Saje v Union for Progressive Judaism Inc
[2020] FCA 1638
•11 November 2020
FEDERAL COURT OF AUSTRALIA
Saje v Union for Progressive Judaism Inc. [2020] FCA 1638
Appeal from: Saje v Union For Progressive Judaism Inc and Ors (No 4) [2020] FCCA 341
Saje v Union For Progressive Judaism Inc and Ors (No 3) [2020] FCCA 340
Saje v Union For Progressive Judaism Inc and Ors(No 2) [2020] FCCA 339
File number: WAD 45 of 2020 Judgment of: MCKERRACHER J Date of judgment: 11 November 2020 Catchwords: COSTS – proceedings dismissed before final hearing – where appellant is unable to continue the proceeding – whether it is appropriate to award costs on a lump sum basis Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH(1)(c), 46PO
Federal Court of Australia Act 1976 (Cth) ss 25(2B)(aa), 31A(2), 37M(1), 40.02, 43(3)(d)
Sexual Discrimination Act 1984 (Cth) ss 22, 94
Federal Court Rules 2011 (Cth) rr 26.01, 26.12(7), 36.03
Cases cited: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
LFDB v SM (No 4) [2017] FCA 753
Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62
Royal v El Ali (No 3) [2016] FCA 1573
Saje v Union for Progressive Judaism Inc & Ors [2019] FCCA 847
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 40 Date of last submissions: 5 October 2020 Date of hearing: 9 and 16 September 2020 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Ms FA Stanton with Ms JM McKenzie Solicitor for the Respondents: Minter Ellison ORDERS
WAD 45 of 2020 BETWEEN: LEENA SAJE
Appellant
AND: UNION FOR PROGRESSIVE JUDAISM INC
First Respondent
JOEL MENDELSON
Second Respondent
STEPHEN FREEMAN (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MCKERRACHER J
DATE OF ORDER:
11 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The appellant pay the costs of the respondents, to be fixed at $18,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
The primary purpose of these reasons is to determine the appropriate costs order that should be made in this appeal which I dismissed on 16 September 2020. At a directions hearing on that date, the appellant, who is self-represented, made it clear that she was not in a position to proceed to a hearing of this appeal, either on the listed date of 24 September 2020 or at any future time. Accordingly, the appeal was dismissed without proceeding to final hearing and the parties were directed to file submissions on costs. For the reasons set out below, the respondents are entitled to their costs incurred in the proceeding thus far. In light of the fact however, that the appeal did not proceed to final hearing, and due to the brevity of the decisions appealed from, it is necessary to set out the appellant’s claim so as to bring finality to this unfortunate case.
The appellant sought to appeal from all of the reason and orders of the primary judge of the Federal Circuit Court of Australia delivered ex tempore on 19 February 2020 for which three separate written judgments were produced:
(a)Saje v Union For Progressive Judaism Inc and Ors (No 2) [2020] FCCA 339 (Amended Defence Judgment)
(b)Saje v Union For Progressive Judaism Inc and Ors (No 3) [2020] FCCA 340 (Interlocutory Judgment)
(c)Saje v Union For Progressive Judaism Inc and Ors (No 4) [2020] FCCA 341 (Primary Judgment)
(The first judgment in this matter concerned compliance with timetabling orders and the provision of documents referred to in affidavits. It was delivered on 2 May 2019: Saje v Union for Progressive Judaism Inc & Ors [2019] FCCA 847.)
In her claim in the Federal Circuit Court, the appellant sought relief pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) and alleged contraventions of s 22 and s 94 of the Sexual Discrimination Act 1984 (Cth) (the SDA). By s 22, it is unlawful to discriminate against a person in the provision of goods, services or facilities and by s 94, it is an offence to commit an act of victimization which includes threatening or acting to the detriment of a person who makes a complaint under the AHRC Act.
The substance of the appellant’s claim relates to the alleged mishandling of a sexual harassment complaint made by the appellant to the first respondent, the Union for Progressive Judaism (the UPJ), through members of the incorporated association’s executive committee and other staff in the period October 2015 to January 2016. Those members of the UPJ are the second through sixth respondents. The complaint concerns an inappropriate sexual proposition alleged to have been made to the appellant on 4 July 2015 and a subsequent anonymous email received on 5 July 2015. The appellant was studying an introductory course in Judaism at the Temple of David in Perth at the time. She is not a member of the congregation. The person alleged to have made the proposition and sent the email was a rabbi of the temple. He is not a party to this proceeding.
