Perkiss v State of New South Wales (Technical and Further Education Commission) (TAFE Illawarra)
[2016] FCCA 957
•4 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PERKISS v STATE OF NEW SOUTH WALES (TECHNICAL AND FURTHER EDUCATION COMMISSION) (TAFE ILLAWARRA) | [2016] FCCA 957 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an order pursuant to rule 21.03 of the Federal Circuit Court Rules 2001 (Cth) that the maximum costs that may be recovered on a party/party basis be capped at $15,000 – factors relevant to determining whether a maximum costs order should be made – whether there is a public interest element in the bringing of the proceeding – whether the proceeding is likely to give rise to complex issues of fact or law – whether the applicant’s financial circumstances is sufficient reason for a maximum costs order to be made – whether the applicant’s contention to abandon the proceeding if the costs are not capped at $15,000 compels that such an order should be made – application dismissed. |
| Legislation: Disability Discrimination Act 1992 (Cth), ss.5, 6, 22, 32 Disability Standards for Education 2005 (Cth), cls.5.2, 7.2 Federal Magistrates Court Rules 2001 (Cth), r.21.03 Federal Circuit Court Rules 2001 (Cth), r.21.03 |
| Cases Cited: King v Jetstar Airways Pty Ltd [2012] FCA 413 Haraksin v Murrays Australia Ltd [2010] FCA 1133 Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 Woodlands & Anor v Permanent Trustee Co Ltd & Ors (1995) 58 FCR 139 |
| Applicant: | CATHERINE PERKISS |
| Respondent: | STATE OF NEW SOUTH WALES (TECHNICAL AND FURTHER EDUCATION COMMISSION) (TAFE ILLAWARRA) |
| File Number: | SYG 2251 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ben Fogarty |
| Solicitors for the Applicant: | Australian Centre for Disability Law |
| Counsel for the Respondents: | Mr Patrick Griffin SC |
| Solicitors for the Respondents: | Barry Nilsson Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2251 of 2014
| CATHERINE PERKISS |
Applicant
And
| STATE OF NEW SOUTH WALES (TECHNICAL AND FURTHER EDUCATION COMMISSION) (TAFE ILLAWARRA) |
Respondent
REASONS FOR JUDGMENT
By application filed on 12 August 2014, the applicant sought an interlocutory order pursuant to r.21.03 of the then Federal Magistrates Court Rules 2001 (Cth) that the maximum costs that may be recovered on a party/party costs basis be capped at $15,000. Rule 21.03 is now replicated in the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The matter first came before me for directions on 26 August 2014. On that occasion, orders were made that the proceedings continue by way of pleadings. A timetable for that purpose was made and the matter was listed for further directions on 17 October 2014 before me.
On 17 October 2014, leave was granted to the applicant to file an Amended Statement of Claim by 20 October 2014. Directions were also made for the filing of any Defence and any Reply. The matter was then stood over for further directions on 12 November 2014 before me.
On 12 November 2014, the applicant was given leave to file and serve a Further Amended Statement of Claim by 19 November 2014. Directions were also made for the filing of any Defence and any Reply, as well as all evidence. Additionally, directions were made for the filing of any Application in a Case together with any evidence and submissions in support, with the Application in a Case to be made returnable before me on 18 March 2015.
On 18 March 2015, the same counsel who appeared for each party at the hearing of the present application appeared. The Court noted that the pleadings were now closed. The matter was then stood over for further directions on 22 April 2015. That listing was subsequently vacated and the matter was relisted for directions on 22 May 2015.
On 22 May 2015, by consent, the matter was referred to mediation pursuant to Part 27 of the Rules. The directions made on that occasion noted that the mediation was expected to be completed by 14 August 2015. Those directions also provided for the filing of an Agreed Statement of Facts and an Agreed Statement of Issues.
On 27 August 2015, Registrar Tesoriero made an order adjourning the mediation to a date to be fixed. I note that there was no Agreed Statement of Facts or Agreed Statement of Issues filed by the parties either in accordance with the directions made by the Court or otherwise.
On 27 November 2015, the matter was returned before me on the basis that mediation had been unsuccessful. On that occasion, I made directions for the filing and serving of evidence and submissions. The matter was set down for hearing of the applicant’s application for an interlocutory order pursuant to r.21.03 of the Rules on 19 April 2016 before me.
