Prior v Queensland University Of Technology and Ors (No.3) - [2016] FCCA 3399

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRIOR v QUEENSLAND UNIVERSITY OF TECHNOLOGY & ORS (No.3)

[2016] FCCA 3399

Catchwords:
HUMAN RIGHTS – Costs.

Legislation:

Federal Circuit Court of Australia Act 1999, r.17A

Federal Court of Australia Act 1976, s.31A

Federal Court Rules 2011, Part 40

Racial Discrimination Act 1975, s.18C

Cases cited:
Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975
Loveday v Sun Newspapers Ltd (1938) 59 CLR 503
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 1060
Spencer v The Commonwealth (2010) 241 CLR 118
Tadawan v State of South Australia [2001] FMCA 25

Applicant:

CYNTHIA PRIOR

First Respondent:

QUEENSLAND UNIVERSITY OF TECHNOLOGY

Second Respondent:

MARY KELLY

Third Respondent:

ANITA LEE HONG

Fourth Respondent:

ALEX WOOD

Sixth Respondent:

JACKSON POWELL

Seventh Respondent:

CALUM THWAITES

Interested Person:

SUSAN MORIARTY & ASSOCIATES

File Number:

BRG 990 of 2015

Judgment of:

Judge Jarrett

Hearing date:

9 December 2016

Date of Last Submission:

9 December 2016

Delivered at:

Brisbane

Delivered on:

9 December 2016

REPRESENTATION

Counsel for the Applicant:

Ms Anderson with Mr O’Brien

Solicitors for the Applicant:

Susan Moriarty & Associates

Counsel for the Fourth Respondent:

Mr Collins

Solicitors for the Fourth Respondent:

Bourke Legal

Counsel for the Sixth and Seventh Respondents:

Mr Morris QC directly briefed

Counsel for the Interested Person:

Mr O’Brien QC

Solicitors for the Interested Person:

Carter Newell Lawyers

ORDERS

The applicant pay the sixth and seventh respondent’s costs of and incidental to the application, including the application for summary dismissal and any reserved costs, to be taxed according to Part 40 of the Federal Court Rules 2011.
The applicant pay the fourth respondent’s costs of and incidental to the application, including the application for summary dismissal and any reserved costs, to be taxed on the standard basis according to Part 40 of the Federal Court Rules 2011 up to and including 3 March 2016 and thereafter to be taxed on the indemnity basis.
The fourth respondent’s application for costs against Susan Moriarty & Associates is dismissed.
The fourth respondent pay Susan Moriarty & Associates’ costs of and incidental to the application to be taxed according to Part 40 of the Federal Court Rules 2011.
The subpoena issued to Facebook Ireland Ltd. be discharged.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 990 of 2015