Much of the appellant’s evidence filed in the Federal Circuit Court was convoluted and was ruled to be inadmissible by the primary judge. Relevantly:
(a)the appellant says she lodged complaints of unlawful sexual harassment with the UPJ on 28 and 29 October 2015;
(b)from 2 November 2015, the UPJ victimised the appellant with demands, threats and a defamation action which the appellant says she settled on advice of her solicitor. A deed of settlement was executed on or about 17 December 2015 in which the appellant agreed to execute a document entitled ‘Apology and Retraction’ and the rabbi agreed to withdraw the defamation action. The appellant also signed an undertaking at this time to not publish any further allegations related to the initial complaint. She was at the time suffering severe mental health problems and states she was contemplating suicide;
(c)until mid-March 2016, the appellant continued to pursue her complaint with various members of the UPJ to no avail;
(d)on 27 March 2017, the appellant lodged a complaint with the Australian Human Rights Commission (the AHRC). The gap between March 2016 and 2017 is not explained;
(e)on 1 December 2017, a delegate of the President of the AHRC terminated the complaint under s 46PH(1)(c) of the AHRC Act on the ground that the complaint was misconceived and/or lacking in substance; and
(f)on 21 December 2017, the appellant filed an application in the Federal Circuit Court seeking relief under s 46PO of the AHRC Act.
As best as can be discerned from the appellant’s materials, she claimed that the alleged mishandling of her complaint amounts to sexual discrimination in the provision of a ‘complaint processing’ service in contravention of s 22 of the SDA. The claim of victimisation in contravention of s 94 of the SDA appears to concern the conduct of the respondents following the making of the complaint by the appellant in October 2015.
BEFORE THE FEDERAL CIRCUIT COURT
All three judgments given by the primary judge in this matter are brief. In the Primary Judgment, his Honour made reference to deficiencies in the appellant’s pleadings (at [4]) and noted (at [5]) that ‘almost the entirety’ of the five affidavits filed by the appellant were inadmissible, however, the rulings appear to have taken place during the hearing on 19 February 2020 and do not form part of his Honour’s reasons. His Honour noted (at [10]) that:
(a)the appellant failed to establish that the respondents provided her with services;
(b)the appellant failed to establish that she was treated differentially because of her sex in respect of any services;
(c)the appellant presented no evidence of any act of victimisation under s 94 of the SDA.
The primary judge proceeded to briefly set out the background facts (at [14]-[18]), the relevant legislation and case law (at [19]-[23]), and the reasons for the above findings (at [24]-[30]).
In the Amended Defence Judgment, the primary judge granted leave for the respondents to rely on an amended defence. This was opposed by the appellant on the basis that they were mala fide and sought to withdraw admissions the respondents had made. The primary judge held that the amendments to the defence were relatively minor in that they sought to make the defence clearer. The majority of the amendments amounted to the addition of phrases such as:
[The third respondent] does not know, and therefore cannot admit, that he received a copy of the 28 October 2015 letter; …
(Emphasis indicates amendment.)
It is not clear, prima facie, what admissions were said to be withdrawn by the amendments. The primary judge’s written reasons in the Amended Defence Judgment run for five paragraphs.
GROUNDS OF APPEAL
The appellant filed a notice of appeal on 23 February 2020. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), an appellant must file a notice of appeal within 28 days of the date of judgment. The written versions of the primary judge’s ex tempore reasons in the three judgments appealed from were not provided to the parties until 29 April 2020, more than a month after the time for compliance with r 36.03 would have expired.
The appellant’s grounds of appeal, as filed on 23 February 2020, were:
1.[The primary judge] did not give the Appellant an opportunity to present her case.
2.[The primary judge] dismissed the Appellant’s case before it was heard.
3.[The primary judge] did not allow evidence to be heard.
4.[The primary judge] did not allow the Appellant to address Case Law in support of her application.
5.[The primary judge] did not address the application of relevant legislation to the case.
6.[The primary judge] allowed the respondents to amend their points of defence filed on 21 October 2019, in breach of Court Orders, Federal Circuit Rules and [Rules] for amendments, 3 months after pleadings had closed, which new pleadings were mala fide to withdraw the admissions the respondents had made.
7.[The primary judge] ordered the amendments in breach of Court Rules to be filed by 5pm on 21 February 2020, which was more than 2 days after the so-called hearing ended.
8.[The primary judge] dismissed the Appellant’s application ex tempore, mumbling barely audibly to himself, with no reference made to the relevant legislation.
9.[The primary judge] rejected the fact that all respondents made admissions, with [the fifth respondent] admitting in the points of defence that he provided a service, with [the primary judge]’s words to the Appellant ‘but he hasn’t read the document’ (a reference to [the fifth respondent]).
