SAN v Dirluck Pty Ltd and Anor (No.2)
[2005] FMCA 846
•14 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAN v DIRLUCK PTY LTD & ANOR (No.2) | [2005] FMCA 846 |
| HUMAN RIGHTS – COSTS – Whether an offer in a letter which indicates that “the complaint be withdrawn with no order as to costs” is an offer inclusive of costs and the consequences thereof. |
Sex Discrimination Act 1984, s.
28B(2)
Racial Discrimination Act 1975, s.18C(1)
Federal Magistrates Court Rules 2001
Kelly v TPG Internet Pty Limited (No 2) [2005] FMCA 291
Peter Black v Tomislav Lipovac [1998] 699 FCA
Smallacombe v Lockyer Investment Co Pty Limited (1993) 42 FCA 97
Dr Martins (Australia) Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Maevida Horman v Distribution Group Limited [2001] FMCA 74
Australian Automotive Repairers Association (Political Action Committee) Inc v NRMA Insurance [2004] FCA 369
| Applicant: | VIOLET SAN |
| First Respondent: | DIRLUCK PTY LTD T/AS JOE'S MEAT MARKET |
Second Respondent: | DEREK LAMB |
| File Number: | SYG 2881 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 14 June 2005 |
| Date of Last Submission: | 14 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Tibby |
| Solicitors for the Applicant: | Kingsford Legal Centre |
| Counsel for the Respondent: | Ms K Nomchong |
| Solicitors for the Respondent: | Moray & Agnew |
ORDERS
The respondents pay the applicant's costs of the proceedings to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.
In respect of the notice of motion and the hearing today there be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2881 of 2004
| VIOLET SAN |
Applicant
And
| DIRLUCK PTY LTD T/AS JOE'S MEAT MARKET |
First Respondent
| DEREK LAMB |
Second Respondent
REASONS FOR JUDGMENT
On 9 June 2005 I gave judgment in these proceedings. I found that the respondents, in the case of the first respondent because of its vicarious liability for the second respondent, had breached the provisions of s.28B(2) of the Sex Discrimination Act 1984 and s.18C(1) of the Racial Discrimination Act 1975. I awarded the applicant damages in the sum of $2,000 and I indicated that I would hear the parties as to costs, although I also, by reference to a case known as Kelly v TPG Internet Pty Limited (No 2) [2005] FMCA 291, made it clear that I would not listen sympathetically to some argument for filleting the cost of the proceedings between that part of the proceedings in which the applicant had been successful and that part in which she had not.
The reason that I reserved the question of costs was because I suspected that offers may have been made in an attempt to resolve these proceedings and that if an offer had been made, which was higher than the amount that I had awarded, the respondents may well wish to put an argument to me that the costs, at least of part of the proceedings, should be theirs.
This is what occurred. Ms Nomchong, who appears for the respondents, has provided me with several pages of helpful written submissions and Mr James Agnew has put on an affidavit in which certain letters revealing offers are exhibited.
The first offer of relevance is one contained in a letter dated 4 May 2005. It is an offer by the first respondent to pay the applicant the sum of $1,000 by way of damages. The offer is in three paragraphs, the third of which is that "The complaint to be withdrawn with no order as to costs".
The letter also makes a reference to an offer made by the second respondent in the sum of $2,000 but there is no indication in that reference as to whether or not the offer was inclusive or exclusive of costs.
The offer of 4 May was rejected by way of a letter dated 5 May. On 9 May two more letters were written, but it is fair to say that it would appear that on 6 May 2005 some offer was put by the applicant to the respondent. This is evidenced by the first and second paragraphs of the first letter of 9 May which refers to a telephone conversation on the evening of Friday 6 May 2005 and indicates that the first and second respondents reject the applicant's offer of settlement. The first letter then goes on to put two proposals, both of which include a requirement that the complaint be withdrawn with no order as to costs. Those offers were rejected.
A further offer was made by letter on 9 May 2005, which was the first day of the hearing of the proceedings. It confirms an offer that was obviously orally put at court and it is in the following form.
“1.The first respondent and second respondent to pay the applicant the total combined sum of $5000 by way of damages.
2. ...
3. The complaint to be withdrawn with no order as to costs.”
That offer was also rejected.
The amount which I awarded the applicant by way of damages was $2,000. This is obviously less than the $5,000 offered in the second letter of 9 May but it is quite clearly not less than the amount of $2,000 plus the applicant's reasonable costs calculated under schedule 1 of the Federal Magistrates Court Rules.