On 26 February 2015, the applicant filed submissions in support of that application. The nature of the proceeding was summarised accurately by counsel for the applicant in those submissions, as follows:
“7. The Applicant is deaf and has been so since birth. She is 53 years old. She is unable to hear sounds at all.
8. The Applicant is able to 'lip read' spoken English in circumstances where she is in a close one-on-one conversation with another person. She is unable to lip read speech in a group environment or where she is more than approximately one metre away from the person speaking. Her primary form of communication with others and her first language is Australian Sign Language (Auslan).
9. An Auslan interpreter translates the Applicant's Auslan communication into speech for a person who does not communicate in Auslan and with whom she is communicating. Conversely, the Auslan interpreter translates the spoken English of the person with whom the Applicant is communicating into Auslan for the Applicant.
10. The Applicant is [a] Disability Support Pensioner and has received government income support or worked in supported employment for all of her adult life.
11. In Semester 2 of 2010 the Applicant enrolled with the Respondent in a Certificate 1 course called “Statement of Attainment in Skills for Work and Training” at the Respondent's TAFE Illawarra Dapto Campus. On the Applicant's request, the Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction for this course. Because of the course was taught in a small-group format, and an individualised learning plan was developed for each student, the Applicant did not require and so did not request, a note-taker to take notes for her during class. The Applicant achieved competency in the four units of study she undertook in the course for that Semester.
12. In Semester 1 of 2011 the Applicant enrolled again with the Respondent and completed more units in the “Statement of Attainment in Access to Work and Training Course.” The Applicant successfully completed the Skills for Work and Training Course by the end of Semester 1 of 2011 and was awarded a Statement of Attainment for that course.
13. In Semester 2 of 2011 the Applicant enrolled with the Respondent in the “Course in Language, Literacy and Numeracy” at the Respondent's TAFE Illawarra Dapto Campus. On the Applicant's request, the Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction and with a note-taker for class for the course.
14. The Applicant successfully completed the “Course in Language, Literacy and Numeracy” in Semester 2 of 2011, and was awarded a Statement of Attainment for that course.
15. In Semester 1 of 2012 the Applicant enrolled with the Respondent in the Certificate II course called “Skills for Work and Training” at the Respondent's TAFE Illawarra Shellharbour Campus. On the Applicant's request, the Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction and with a note-taker for class for the course.
16. The Applicant successfully completed the Certificate II course called “Skills for Work and Training” over Semesters 1 and 2 of 2012, and was awarded the Certificate for that course at the end of 2012.
17. In Semester 1 of 2013 the Applicant enrolled with the Respondent m the Certificate IV course called “Photo Imaging” at the Respondent' s TAFE Illawarra West Wollongong Campus. The Applicant took this course over Semesters 1 and 2 of 2013.
18. The Respondent provided her with an Auslan interpreter to interpret each hour of classroom instruction and with a note-taker for class for most hours of classroom instruction in the course.
19. From August 2013 the Respondent continued to provide the Applicant with an Auslan interpreter to interpret each hour of classroom instruction and commenced providing her a note-taker for class for all hours of classroom instruction in the course.
20. The Applicant successfully completed the Certificate IV course called “Photo Imaging” over Semesters 1 and 2 of 2013, and was awarded the Certificate for that course at the end of 2013.
21. In Semester 1 of 2014 the Applicant enrolled with the Respondent in a Diploma of Photo Imaging at the Respondent's TAFE Illawarra West Wollongong Campus.
22. On or about 4 February 2014, prior to Semester 1 starting on 5 February 2014, the Respondent informed the Applicant that it would provide her with an Auslan interpreter to interpret each hour of classroom instruction for the Diploma course, but would not be providing her with a note-taker for class.
23. The Applicant was stressed and upset about the Respondent not offering her a note-taker for class, but, because she had enrolled and was eager to do the Diploma course, she attended the first class of the course on 5 February 2014.
24. The Applicant observed that the course was high-level and the teaching and classroom interaction was fast-paced compared to her previous courses of study. The Applicant tried to take her own notes of the classroom instruction and discussion but could not do so without missing parts of what was being interpreted by the Auslan interpreter. She felt very stressed and anxious because of this. On 17 February 2014 the Applicant lodged a formal written complaint with the Respondent about its refusal to provide her with a note-taker for the Diploma in Photo Imaging.
