsible for costs incurred in summary dismissal sought by the respondent, notwithstanding partial success.

Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Perananthasivam v Telstra Corporation [2007] FMCA 1261
Perananthasivam v Telstra Corporation(No 2) [2007] FMCA 1274

Applicant:

SIVANADIAN PERANANTHASIVAM

Respondent:

TELSTRA CORPORATION LTD

File Number:

SYG1602 of 2007

Judgment of:

Driver FM

Hearing date:

10 August 2007

Delivered at:

Sydney

Delivered on:

10 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr B Shields

Solicitors for the Respondent:

Deacons

INTERLOCUTORY ORDERS

The applicant pay the respondent's costs and disbursements of the summary dismissal application, fixed in the amount of $10,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1602 of 2007

SIVANADIAN PERANANTHASIVAM

Applicant

And

TELSTRA CORPORATION LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This matter comes before me today in consequence of my decision in Perananthasivam v Telstra CorporationLtd (No 2) [2007] FMCA 1274. In para.38 of that judgment, in which I dealt with a response seeking summary dismissal of an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth),

I said that I had decided that the applicant in the substantive proceedings should pay the costs of the interlocutory hearing on the response. The parties asked me to defer making a decision on the quantification of the costs until today, which I acceded to.
The applicant sought an adjournment of today's hearing so that he could seek legal advice. He also sought to dispute, again, the proposition that he should bear the costs of the hearing on the response. I declined the adjournment on the basis that I had deferred the decision of quantification until today to allow the parties to consider their respective positions and that sufficient time had been allowed.
Telstra's actual costs incurred on the hearing of the response are approximately $21,000. That is a solicitor and own client estimate. On a party and party basis I would accept that costs of not less than $10,000 have been reasonably and properly incurred on behalf of Telstra in dealing with the hearing of their response.
In Perananthasivam v Telstra Corporation Ltd [2007] FMCA 1261 in which I dealt with an application in a case made by Mr Perananthasivam I awarded costs of $5,000 to Telstra. That matter was heard concurrently with the hearing of the issues raised in the response. That hearing took twice as long as the hearing on the response and involved at least twice as much material. It was, in substance, twice as complex.
If the Court scale were to be applied, costs would be substantially less. Hearing of the issues on the response was an interim or summary hearing as a discrete event pursuant to stage two of the costs regime in schedule 1 to the Federal Magistrates Court Rules 2001 (Cth). Telstra would, on application of the scale, be entitled to a lump sum of $1,250 plus a daily hearing fee for a full day's hearing of $1,500. In addition, I would have given a certificate for the attendance of counsel and allowed 150 per cent of the daily hearing fee for counsel, providing a further $2,250. Approximately $170 had been incurred in disbursements with the result that the application of the scale would produce a costs outcome of approximately $5,170.
Given that the party/party costs of Telstra are approximately double that amount and that those costs have been reasonably and properly incurred, I do not think that the scale produces a just result in this instance. Mr Perananthasivam would of course prefer to pay a lesser amount but I do not depart from the views that I expressed in my judgment on the issues concerning summary dismissal raised by the response and the consequences in relation to costs.
I will order that the applicant pay the respondent's costs and disbursements of the summary dismissal hearing arising from the respondent's response dealt with on 1 and 2 August 2007 the subject of the decision in Perananthasivam v Telstra Corporation(No 2) [2007] FMCA 1274 fixed in the amount of $10,000.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 14 August 2007

CaseChat Overview and Summary

Sivanadian Perananthasivam, the applicant, sought legal recourse against Telstra Corporation Ltd, the respondent, in the Federal Magistrates Court of Australia. The dispute arose from the applicant's attempts to pursue a claim under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The court was tasked with determining the appropriate allocation of costs in relation to the respondent's application for summary dismissal of the applicant's claims. The matter was heard before Driver FM and involved an examination of the Federal Magistrates Court Rules 2001 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

The central legal issue before the court was whether the applicant, who had partially succeeded in his claims, should be held responsible for the costs incurred by the respondent in the summary dismissal application. This question required the court to balance the principle of costs following the event against the applicant's partial success. The court had to determine an equitable amount for costs that would reflect the respondent's reasonable and necessary expenditures while also considering the applicant's position.

Driver FM determined that the applicant should bear the costs incurred by the respondent during the summary dismissal hearing. The court accepted that the respondent had reasonably and properly incurred costs of at least $10,000. Despite the application of the cost scales outlined in the Federal Magistrates Court Rules 2001 (Cth), which suggested a lower amount, the court found that a party-and-party basis was more appropriate in this case. The court certified that the applicant should pay $10,000 to cover the respondent's costs and disbursements. This decision adhered to the principles established in previous judgments and aimed to ensure a fair outcome considering all the circumstances.

The final order of the court was that the applicant, Sivanadian Perananthasivam, should pay the respondent, Telstra Corporation Ltd, the sum of $10,000 to cover the costs and disbursements arising from the summary dismissal hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established