Ryan v Albutt (No.2)
[2005] FMCA 95
•8 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RYAN v ALBUTT (No.2) | [2005] FMCA 95 |
| HUMAN RIGHTS – PRACTICE AND PROCEDURE – Costs – sex discrimination – respondent to proceedings which were discussed seeking an order for costs of responding to unsuccessful application – no order as to costs – each party to bear own costs – consideration of costs in discrimination cases considered. |
Sex Discrimination Act 1984, ss.7, 14, 106
Tadawan v South Australia [2001] FMCA 25
Ryan v The Presbytery of Wide Bay Sunshine Coast [2001] FMCA 12
| Applicant: | CORINNE RYAN |
| Respondent: | NADINE ALBUTT TRADING AS ALBUTT EXPRESS HOLDINGS PROPRIETARY LIMITED |
| File No: | BZ73 of 2004 |
| Delivered on: | 8 February 2005 |
| Delivered at: | Brisbane |
| Hearing date: | 23 April 2002 |
| Judgment of: | Rimmer FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Harris |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Counsel for the Respondent: | Mr Hanlon |
ORDERS
That there be no order as to costs with the result that each party will bear their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ73 of 2001
| CORINNE RYAN |
Applicant
And
| NADINE ALBUTT TRADING AS ALBUTT EXPRESS HOLDINGS PROPRIETARY LIMITED |
Respondent
REASONS FOR JUDGMENT
The Application
This is an application for costs by the respondent to an original application filed in the Court on 10 May 2000 pursuant to the provisions of ss.7, 14 and 106 of the Sex Discrimination Act 1984. The application was dismissed by an Order made on 12 October 2004. The respondent to that application now seeks an order that the applicant pay her costs of responding to the unsuccessful application.
The applicant also seeks that her costs thrown away as a result of a hearing which was adjourned on the 23 October 2001 until 11 January 2002 and costs were reserved to the final hearing be determined in effect to negate any order that may be considered against the applicant for costs and that the court take into account the conduct of the respondent in bringing an unsuccessful application in respect to preliminary application objecting to the court’s jurisdiction. This was determined by the Court in the applicant’s favour and an order that the respondent pay the applicant’s costs of that application was made on
13 November 2001.
Costs in anti-discrimination cases are subject to a wide variety of approaches that have been taken by the Courts and a decision as to whether the Court should order costs remains a discretionary decision of the Court.
This matter, as my reasons disclose, was a matter which rested entirely on the credibility of the parties and as I set out in paragraph 66 of my earlier reasons delivered on 12 October 2004
“As in many cases in this area of jurisdiction it is the interpretation of the facts rather than the facts themselves that are mainly in dispute. In this matter the applicant’s claim depends upon whether I accept the applicant’s version of events or the respondent’s. There is very little evidence to corroborate either of the parties. The applicant bears the onus of proof to establish her case. It is not for the respondent to have to disprove it. The applicant must establish her case on the balance of probabilities.”
Clearly the critical issue in the case was one of credibility and it was determined that the applicant did not establish her case.
It is submitted by the respondent that the applicant has been wholly unsuccessful in her application and this has necessitated the respondent having to defend an unnecessary claim against her. It is submitted that this is compounded by the fact that throughout most of the proceedings the respondent was not represented until the hearing on a direct brief to Counsel and the applicant received the benefit of legal advice via a grant of Legal Aid and representation by Legal Aid.
Clearly in matters such as this one costs do not follow the event. In Tadawan v South Australia [2001] FMCA 25, Raphael FM said at paras. 62-63:
“The Court has accepted that these matters were normally considered to be “no costs” matters, as evidenced by the practice of the state tribunals and the fact that there was no power in HREOC to award costs. The Court has recognised that where proceedings are brought a successful party should not have the benefit of his or her victory lost in costs. The Court is also anxious not to discourage litigants from bringing claims which may well have merit because of the fear of an adverse costs order in the event that the applicant is unsuccessful. On the other hand, the Court can use its powers in relation to costs to discourage unmeritorious claims.
Although the applicant has not succeeded in the Case the Court is of the view that her claim was justifiable. It was brought against the background of poor communication, which I have attempted to discuss in some detail. I believe that this is a case where the Court should acknowledge the “no cost” nature of the jurisdiction and make no order”
Further in Ryan v The Presbytery of Wide Bay Sunshine Coast [2001] FMCA 12, Baumann FM said at para.20:
“Whilst I have power to award costs, the nature and intent of the anti-discrimination legislation could be thwarted if citizens were unreasonably inhibited from prosecuting bona fide, even ultimately unsuccessful claims.”
I accept the submissions made on behalf of the applicant that this application was certainly one where it was brought against the background of a complete breakdown in communication between the applicant and the respondent. It arose in circumstances where clearly something went badly wrong in their relationship where up until the time of her pregnancy both gave evidence that they had a very close and supportive relationship. When things went wrong the parties did not communicate and given that they (ie the applicant and the respondent) constituted the only people within the small workplace at the time the potential for misunderstanding was very high.
In this matter, I did not find that I believed the respondent and did not believe the applicant but that the applicant did not prove her case on the balance of probabilities where she had the onus to do so.
In all of those circumstances I am of the view that to make an award costs against the applicant is not appropriate. It would in this sensitive jurisdiction be likely to be a substantial deterrent to other litigants in bringing applications to be heard before the court. I have also had regard to the fact that the evidence is that the applicant has little or no capacity to pay any award of costs and further having regard to the circumstances which arose in October 2001 where the hearing on that occasion was adjourned because of matters to do only with the respondent being ready and in a position to proceed and where the applicant was ready to proceed.
Accordingly I do not propose to make any order as to costs with the result that each party will bear their own costs.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Rimmer FM
Associate: Alexandra Adsett
Date: 8 February 2005
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