25. On 6 March 2014 the Applicant lodged a complaint with the Australian Human Rights Commission (AHRC) alleging that the Respondent had discriminated against her on the basis of her disability in the provision of education to her contrary to section 32 of the [Disability Discrimination Act 1992 (Cth) (“the DDA”)], and/or in the alternative, contrary to sections 5 and 22, or in the alternative, contrary to sections 6 and 22 of the DDA.
26. By letter dated 7 March 2014, the Respondent responded to the Applicant's formal written complaint and offered the Applicant course notes for classroom instruction and a weekly two-hour individual learner support tutorial with a photography teacher and Auslan interpreter to revise learning materials and clarify content of the course.
27. The Applicant completed the Diploma of Photo Imaging in Semesters 1 and 2 of 2014 and received the Diploma at the end of the year. Notwithstanding this, she was not provided a note-taker for classroom instruction and discussion. She found the experience very humiliating and demoralising.
28. In the proceeding before this Court, the Applicant alleges that the Respondent has engaged in unlawful discrimination against her on the ground of her disability in contravention of sections 6, 22 and 32 of the DDA and Parts 3.4, 3.6, 3.7, 5.2 and 7.2 of the [Disability Standards for Education 2005 (Cth) (“the DSE”)].
29. Next to the alleged contraventions of the DSE, the Applicant only pleads indirect discrimination by the Respondent for:
a. its imposition of an unreasonable requirement or condition that she make her own contemporaneous notes of classroom instruction, questions being asked, information being provided, and comments being made by other students, and responses being provided by teaching staff in the Diploma of Photo Imaging in 2014 receive classroom instruction; and
b. its failure or refusal to provide her with a note-taker for classroom instruction and discussion, by way of a reasonable adjustment.
30. In terms of relief, the Applicant does not seek any compensation for economic or non-economic loss. She primarily seeks declaratory relief to prevent the Respondent continuing the unlawful conduct.”
I accept that the legal issues for determination by the Court are as summarised by counsel for the applicant as follows:
“(a) whether a note-taker a was [sic] “reasonable adjustment” for the Applicant in the circumstances;
(b) whether or not the Respondent's impugned conduct was “reasonable”;
and
(c) whether avoiding any unlawful discrimination that is found would have imposed unjustifiable hardship to the Respondent.”
Counsel for the applicant’s submissions also referred to the relevant matters the Court should take into account in exercising its discretion under r.21.03 of the Rules.
Rule 21.03 of the Rules is as follows:
“Determination of maximum costs
(1) The Court may specify the maximum costs that may be recovered on a party and party basis:
(a) by order at the first court date; and
(b) of its own motion or on the application of a party.
(2) However, an amount specified must not include an amount that a party is ordered to pay because the party:
(a) has failed to comply with, or has sought an extension of time for complying with, an order or with any of these Rules; or
(b) has sought leave to amend a document; or
(c) has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.
(3) The Court may vary the maximum costs specified if, in the Court's opinion, there are special reasons and it is in the interests of justice to do so.”
The relevant considerations for the Court are common ground. Again, they are set out in counsel for the applicant’s submissions, as follows:
“5. The following factors are relevant to the discretion the Applicant asks the Court to exercise in this application.
(a) the public interest nature of the proceeding, namely:
i. the opportunity to improve educational and employment opportunities for deaf and hearing impaired people; and
ii. the opportunity to clarify provisions under the DDA, namely, the interpretation and application of the DSE, the DDA being remedial and beneficial legislation;
(b) the Applicant's substantive case in the proceeding is arguable and is not frivolous or vexatious;
(c) the nature of the Applicant's case;
(d) the timing of this Application;
(e) the Application seeks an order that would not just cap the Applicant's costs exposure, but also that of the Respondent's costs exposure;
(f) the proceeding does not involve particularly complex legal or factual issues;
(g) the primary orders that the Applicant seeks are declarations and she does not seek any financial compensation;
(h) the Applicant has conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible; and
(i) the financial circumstances of the Applicant, her intention to abandon the proceedings if the Application is not successful and the undesirability of effectively compelling an applicant to abandon proceedings in a matter where an applicant has a case which appears to be arguable and the undesirability of an applicant being forced to abandon proceedings.
6. This is not an “exhaustive statement of fixed criteria” nor is there any other pre-determined set of factors applicable to the Court's broad discretion under Rule 23.01 [sic].”