CYNTHIA PRIOR

Applicant

And

QUEENSLAND UNIVERSITY OF TECHNOLOGY

First Respondent

MARY KELLY

Second Respondent

ANITA LEE HONG

Third Respondent

ALEX WOOD

Fourth Respondent

JACKSON POWELL

Sixth Respondent

CALUM THWAITES

Seventh Respondent

REASONS FOR JUDGMENT

These are applications for costs that follow the dismissal of certain proceedings by me in a previous judgment. The sixth and seventh respondents seek their costs against the applicant on the usual basis. The fourth respondent seeks his costs against the applicant on an indemnity basis, and he seeks his costs against the applicant’s solicitor, Susan Moriarty & Associates, on an indemnity basis.
The starting point I think in respect of the applications for costs against the applicant is the general proposition that costs should follow the event. This is not a “no costs” jurisdiction. To the extent that it was suggested in previous decisions of this Court – for example, Tadawan v State of South Australia [2001] FMCA 25 – that the human rights jurisdiction is something akin to a no costs jurisdiction that proposition was doubted by Drummond J soon after Tadawan’s case in Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 1060. It is not a “no costs” jurisdiction.
The applicant says that costs ought not follow the event for three reasons. The first is that this is public interest litigation, or has attracted the public interest, and, therefore, she ought be relieved of the effect of the usual rule. The second is that, as a matter of fairness between the parties, there ought to be no order as to costs. The third, she says, arises from the conduct of the parties and, in particular, the conduct of the respondents and those that have represented them, I suspect. Each of those reasons, she argues means that an application of the usual rule is inappropriate.
I will deal with the question of public interest. In Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975, the Full Court there – Heerey, Whitlam and North J pointed out the following:
In a common law jurisdiction, decisions of the courts – in private as well as public – will often clarify the law or lay down new law for the benefit of citizens, taxpayers, traders, patentees, insurers and insured, landlords and tenants, etc etc. To that extent, much litigation has a public interest going beyond the interest of the parties. But this feature is inherent in common law litigation and provides no ground for departure from the usual rule as to costs. And, as has been pointed out in another context, what interest the public is not necessarily in the public interest. See Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 and Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.
So it is in this case, it seems to me, that what necessarily interests the public is not necessarily in the public interest. This case concerned allegations that s.18C of the Racial Discrimination Act 1975 had been contravened. I determined on a summary basis that they had not. Section 18C of the Racial Discrimination Act has excited some interest for a number of years now. And there are some notable decisions – although, not very many – about that section. As Ms Morris pointed out, my decision in this case was entirely unremarkable. It did nothing than extract the principles from the decisions in the superior courts – the Federal Court and the High Court – that apply to cases that assert a contravention of s.18C and then attempt to apply those principles to the facts before me. This case creates no precedent. This case is simply an application of the facts to the law. And whilst I accept that it has attracted some public interest, I seriously doubt that it is in the public interest.
I am not satisfied, by reason of the significant public interest that this case has generated, that the usual rule as to costs ought not be applied.
The second question is a matter of fairness between the parties. I must confess to having some difficulty in understanding that argument. I have a difficulty in understanding that argument, because the usual rule as to costs is all about fairness between the parties. The question of making a costs order ordinarily is something which is a matter of discretion, but is generally designed to act as some form of a limited indemnity to the successful party to indemnify them in respect of the costs associated with being involved in the litigation. That, in essence, it seems to me, is a question of fairness between the parties. The matters raised by the applicant against the order for costs under this head talk about the extensive media coverage that there has been in respect of the case and the judgment that I have delivered. It also highlights the involvement in that media coverage of the parties, and, in particular, the lawyers that have engaged in the case. However, I do not understand how that goes to a question of fairness between the parties, in the sense that it would mean there ought be no order as to costs.
Similarly, the question of whether lawyers are acting on a pro bono basis and what that means are not to the point. What is to the point are the particular arrangements between the parties to the proceedings and those that represent them. Statements made by various people, at various times, in various media, do not assist. And as this case is perhaps apt to exemplify, things that are said in various contexts can sometimes be taken out of context and misinterpreted. I am not satisfied that as a question of fairness between the parties there ought not be an order as to costs.
Similarly it was said that as a result of the conduct of the parties there ought not be an order for costs. Attention was drawn in particular to the conduct of the respondents in failing to attend mediation or conciliation with the Australian Human Rights Commission, when the complaint which preceded these proceedings was initially commenced.
In my view, nothing turns on that. The fact that the respondents, or some of them, did not participate in the conciliation, or only participated at very short notice, is to the outcome of these proceedings, neither here nor there. The proceedings were commenced in this Court by the applicant. It was her decision. To say that because the respondents, or some of them, did not participate in a mediation they had no interest in defending the proceedings or opposing whatever relief that the applicant sought does not follow.