The facts of this case are extremely unfortunate and protracted. Throughout documents filed, the appellant makes allegations of intimidation, coercion and cover-ups against members of the UPJ who she believes to be an organisation that is trying to protect the reputation of one of its members. The appellant produced a number of medical certificates as annexures to her initial AHRC complaint that indicated severe anxiety and stress arising from the appellant’s contact with the UPJ following the complaint.
On 17 March 2020, the appellant emailed the Court requesting an expedited appeal. Her email included a medical certificate.
On 14 April 2020, the appellant emailed the Court requesting pro bono legal assistance on the basis that the solicitors for the respondents had indicated in a letter to her in March 2018 that she should be referred for pro bono assistance.
On 8 June 2020, senior and junior counsel instructed by a firm of solicitors accepted a pro bono referral to represent the appellant.
Pro bono counsel filed the following amended notice of appeal on 27 July 2020:
1.The learned primary Judge erred in failing to do everything reasonably necessary to ensure that the hearing before him was conducted in way that was procedurally fairly and in accordance with law, in that the primary Judge:
a.did not give the Appellant the opportunity to be heard in relation to the Respondents’ objections to her affidavit evidence;
b.further and alternatively, did not give the Appellant the opportunity to adduce further evidence, under oath at the hearing or by way of further affidavit, in circumstances where the primary Judge determined at the hearing that almost all of the affidavit evidence filed by the Appellant was inadmissible;
c.further and alternatively, failed to give the Appellant due assistance during the hearing by not explaining to her the procedures of the Court or the effect of his ruling as to the inadmissibility of her evidence;
d.further and alternatively, failed to give the Appellant due assistance with respect to the evidence required to prove substantive issues; and
e.further and alternatively, prevented the Appellant from adducing all of her affidavit evidence at the hearing where it was open to the primary Judge to deal with objections to her evidence through modifications to the weight and relevance applied to it.
Pro bono counsel withdrew on 21 August 2020.
SUMMARY JUDGMENT AND SECURITY FOR COSTS APPLICATIONS
On 3 August 2020, the respondents filed an interlocutory application for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Rules on the ground that the appellant had no reasonable prospect of successfully prosecuting the proceeding. In the alternative, they sought security for costs in the sum of $20,000.
On the hearing of the summary judgment application, the respondents submitted (including in relation to security for costs) that:
(a)the appellant sent letters dated 28 and 29 October 2015 and 7 November 2015 (the Letters) to various people, including the second, third and fifth respondents. By the Letters, the appellant alleged that Temple David’s rabbi had proposed to have sexual relations with her. The Letters reveal that the appellant claims to have arrived at that belief because she had allegedly received an email from an unidentified person containing a link to a particular song. The appellant also alleged that the rabbi had caused her to be expelled from her course of study with Temple David by alleging that she had sexually harassed him;
(b)before the primary judge, the respondents filed and served objections to particular paragraphs and annexures of the appellant’s affidavits to be relied upon at trial. The primary judge ruled on those objections at the commencement of the hearing on 19 February 2020, and found much of the content of the affidavits to be inadmissible;
(c)none of the content the subject of his Honour’s rulings in respect of the respondents’ objections was probative of the appellant’s claims of breaches of s 22 and/or s 94 of the SDA. The excluded content consisted of conclusions, hearsay, vague and irrelevant material, and submissions;
(d)none of the surviving evidence was probative of the alleged breaches of s 22 of the SDA. There was no evidence that the UPJ offered or provided any services directly to individual Jewish congregants, students of Judaism or persons at large who, like the appellant, were not members of the UPJ. There was no evidence that any of the respondents provided or offered to provide any services to the appellant. The respondents’ dealings with the appellant went no further than the receipt of unsolicited email, mail and/or telephone contact from the appellant. There was no evidence that any of the respondents treated the appellant less favourably than any relevant male comparator in respect of her dealings with them as would be required in order to prove discrimination: Purvis v New South Wales (2003) 217 CLR 92. The only identified comparator was the rabbi, and he was not a valid comparator as there was no evidence that he had sought any service from any of the respondents in relation to the appellant. Finally, there was no evidence that the appellant’s gender was relevant to any of the conduct of any of the respondents towards the appellant;
(e)none of the surviving evidence was probative of the alleged breaches of s 94 of the SDA. It did not reveal victimisation on the part of any of the respondents in respect of the appellant for the purposes of that provision in that there was no evidence of any of the respondents subjecting the appellant to any detriment or threatening her with any detriment in the course of their dealings with her, whether on account of her complaints about the rabbi, or at all;
(f)there was no barrier in the proceedings at first instance to the appellant filing evidence in support of her claims. No evidence probative of those claims emerged from the multiple affidavits that the appellant filed in those proceedings; and
(g)the appeal has no reasonable prospects of success because, even if there was a denial of procedural fairness, a new trial would be futile.
