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…
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- Case
- [2020] FCA 1638
- Decision Date
CaseChat Overview and Summary
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
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.