That is particularly so in the case of Mr Wood who, the evidence reveals, made a number of offers to be released from the proceedings. It must have been apparent by that time that Mr Wood – if not Mr Powell and Mr Thwaites – were defending the proceedings and had taken an interest in them.
I am not satisfied that there are any special circumstances that attend this case such as to mean that the usual rule as to costs should not be applied. Costs should follow the event.
The applicant is ordered to pay the sixth and seventh respondent’s costs of, and incidental to, the application, including the summary dismissal application and any reserved costs to be taxed according to Part 40 of the Federal Court Rules 2011.
I will come back to the question of indemnity costs claimed by Mr Wood against the applicant. I will deal with his claim against the applicant’s solicitors first.
Mr Wood seeks his costs on an indemnity basis against the solicitors for the applicant. I do not intend to make that order. I do not intend to make that order for this reason. The proceedings were not hopeless. I made no finding that they were hopeless and bound to fail. The argument of Mr O’Brien of Queen’s Counsel for the solicitors is a good one. There is a difference between a finding that the proceedings were hopeless and bound to fail and a finding under the relevant rule in this court and s.17A of the Federal Circuit Court of Australia Act 1999 that an applicant has no reasonable prospects of succeeding in the application. That is the point of the judgment of the High Court in Spencer v The Commonwealth (2010) 241 CLR 118. The old rules that used to apply in summary dismissal and summary judgment cases no longer apply having regard to the terms of both s.17A of the Federal Circuit Court of Australia Act and s.31A of the Federal Court of Australia Act 1976 respectively.
In my view, it could not be said that the applicant’s case was hopeless and bound to fail. That it did not succeed for the reasons I have already given does not mean that it was bound to fail.
Moreover, I am not satisfied that the certification of the amended points of claim by the applicant’s solicitor was a certification that was wrongfully or inappropriately given. In this respect, the issue to which my attention was drawn in the course of argument concerned the necessity for the applicant to prove that the offensive acts were taken because of a particular proscribed reason. Mr Wood argues that the solicitors ought never have certified the pleading in circumstances where they must have known that the applicant could not prove the reasons for which Mr Wood made the Facebook posts that he made.
However, on the facts that were set out in the points of claim and which ultimately turned out to be uncontroversial, the circumstances in which Mr Wood came to be asked to leave the computer lab, the way in which he made his Facebook posts and the words used in it - all of those things arguably might have led to the drawing of the necessary inference that he made the post for a proscribed reason. My determination was that it was unlikely, for the reasons I have already given, but that does not mean that the argument was hopeless.
As the authorities to which Mr O’Brien has taken me make clear, when a court makes an order against solicitors representing parties in litigation, the Court needs to act very carefully. This is not a case that would attract an order against the solicitors. I dismiss that application.
The question then that remains is whether Mr Wood should have an order for costs against Ms Prior on an indemnity basis. The one matter that goes in favour of the making of an order for indemnity costs is the fact that Mr Wood, on a number of occasions, made offers to be released from the proceedings on certain terms. At one point, as I understand the material, he offered an apology.
The making of offers either through the formal processes permitted by the rules of court – where those rules permit it – or informally through Calderbank offers – is an important weapon in the armoury of those who wish to bring litigation to an end. It is one of the only means by which a respondent might control the costs of litigation to which they are generally an unwilling party.
The unreasonable refusal of an offer is something that can lead to the making of an indemnity costs order. It was said, more generally by the applicant, that this was public interest litigation. I have dealt with that already to some extent. But it is also worth pointing out that in these proceedings the applicant sought no declaratory relief. She sought no declaration, for example, that the conduct complained of contravened s.18C of the Act. That stands in contrast to many cases where an applicant seeks only declaratory relief and no relief which is, or is likely to, visit a personal benefit on the applicant.
Here the relief sought in the proceedings was relief which would visit a benefit on the applicant personally. She sought compensation, interest and an apology. Mr Wood offered the apology but not the compensation. The offer of the apology might have gone some way to vindicating – if that’s the right word – the sense of hurt that the applicant might have felt about his comment posted on Facebook, but that offer was refused.
Having regard to my determination that the proceedings had no reasonable prospects of success, I am of the view that the refusal of that offer was imprudent, and, in the circumstances, ought to attract an order for indemnity costs.
The last issue to be determined is whether a subpoena to Facebook ought to be set aside. In my view, no legitimate forensic purpose is to be served by the existence of that subpoena or answer to it. The subpoena seeks the production of information concerning a Facebook account which was said to be responsible for the posting of the words:
ITT Niggers
on the relevant QUT Facebook page.
The claim made against QUT, which is the one that presently remains extant is about how QUT responded to this incident. It is difficult to understand how the information that might be produced by Facebook, pursuant to that subpoena, is relevant or will assist the case in any way.
In my view, it does not perform any forensic purpose and it ought to be discharged. The subpoena issued to Facebook Ireland Ltd. is hereby discharged.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 23 December 2016