I did not call on the appellant at the hearing on 9 September 2020 of the application for summary judgment and the application for security for costs. As I explained, although the respondents’ application was entirely proper and supported by persuasive authority that the Court’s discretion to either dismiss the appeal or award security for costs should be exercised in their favour, I refused the application. I did so on the basis that the amended grounds of appeal drafted by pro bono counsel gave rise to a question of whether the appellant had received a fair and meaningful hearing. I considered that to be too important a question to dismiss summarily, and that the appellant should be given the opportunity to advance her arguments, even though she would be proceeding without legal representation.
The appellant confirmed at that hearing on 9 September 2020 that she was still available, and intended to appear to argue her case on 24 September 2020.
Late in the evening on 9 September 2020, my associate received an email from the appellant saying:
Dear Associate,
I am writing to let you know that there is no way I can present any case before the Court on 24 September, or any other time.
I do not have the physical or mental strength to go through such a day, and I cannot concentrate on anything for such a long time.
February was a different matter.
There is no point in pretending for anyone that I could do it.
It’s late in the day, so to speak, and the charade must be called off.
Kind regards,
…
Treating this as conveying an intention not to proceed with her appeal, the matter was listed for directions to enquire of the appellant as to whether that was her intention. She was informed in that communication that there would still be a residual question as to costs.
The matter was listed for hearing (by telephone in the hope of saving some cost) on 16 September 2020. After some confusing oral submissions, including some misunderstandings as to the matters that I had stated at the previous directions hearing, the appellant made it clear that she did not intend to continue with the appeal, even though she would like to. She said she should not be penalised because it was not her fault that she did not get a fair hearing in the Federal Circuit Court. I made it clear that that was not a question that had been determined and that if she wished to discontinue, the appeal would be dismissed and I would decide the question of costs on the papers, after giving the respondents an opportunity to respond to her written submissions concerning costs, which she had already filed in response to the respondents’ summary judgment application.
Orders were made to that effect.
COSTS
The appellant has filed two sets of primary submissions on costs and a reply to the respondents’ submissions. She contends that no order should be made as to costs and says that she should not be penalised for the failure of a court to grant her a fair hearing. She also submits that:
(a)the primary judge did not take into consideration that she made many attempts to solve any issues outside of the court and offered to participate in mediation;
(b)at various interlocutory stages in the first instance proceeding the respondents incurred costs unnecessarily by accusing the appellant of non-compliance with orders, requesting directions hearings and obtaining copies of transcripts; and
(c)the claim that the appellant sought to resolve the matter out of court is repeated.
These submissions are directed to costs in the first instance proceeding on which orders have already been made by the primary judge. They are not directed to the costs of this appeal.
The appellant’s further submissions are directed towards a purported offer of settlement which she made to the respondents following the directions hearing on 9 September 2020. The offer took the form of an email which the appellant annexed to her submissions:
…
I propose to all it quits and be gone.
I want for nothing other some peace before my Final Call, and I have nothing to give
Regards,
…
All that needs to be said at this juncture is that the purported offer did not address the issue of costs, which is clearly a significant consideration for parties considering settlement. There is no reason to suggest the respondents acted unreasonably in any way regarding this communication.
In her reply submissions, the appellant submits that:
The respondents continue to use oppressive tactics to ignore the fact that any objective and reasonable person in general, and any legally qualified person in particular, would find the proceeding before [the primary judge] unfair. It is equally unfair for the respondents to try to use it against the Appellant, especially since the respondent have always been at liberty to address issues outside a court. For these reasons the Appellant requests for the determination of no order as to the costs so that each party pay its own.
The submissions go on to make a number of claims about what was said and not said by myself and the respondents at the hearing on 16 September 2020 when the proceedings were dismissed. They do not accord with what was actually said and any party is able to obtain a copy of the transcript of the hearing.
It is important to reiterate, though it has already been made clear to the appellant, that no ruling has been made one way or the other on the merits of her appeal grounds. As the party bringing the claim, the appellant bears the onus of establishing error in the reasoning of the primary judge or the conduct of the hearing before his Honour. The respondents are not under any obligation to resolve this matter out of court. Although I did refuse the respondents’ summary judgment application, that is a far cry from any determination that an error has been demonstrated.