Ms Nomchong argues that the offer made constitutes a Calderbank offer in its purest form because it is only an offer in relation to damages. She argues that the applicant had a responsibility when she received this offer to communicate with the respondent and inform the respondent that, for example, whilst the amount suggested was acceptable there was no reference to costs and that she wished the offer, if it was to be accepted, to include a sum for costs. Ms Nomchong argues that by failing to do that the applicant put herself in a position whereby the court should, in its discretion, order costs against her at least insofar as the costs of the trial from the time that the offer was made.
Ms Nomchong in her submissions refers to a number of authorities including Peter Black v Tomislav Lipovac [1998] 699 FCA and Smallacombe v Lockyer Investment Co Pty Limited (1993) 42 FCA 97, as well as a number of other cases in which the Federal Court, and the Supreme Court, considered Calderbank style letters.
One case she did not refer to was a decision of Goldberg J in Dr Martins (Australia) Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602. A case I considered in Maevida Horman v Distribution Group Limited [2001] FMCA 74 where at [7] I said:
“Although Mr Hodgkinson argued to the contrary, it seems to me that the ratio of the decision [in Dr Martins] was that it did not apply to Calderbank offers which are made inclusive of costs as that puts the offeree in a position of not being able to determine the amount appropriate to attribute to the money sum it is seeking. At paragraph 23 of the judgment His Honour made it clear that he inclined to the view expressed by Spender J in Smallacombe and followed by Moore J in Hanave Pty Limited v LFOT Pty Limited (unreported, 11 November 1998).”
At paragraph 32 of the judgment Goldberg J says:
“In conclusion, for the reasons to which I have referred, I do not consider it appropriate in determining whether an order for indemnity costs should be made to take into account a Calderbank offer which makes an all in offer inclusive of money and the claimant costs.”
Notwithstanding Ms Nomchong's strenuous arguments to the contrary, I am afraid that I am unable to see her instructing solicitor’s letters as anything else but offers of a particular sum of money to include costs. It is quite obvious to me that the applicant would have to pay some money by way of costs even though Ms Nomchong argues that her side were under the impression that the applicant was being assisted on a pro bono basis. I would note that even if that were the case the court would be entitled, under its rules, to give a pro bono represented party an order which would entitle that party to obtain costs. See part 12 Rule 12.07 of the Federal Magistrates Court Rules.
With respect to Ms Nomchong I think that the reference in each of the letters upon which she relies to the fact that the complaint is to be withdrawn with no order as to costs, is an indication that the costs matter is not up for negotiation but is included in the award. In the circumstances, I am satisfied that none of the offers made by the respondent, fair as they might have been in respect of the general damages, constituted an offer in excess of the value of the judgment to the applicant. For that reason, I do not propose to alter the view I had expressed in the original judgment, namely that the applicant should obtain her costs from the respondent.
There are two additional matters. The first is the costs of a notice of motion taken out by the applicant to reopen the case. The circumstances of this notice of motion appear to be that allegations were made that a party to the proceedings had "coached" witnesses. This is a very serious matter. As Ms Nomchong says in her submissions, it should have been reported to the court immediately. It is regrettable that it was not.
In any event the application was made and when it was first brought on for hearing I made reference to a recent decision of Lindgren J who had dealt with a similar problem in Australian Automotive Repairers Association (Political Action Committee) Inc v NRMA Insurance [2004] FCA 369. Following consideration of that authority the applicant, through her legal advisers, withdrew the notice of motion.
Although Ms Tibby argues that she should not be penalised in costs I am afraid that it is not an argument that I would accept. A notice of motion was taken out, the respondents were required to respond to it, there was a short hearing in court and then the matter was withdrawn.
The third issue is the costs of today. In that regard Ms Nomchong has not succeeded in her application. I appreciate that there was some reference in her written submissions to the costs of the notice of motion, and to the extent any work was done in relation to that I regret it because it has never occurred to me that the costs of that notice of motion would be anything but the respondents.
Having given all these matters the most serious consideration, I am of the view that the appropriate orders to make are as follows:
(i)In relation to the proceedings, the respondents pay the applicant's costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules, noting that to the extent necessary a certificate for counsel is given. In respect of the notice of motion and the proceedings today there be no order as to costs on the basis that to my mind the costs would probably cancel each other out.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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