It is common ground that the purpose of r.21.03 of the Rules is properly characterised as beneficial and is designed to enable the Court, in an appropriate case, to limit parties’ exposure to costs liability.
The respondent concedes the considerations in paragraphs (b), (c), (d), (e) and (g) of counsel for the applicant’s list of relevant considerations.
In the circumstances, the relevant considerations for the Court to have regard to in this matter are as follows:
(a) the public interest nature of the proceeding;
(f) the legal and factual complexity involved in the proceeding; and
(i) the financial circumstances of the applicant and her intentions if unsuccessful.
Paragraph (h) of the considerations, in relation to the manner in which the applicant has conducted the proceeding, is also a matter which the respondent concedes has been unremarkable.
Before turning to consider the three main issues in this case, the following evidence was relied on by each of the parties:
A. Applicant:
1. Affidavit of Della Goswell affirmed on 30 January 2015;
2. Affidavit of Catherine Perkiss affirmed on 30 January 2015;
3. Affidavit of Catherine Perkiss affirmed on 25 February 2015;
4. Affidavit of Phillip French affirmed on 25 February 2015;
5. Affidavit of Therese Sands affirmed on 26 February 2015;
6. Affidavit of Maria Roccon-Merritt affirmed on 27 February 2015;
7. Affidavit of Phillip French affirmed on 16 March 2015;
8. Affidavit of Phillip French affirmed on 1 April 2016;
9. Affidavit of Catherine Perkiss affirmed on 1 April 2016; and
10. Exhibit 1A - Disability Standards for Education 2005 (Cth).
B. Respondent:
1. Affidavit of Diane Miller affirmed on 3 March 2016; and
2. Affidavit of Wendy Blacker affirmed on 3 March 2016.
(a). Public interest
Counsel for the applicant submitted that the proceeding is in the public interest primarily for two reasons:
a)The opportunity to improve educational and employment opportunities for deaf and hearing impaired people; and
b)The opportunity to clarify provisions under the DDA, namely, the interpretation and application of the DSE, the DDA being remedial and beneficial legislation.
Counsel for the applicant also relied on the grant of legal aid to the applicant to retain counsel as supportive of the submission that the matter involves an element of public interest.
In support, counsel for the applicant referred the Court to King v Jetstar Airways Pty Ltd [2012] FCA 413 (“King”). The applicant in King was a 78 year old woman who relied on a wheelchair for mobility. She attempted to book a flight on Jetstar but was told that she could not take that flight. This was because there were two other passengers requiring wheelchair assistance who had already booked that flight, thereby reaching the limit for such passengers. Mrs King alleged both direct and indirect discrimination against Jetstar. The trial judge capped the costs at $20,000. The trial found unjustifiable hardship on the part of Jetstar and dismissed the proceedings. Perram J in the Federal Court of Australia capped the costs of appeal at $10,000 on the basis that there was some public interest in whether Jetstar would suffer unjustifiable hardship if it was to provide for more than two passengers with wheelchair access. Perram J described the question for him as “the balance to be struck between the rights of the disabled and the business model of airlines”.
Counsel for the applicant also referred the Court to Haraksin v Murrays Australia Ltd [2010] FCA 1133, where again a costs capping order was made (“Haraksin”). In Haraksin, the applicant alleged direct and indirect discrimination by the respondent as none of the coaches of the respondent were wheelchair accessible. An order capping the costs was made on the basis that the proceeding disclosed a matter of public interest.
Additionally, counsel for the applicant referred the Court to Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 (“Corcoran”). In Corcoran, Bennett J identified that there was an issue of public interest where the respondent’s Independent Travel Criteria required a passenger who was unable to reach for an overhead oxygen mask to travel with a carer.
In the case before this Court, unlike the facts of the cases cited above, the respondent had provided services to the applicant over three Certificate IV courses and two Diploma courses. For the 3 Certificate IV courses and the first Diploma course, the applicant was provided with an Australian Sign Language (“Auslan”) interpreter and a note-taker.
In the last Diploma course, the applicant was not provided with a note-taker. However, in answer to the applicant’s complaint about the absence of a note-taker, the TAFE Illawarra Institute wrote to the applicant on 10 March 2014 in the following terms:
“We are prioritising our efforts to enable timely and appropriate support for students with disabilities within our available resources. Our Teacher Consultants are currently consulting with students with disabilities to determine the overall resource needs across our area of responsibility.
