Seidler v Royal Melbourne Institute of Technology (No.2)

[2016] FCCA 1925

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEIDLER v ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY (No.2) [2016] FCCA 1925

Catchwords:
COSTS – No matter of principle.

Legislation: 

Australian Human Rights Commission Act 1986, s.46PO
Federal Circuit Court of Australia Act 1999, s.88Q

Seidler v Royal Melbourne Institute of Technology [2016] FCCA 1205

Applicant: KATHRYN SEIDLER

Respondent: ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY

File Number: SYG 2756 of 2015

Judgment of: Judge Cameron

Hearing date: 11 July 2016

Date of Last Submission: 11 July 2016

Delivered at: Sydney

Delivered on: 11 July 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms B. McCabe of Minter Ellison

ORDERS

1. The Applicant pay the Respondent’s costs of and incidental to the proceeding, including any reserved costs.

2. The Respondent’s costs be taxed pursuant to rule 21.11 of the Federal Circuit Court Rules 2001 (Cth).

THE COURT CERTIFIES THAT:

It was reasonable for the Respondent to employ an advocate to appear for it in this proceeding.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2756 of 2015

KATHRYN SEIDLER

Applicant

And

ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY

Respondent

REASONS FOR JUDGMENT

1. This proceeding concerned an application brought by the applicant pursuant to s.46PO of the Australian Human Rights Commission Act 1986 arising out of discrimination alleged to have occurred in association with study she had been undertaking with the respondent. On 20 May 2016 I dismissed the application pursuant to s.88Q of the Federal Circuit Court of Australia Act 1999: Seidler v Royal Melbourne Institute of Technology [2016] FCCA 1205. Consequent upon that dismissal, the respondent has sought an order that the applicant pay its costs of the proceeding.

2. The respondent’s argument was set out in its outline of submissions dated 14 June 2016 and in an outline of submissions in reply dated 6 July 2016.  The applicant filed submissions on 30 May 2016 and further submissions on 16 June 2016.  The applicant also addressed the Court at some length, the respondent relying upon its written submissions. 

3. In our legal system costs follow the event unless there is good reason why a different order should be made.  Regrettably, the applicant’s submissions both written and oral were largely directed to issues associated with the merits of the application which had been dismissed on 20 May 2016, not to whether an order for costs ought to be made consequent upon that dismissal.  The applicant’s submissions did not truly engage with the reality of the situation before the Court today, namely that her application filed on 9 October 2015 had been dismissed because it was embarrassing and because the fact and manner of its presentation were vexatious. 

4. In her submissions, the applicant raised a number of matters which need to be addressed specifically.  The first of those was her request that consideration of the costs application be postponed until the determination of an appeal from the decision of 20 May 2016, which she states has been filed.  There is no reason why the matter cannot proceed to determination today.  In particular, should an order for costs be made and the applicant pay those costs, I see no risk of the respondent not refunding any moneys paid, were a costs order to be reversed on appeal. 

5. The next matter raised by the applicant was that each party should pay their own costs.  The merits of the matter lie with the respondent in this case.  It has been entirely successful in having the application filed on 9 October 2015 dismissed.  There was no aspect of the determination of the proceeding which could be said to have been reflective of success by the applicant. 

6. The applicant’s suggested reliance on a deed entered into between her and the University of New South Wales was not, at the end of the day, pressed. 

7. The applicant raised the possibility of a cross-claim and her being awarded $10,000.  Upon inquiry, this was identified as being a loss associated with the applicant’s Austudy entitlements, a substantive claim unrelated to issues of costs and the dismissal of 20 May 2016.  The cross-claim application is not something which can be entertained today.  To the extent that it was, in substance, a costs claim characterised as a cross-claim, there is no reason to award the applicant any costs on an application which was dismissed because it was vexatious. 

8. In para.2 of her written submissions filed on 16 June 2016, the applicant sought the delivery up of certain documents.  This too was an application not appropriate to be made on a costs argument and it will not be entertained.  In any event, that application was insufficiently explained. 

9. Finally, the respondent sought certification by the Court that it was appropriate that it briefed counsel.  In light of the applicant’s conduct towards the respondent’s solicitors, which was described in the judgment of 20 May 2016, it was appropriate that the respondent be represented by counsel and that there be some separation of the respondent’s solicitors from the presentation of the respondent’s case to the Court.  Given the nature of the proceeding, I would have certified for counsel in any event. 

10. Consequently, there will be an order that the applicant pay the respondent’s costs of the proceeding and a certification for counsel.  It should be noted before I conclude these reasons that the respondent sought an order that costs be taxed and that the applicant agreed that that course was appropriate. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 27 July 2016