Saje v Union for Progressive Judaism Inc

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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:

  1. 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…

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Details
Case
[2020] FCA 1638
Decision Date

CaseChat Overview and Summary

In Saje v Union for Progressive Judaism Inc, the appellant, Ms Saje, pursued a case against the respondents, Union for Progressive Judaism Inc and others, alleging breaches of the Sex Discrimination Act 1984 (Cth) and other claims. The Federal Court was called upon to determine the matter of costs in the case, which was dismissed before a final hearing due to the appellant's inability to continue the proceeding. The central issue before the court was whether it was appropriate to award costs on a lump sum basis given the circumstances of the case.

The court reasoned that it was an appropriate case for a lump sum payment, as fixing a lump sum would save time, costs, and ongoing stress for all parties involved. The court noted that the claimed $20,000 was within the appropriate range for this matter and that costs orders are not made for the purpose of punishing or penalising a party. The court emphasised that costs are compensatory, intended to indemnify the successful party against the expense incurred due to the legal proceedings. The court also highlighted that the appellant had chosen not to continue with the appeal, and therefore, she should bear the costs of the appeal.

The court concluded that a minor further discount to the claimed amount was preferable for the sake of finality. The costs payable by the appellant to the respondents were fixed at $18,000. The court's decision underscored the importance of ensuring that respondents are not unduly financially burdened by dismissed claims and can recover some of the expenses incurred in responding to such claims. The final orders mandated that the appellant pay the respondents' costs, set at $18,000.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 proceedingsCONCLUSION 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.