I acknowledge that your preferred adjustment includes a class notetaker as well as an interpreter for all classes.
It is my understanding that the following arrangements have been put in place to support your participation:
·an Auslan interpreter for all classes and excursions
·provision of course notes, noting that written course notes may not be available for all content areas
·a weekly two hour, individual learner support tutorial with a photography teacher and the interpreter to revise learning materials and clarify content.”
The applicant alleges a breach of s.32 of the DDA which provides that it is unlawful for a person to contravene a disability standard. Relevantly, disability standards are provided for in the DSE.
Clause 5.2 of the DSE states that an education provider must take reasonable steps to ensure that a student is enabled to participate in the courses provided by that institution, and use the facilities and services provided by the institution, on the same basis as a student without a disability, and without experiencing discrimination. The education provider must consult with the student and decide whether an adjustment is necessary to ensure that the student is able to participate on the same basis as a student without a disability, and make a reasonable adjustment for the student accordingly.
Clause 7.2 of the DSE refers to standards for support services. It requires an education provider to take reasonable steps to ensure that a student is able to use support services provided by the education provider on the same basis as a student without a disability, and without experiencing discrimination. If a specialised support service is necessary for a student to participate, then the education provider must take reasonable steps to ensure that the student has access to that service.
Counsel for the applicant also submitted that the respondent had engaged in direct discrimination in contravention of s.6 of the DDA by failing to make a reasonable adjustment for the applicant, namely, in failing to provide her with a note-taker. Section 6(2)(b) of the DDA provides that a person has been discriminated against on the ground of a disability if, because of the disability, reasonable adjustments were necessary to be made for the person but the discriminator does not do so, or proposes not to do so. Section 6(4) of the DDA makes clear that it is for the education provider to prove that the adjustments it made for the applicant were reasonable.
Additionally, counsel for the applicant alleged that the respondent had discriminated against the applicant in breach of s.22(2) of the DDA in denying her access to a note-taker. Section 22(2) of the DDA relevantly provides that it is unlawful for an education authority to discriminate against a student on the ground of the student’s disability.
Counsel for the applicant submitted that the only relief sought by the applicant are declarations of contraventions of the DDA and DSE and an apology. Counsel for the applicant made clear that the applicant was not seeking that note-takers be available to all deaf persons. Counsel for the applicant submitted that the applicant was not told that note-taking services were no longer available at all, but that they were no longer available to the applicant.
The applicant’s affidavit affirmed on 30 January 2015 stated that she was informed on 4 February 2014, being the day before the first day of class in the second Diploma for which she was enrolled, that she could not be provided with a note-taker. Additionally, the applicant stated that there was no prior consultation with her about that decision. The applicant also stated that “the course was high-level and fast paced compared to my previous courses of study. I tried to make my own notes of instruction and discussion but could not do so without missing parts of what was being interpreted by the Auslan interpreter. This made me feel very stressed and anxious. I continued to struggle with following Auslan interpretation and taking notes over the following two weeks.”
Further, the applicant stated that on 17 February 2014, she lodged a formal complaint about the decision to refuse to provide her with a note-taker.
TAFE Illawarra Institute’s response to the applicant’s complaint is cited at paragraph [25] above.
In the applicant’s affidavit affirmed on 30 January 2015, the applicant stated the following in relation to that response:
“42. Ms Miller's letter states that I was to be given course notes for classroom instruction. However, course notes were not available for significant parts of the course and the teaching instruction did not necessarily follow the course notes even when these were provided. The course notes also obviously did not reflect classroom instructions and questions.
43. Ms Miller's letter states that I was to be given a weekly two hour individual learner support tutorial with a photography teacher and the interpreter to revise learning materials and clarify content. I did not request this as a disability-related adjustment and did not find it particularly helpful. This arrangement took me out of the classroom for one hour, and required me to stay back after class for another hour. I preferred to be instructed alongside other students with the disability related adjustments I required. I did not want to be isolated from the classroom learning experience. Additionally, in the absence of comprehensive classroom notes, I found it difficult to utilise the tutorial support as I could not recall or explain sufficiently the classroom instruction and discussion.
44. Although I completed the Diploma in Photo-Imaging at the end of 2014 and was awarded the Diploma I found the experience very humiliating and demoralising. For the whole of the time I felt stress and anxious, and I often missed, misunderstood or became confused by the instruction when I tried to take notes.”