The respondents made the following submissions on costs:
(a)on 16 September 2020 these proceedings were dismissed;
(b)the dismissal occurred in circumstances in which the appellant indicated to the Court that she did not wish to proceed with her appeal;
(c)the respondents seek an order that the appellant pay the respondents’ costs. There is no reason why costs should not follow the event in accordance with the general rule;
(d)further, a dismissal in such circumstances may be compared to a discontinuance, in respect of which the discontinuing party is rendered liable to pay the costs of each other party to the proceeding by operation of Rule 26.12(7) of the Rules;
(e)the Court may award a party costs in a specified sum: s 43(3)(d) of the Act;
(f)further, r 40.02 of the Rules provides that a party may apply for costs to be awarded in a lump sum instead of taxed costs;
(g)the principles applicable to the question as to when it is appropriate to award costs in a lump sum were considered by Davies J in Royal v El Ali (No 3) [2016] FCA 1573 (at [10]) and may be summarised as follows:
(i)it is preferable to make a lump sum costs order wherever it is practicable and appropriate to do so in order to avoid the expense, time and delay involved in a taxation of costs. This consideration is all the more important where the financial capacity of the party liable to pay costs gives rise to a risk of the successful party incurring irrecoverable costs;
(ii)the power to award costs in a lump sum may appropriately be exercised in order to facilitate the objectives of the civil practice and procedure provisions of the Act, as set out in s 37M(1) of the Act, being the just resolution of disputes as quickly, inexpensively and efficiently as possible;
(iii)there is no particular characteristic of a case which must exist before a lump sum order for costs may be made. The power may be exercised whenever warranted by the particular circumstances of the case; and
(iv)the Court should be confident that the estimate of costs provided in support of an application for an award of a lump sum is logical, fair and reasonable. The Court should be:
astute to avoid both over-estimating the recoverable costs and underestimating the appropriate amount, for example by applying an arbitrary discount to the amounts claimed.
(h)the Court has also found that in making a lump sum costs order, the Court is not required to engage in a detailed examination of the kind that would be appropriate in a formal taxation or costs assessment: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 (at [23]) and LFDB v SM (No 4) [2017] FCA 753 (at [5]);
(i)the circumstances of this appeal favour the award of a lump sum, rather than a taxation of costs; the proceedings have not been lengthy or complex, such that the Court can be confident that costs can be assessed by the Court in a sum that is logical, fair and reasonable, and the appellant is a person of limited means, such that it is desirable for both parties to avoid incurring costs in preparing for and attending at taxation; and
(j)the affidavit of Ms McKenzie affirmed 29 September 2020 filed with the respondents’ submissions supports an order that the appellant pay the respondents’ costs fixed in the sum of $20,000.00.
Ms McKenzie’s affidavit in support (as solicitor for the respondents) lists the total of professional fees and disbursements with appropriate explanations at $27,851.55.
The appellant has continued to raise arguments which might be relevant to the appeal (if they were valid) if the appeal were still on foot. It is not. The appellant also complained about the lack of verification in the costs claim and the fact that there had been a change of barrister for the respondents.
CONSIDERATION
A legal practitioner has deposed on oath (twice now) to the amount of costs incurred and the fact that the rates charged were below that at which fees could properly have been charged. There is no doubt that the costs and disbursements were properly and actually incurred. There is no doubt that the appellant should pay the respondents’ costs of the appeal, which she has chosen not to continue. It is an appropriate case for a lump sum payment, as fixing a lump sum saves time, costs and ongoing stress for all concerned, including some of the respondents who have been exposed to this litigation for an extended time.
The claimed $20,000 is patently within the appropriate range for this matter.
Costs orders are not made for the purpose of punishing or penalising a party. In cases such as the present, they are necessary to ensure that the respondent is not unduly financially burdened by proceedings brought against them and is able to recover some of the expense that they have been put to in responding to claims that ultimately have been dismissed. As Mason J observed in Latoudis v Casey (1990) 170 CLR 534 (at 543):
If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings
CONCLUSION
In the interests of finality, I consider a minor further discount to be preferable. The costs payable by the appellant to the respondents will be fixed at $18,000.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher. Associate:
Dated: 11 November 2020
SCHEDULE OF PARTIES
WAD 45 of 2020 Respondents
Fourth Respondent:
JOCELYN ROBUCK
Fifth Respondent:
STEVE DENENBERG
Sixth Respondent:
ROGER MENDELSON
Saje v Union for Progressive Judaism Inc [2020] FCA 1638
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