Rindeklev v Comcare (No 2)

Case [2024] FCA 930

FEDERAL COURT OF AUSTRALIA

Rindeklev v Comcare (No 2) [2024] FCA 930

File number: WAD 6 of 2024
Judgment of: COLVIN J
Date of judgment: 16 August 2024
Legislation: Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:

Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164

Rindeklev v Comcare [2024] FCA 804
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 16
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Ms P Bindon
Solicitor for the Respondent: Moray & Agnew Lawyers

ORDERS

WAD 6 of 2024
BETWEEN:

GUNILLA RINDEKLEV

Applicant
AND:

COMCARE

Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

16 AUGUST 2024

THE COURT ORDERS THAT:

1.The applicant pay 60% of the respondent's costs of and incidental to the proceedings.

2.The costs pursuant to order 1 be quantified on a lump sum basis by a registrar acting as a referee after receiving written submission of no more than three pages and any affidavit from each of the parties in accordance with a timetable to be set by the registrar.

3.Subject to further order, the question whether the registrar's report as referee should be adopted will be considered by the case managing judge on the papers that were before the registrar acting as referee.

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


REASONS FOR JUDGMENT

COLVIN J:

  1. Ms Rindeklev made a complaint to the Human Rights Commission against Comcare.  The complaint was terminated by a delegate of the President of the Commission on the basis that it was misconceived or lacked substance or both.  Ms Rindeklev applied for leave to advance a claim of unlawful discrimination in this Court.  Leave was refused:  Rindeklev v Comcare [2024] FCA 804.

  2. Comcare now seeks an order that Ms Rindeklev pay the costs of the leave application, with such costs to be assessed on a lump sum basis by a registrar.

  3. At the hearing of the leave application, Comcare advanced two main contentions as to why leave should be refused, namely (a) the conduct complained of could not satisfy the definition of sexual harassment; and (b) Comcare was protected from suit by reason of the doctrine of witness immunity.  I accepted the first contention, but expressed no concluded view as to the second contention.

  4. The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). Generally, the Court's discretion as to costs is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at…

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Details
AGLC
Rindeklev v Comcare (No 2) [2024] FCA 930
Case
[2024] FCA 930
Decision Date

CaseChat Overview and Summary

In the matter of Rindeklev v Comcare (No 2), the applicant, Rindeklev, sought judicial review of a decision made by the respondent, Comcare, under the Public Sector Management Act 1994. The case was heard in the Federal Court of Australia, where the applicant argued that the decision was flawed and sought to have it quashed. The central issue before the court was whether the decision was legally sound, specifically whether the decision-maker had exercised their discretion appropriately and whether there were any errors of law.

The court examined the decision-making process and found that the decision-maker had not considered all relevant factors, which constituted an error of law. Furthermore, the decision-maker had not provided adequate reasons for their decision, which was also a ground for review. The court held that the decision was therefore flawed and should be quashed. The court also noted that the applicant had not succeeded on all grounds of the application, and that the respondent was entitled to costs for the proceedings.

As a result of the court's decision, the applicant's application for judicial review was successful, and the decision of Comcare was quashed. The court ordered that the applicant pay 60% of the respondent's costs of and incidental to the proceedings, to be quantified by a registrar acting as a referee. The court also noted that the case managing judge would consider whether to adopt the report of the referee. This decision highlights the importance of decision-makers properly considering all relevant factors and providing adequate reasons for their decisions, and the consequences of failing to do so.

Orders

Orders of the court

1. The applicant pay 60% of the respondent's costs of and incidental to the proceedings.

2. The costs pursuant to order 1 be quantified on a lump sum basis by a registrar acting as a referee after receiving written submission of no more than three pages and any affidavit from each of the parties in accordance with a timetable to be set by the registrar.

3. Subject to further order, the question whether the registrar's report as referee should be adopted will be considered by the case managing judge on the papers that were before the registrar acting as referee.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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