Based on the evidence before me, I am satisfied that the applicant’s complaints are confined to her dissatisfaction with the adjustments that were made by her education provider. If those adjustments are found to have been reasonable in all the circumstances or cause the respondent unjustifiable hardship, then there has been no breach of the DDA.
In the circumstances, any public interest is very limited and not encompassed, other than in the most minor and general way, in the broad statement by the applicant that public interest was to be found in “the opportunity to improve education and employment opportunities for deaf and hearing impaired people”.
On the evidence before me, there is an allocation of funds available to TAFE Illawarra Institute by the respondent to assist deaf and hearing impaired students and it was not suggested that that allocation is not adequate. Further, it was not suggested that all deaf and hearing impaired students would require a note-taker. This is not a case where the respondent has failed to provide any adjustments to the applicant or to deaf and hearing impaired students generally. Moreover, in relation to the applicant, it was not the only adjustment made. The applicant was provided with an Auslan interpreter and individual tutoring. The applicant successfully completed her Diploma course with those adjustments.
As stated above, there is no evidence to the effect that the provision or the allocation of funds and the services provided are generally inadequate. The applicant’s complaint is individual to her own specific circumstances. In such circumstances, any public interest that may be found to exist is, in my view, extremely limited.
(f). Factual and legal complexity
Counsel for the applicant also submitted that this case is not a case of significant complexity, factually or legally. However, I do not accept that submission.
The Further Amended Statement of Claim filed on 19 November 2014 is some 14 pages long. Counsel for the applicant also identified one of the factors that the litigation was in the public interest as being because it was an opportunity to clarify provisions under the DDA, namely, the interpretation and application of the DSE, the DDA being remedial and beneficial legislation. Further, the respondent has foreshadowed a defence of unjustifiable hardship in the event that adjustments are found not to be reasonable. I accept that such a defence in this case is neither simple nor straightforward, either factually or legally.
(i). Applicant’s financial circumstances and intentions if this application is not successful
Counsel for the applicant submitted, and the respondent accepted, that the applicant’s financial circumstances are very modest. Counsel for the applicant submitted that if ordered to pay the costs of the respondent on a party/party basis following a final hearing of the proceeding, such costs are estimated to be in the order of $30,000 to $50,000.
Counsel for the applicant’s submissions state that, without the protection of a maximum costs order, the applicant intends to abandon the proceeding. Counsel for the applicant referred to Woodlands & Anor v Permanent Trustee Co Ltd & Ors (1995) 58 FCR 139 at [24]¸where Wilcox J, in citing with approval the comments of Toohey J, stated:
“24. There is little point in opening doors to the courts if litigants cannot afford to come in. The general rule in litigation that 'costs follow the event' is in point. The fear, if unsuccessful, of having to pay the costs of the other side (often a government instrumentality or wealthy private corporation), with devastating consequences to the individual or environmental group bringing the action, must inhibit the taking of cases to court. In any event, it will be a factor that looms large in any consideration to initiate litigation.”
Counsel for the applicant made the following submission in relation to discouragement to litigants-in-person in arguable claims because of the fear of adverse costs orders:
“49. His Honour noted that although Justice Toohey's comment was centred on environmental law, “it applies equally to other public interest litigation.” The substantive case before this Court is another form of public interest litigation. Federal anti-discrimination legislation is both remedial and beneficial. This Court should be concerned not to discourage litigants-in-person from bringing arguable claims because of the fear of adverse costs orders, in the event that they are unsuccessful at final hearing.”
However, Bennett J in Corcoran at [8] – [10] stated:
“8. The general principle is that costs ordinarily follow the event and that a successful litigant receives costs in the absence of special circumstances justifying some other order (Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J). This reflects the principle that the award of costs to a successful party is principally by way of perceived restorative justice (Ruddock at [12]). In Ruddock at [13], Black CJ and French J discussed the fact that novel legal issues and public interest litigation are cases where the usual rationale for the award of costs, that the successful party has been wronged at the hands of the losing party, does not necessarily apply. A losing party may, as their Honours point out, have had very good legal grounds for its position and conducted itself in the litigation in an entirely reasonable way and an order that costs follow the event may work unfairness. It may also, as their Honours observed, pose a significant barrier against parties of modest means even if the contemplated claim has substantial merit.
9. Chief Justice Black and French J said at [13] that criticisms concerning costs in public interest litigation did not justify a global modification of the usual rule that costs follow the event, but that the ability to exercise discretion is desirable…
10. The fact that the proceedings are brought otherwise than for the personal or financial gain of the applicant does not detract from the general proposition that ordinarily costs follow the event (Ruddock at [18]). The fact that litigation can be characterised as being “in the public interest” does not, of itself, mean that the usual order is not made. However, the nature and purpose of the proceedings are still relevant in the exercise of the discretion to award costs and the exercise of the discretion takes account of all of the circumstances (Ruddock at [18]–[19]; [24]). There is no error in taking into account in a decision whether to award costs matters such as the absence of personal gain on the part of the applicants, the fact that a significant number of members of the public may be affected and that the basis of the challenge is arguable and raises “significant issues” as to the interpretation and application of statutory provisions (Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72 at [20] per Gaudron and Gummow JJ, at [49] per McHugh J). The same circumstances are relevant to an order under Order 62A r 1 which, while making provision for the costs of a successful party, departs from the usual order that would otherwise be made.”
(Emphasis added).
In the circumstances, I accept the submissions of counsel for the respondent that the mere fact of financial impecuniosity is not of itself sufficient reason to exercise the discretion to impose a maximum costs order. Neither is the fact that the application seeks an order that would cap the respondent’s costs exposure as well as those of the applicant.
In her affidavit affirmed on 3 March 2016, the respondent’s solicitor, Ms Wendy Blacker, deposed that if the matter proceeded to final hearing, it would be a week-long hearing and the solicitor/client costs and disbursements of the respondent would be in the vicinity of $100,000 - $125,000.
The applicant’s solicitor, Mr French was cross-examined on his affidavit affirmed on 25 February 2015 relating to an estimate of the length of a final hearing and an estimate of the costs. When asked if he quibbled with Ms Blacker’s estimate, Mr French said that it was impossible for him to say. I note that Mr French gave evidence that he had never acted for a respondent who pleaded unjustifiable hardship. Curiously, Mr French in oral evidence appeared to concede that he had not appraised Legal Aid of the respondent’s cost estimate simply for the reason that he did not accept the respondent’s estimate of its costs.
I place little weight on Mr French’s estimate of a hearing of 1 – 2 days. I also do not accept Mr French’s assessment that an adverse costs order against the applicant if she was unsuccessful in the proceeding is likely to be in the range of $30,000 - $50,000 in respect of the respondent’s costs. In the circumstances, I accept Ms Blacker’s evidence in respect of the length of a hearing and the estimate of the respondent’s costs. I accept that such a cost consequence may be a reason for the applicant to abandon the proceeding.
Conclusion
In King, Perram J referred to a balance to be struck between the rights of the disabled and the business model of a respondent. Public institutions do not have unlimited funds. The applicant’s complaints about the adjustments made for her are individual and peculiar to her. The relief she seeks by way of declaration and apology is in relation to her claim that she as a hearing impaired person was discriminated against in contravention of the DDA by being denied the services of a note-taker in her second Diploma course, being a course that she successfully completed. As stated above, the applicant herself did not suggest that a note-taker is necessary for all deaf and hearing impaired students. It was the denial of that service to her in her particular circumstances about which she complained. That context includes other adjustments made, being the provision of an Auslan interpreter, class notes and a weekly private 2 hour tutorial. There is no evidence to which I was taken to suggest that deaf and hearing impaired people generally would feel humiliated by the adjustments made by the respondent. The applicant’s evidence about feeling humiliated by private tutoring again is peculiar to her.
I also have regard to the significant unrecoverable costs that would be incurred by the respondent in the event the respondent was successful. It is my view that the matter is unlikely to be less than at least 4 days. The applicant’s evidence is substantial in this application alone. The defences of unreasonableness and unjustifiable hardship are neither factually nor legally straightforward. There is likely to be substantial cross examination. Whilst the respondent concedes that the matter is arguable, on the present material before the Court, the prospects of success of the applicant are no more than barely arguable and I would presently assess as low.
Having regard to the overall interests of justice, and in seeking to balance all the factors relevant to the exercise of the Court’s discretion, I am of the view that this is not a matter where it is appropriate for a costs capping order to be made pursuant to r.21.03 of the Rules.
Accordingly, the applicant’s application seeking such an interlocutory order should be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 4 May 2016
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