Steed v Recruitco
[2011] FMCA 286
•27 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STEED v RECRUITCO | [2011] FMCA 286 |
| HUMAN RIGHTS – Application for costs by respondent- relevant principles. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Age Discrimination Act 2001, s.51 Federal Magistrates Court Rules 2001, r.21 Federal Court Rules |
| Applicant: | JEFFREY STEED |
| Respondent: | RECRUITCO |
| File Number: | ADG 327 of 2010 |
| Judgment of: | Lindsay FM |
| Hearing date: | 18 April 2011 |
| Date of Last Submission: | 18 April 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 27 April 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Manuel |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
That the applicant do pay the respondent’s costs of and incidental to these proceedings fixed in accordance with Schedule 1 to the Rules of the Federal Magistrates Court Rules 2001.
That the respondent do within seven [7] days file and serve a schedule of costs calculated in accordance with Schedule 1 to the Rules of Court.
That the applicant do have liberty to apply for the matter to be relisted on the question of quantum of costs within fourteen [14] days of the service upon him of the schedule referred to in paragraph (2) hereof.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 327 of 2010
| JEFFREY STEED |
Applicant
And
| RECRUITCO |
Respondent
REASONS FOR JUDGMENT
On 21 February 2011 Mr Steed filed a Notice of Discontinuance in relation to his application alleging unlawful discrimination on the ground of age pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (hereinafter referred to as “the Act”).
His application was filed on 25 November 2010 and first came before me on 31 January 2011.
On that date the respondent through his solicitors had filed an Application in a Case seeking orders that the application be summarily dismissed or, in the alternative, that the applicant provide further and better particulars.
The applicant was employed as a casual hire labourer by the respondent in 2008. He took a number of placements with the company in 2008 and 2009. On 14 and 15 December 2009 he was placed by the respondents with an employer known as Sita Environmental Solutions (hereinafter referred to as “Sita”). On 15 December 2009 Sita complained to the respondent about certain aspects of the applicant’s performance and indicated that they required an alternative worker to be provided. The respondent complied with Sita’s request.
The respondent alleged that the applicant had not contacted it since he finished his employment with Sita.
The application filed on 25 November was filed by Mr Steed himself and without any apparent legal assistance. It sought simply the sum of $20,000 and an apology and under the part of the application that dealt with the grounds of the application simply stated:
Victimisation.
Section 51 of the Age Discrimination Act 2001 provides:
(1) A person (the first person) commits an offence if:
(a) the first person engages in conduct; and
(b)the first person's conduct causes detriment to another person (the second person ); and
(c) the first person intends that his or her conduct cause detriment to the second person; and
(d) the detriment is caused without the consent of the second person; and
(e) the first person engages in his or her conduct because he or she believes that:
(i) the second person has made, or proposes to make, a complaint under the Australian Human Rights Commission Act 1986 ; or
(ii) the second person has brought, or proposes to bring, proceedings under the Australian Human Rights Commission Act 1986 against any person; or
(iii) the second person has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986 ; or
(iv) the second person has attended, or proposes to attend, a conference held under the Australian Human Rights Commission Act 1986 ; or
(v) the second person has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986 ; or
(vi) the second person has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986 ; or
(vii) the second person has made an allegation that a person has done an act that is unlawful by reason of a provision of Part 4 of this Act.
Penalty: Imprisonment for 6 months.
Subsection (2) of the s.51 goes on to create an offence in relation to the threat of detriment.
In each case the Act here provides that complaints can be made to the Commission about conduct that is an offence under this sub-section because that falls within the definition of unlawful discrimination in sub-section (3)(1) of the Act here, and s.46P of the Act.
The respondent contends, and it is not disputed by the applicant, that on 5 January 2010 he lodged a complaint of unlawful discrimination under the Australian Human Rights Commission Act 1986 (Cth) against Sita in respect of their termination of his employment.
The applicant later added the respondent to that complaint.
I was informed by the respondent’s legal representatives, and it was not disputed by the applicant, that he had resolved his application against Sita. I was not told the terms upon which that application resolved.
Unsurprisingly, in the light of the dearth of information in the application, there were a series of letters written by the respondent’s legal representatives to the applicant in which they asked him to identify his cause of action. That correspondence has been produced to me.
On 31 January I listed the application for summary determination before me on 14 February 2011 and ordered the applicant to file and serve such amended application as he may be advised and any responsive affidavit to that which had been filed by the respondent by no later than 10 February.
He filed an affidavit on 10 February in which he gave some further information in relation to this claim.
His concern arose from the fact that he thought Sita had not wanted to continue with his employment because of his age and because they said things to him when he returned from a shift which indicated they wanted someone younger and fitter. He said that he told the General Manager of Sita that he was going to make a complaint to the Australian Human Rights Commission about what was said to him. He said that he rang Recruitco on 15 December 2010 to let them know that he was going to make the complaint to the Human Rights Commission. He said that the personnel of Recruitco did not support him in his belief that the words of which he complained by Sita officers were inappropriate and that Recruitco attempted to persuade him not to make a complaint.
At no stage were the words used by Sita’s officers detailed and no elucidation of the way in which Recruitco was said to have victimised the applicant was given.
It was in the light of the applicant’s failure to respond to that correspondence in any meaningful way that the order for summary dismissal was sought. However, on 14 February 2011 when that application came before me, the respondent elected not to pursue the application for summary dismissal but instead sought from me and obtained an order for further and better particulars.
In particular, I ordered:
1. Within twenty-one [21] days the applicant do file and serve upon the legal representatives of the respondent written notice of the following matters:
(f)the conduct in which the respondent engaged said to constitute an offence under section 51(1)(a) of the Age Discrimination Act 2004 including a description of the officer or officers of the respondent who engaged in such conduct and including particulars as to dates on which such conduct was engaged in and if such conduct was constituted by words, full particulars of such words;
(g) the way in which the conduct referred to in sub-order 1 (a) hereof caused detriment to the applicant, including full particulars as to the dates upon which such detriment was caused and, where the detriment is financial, full particulars of such financial detriment;
(h) full particulars of the facts upon which the applicant will rely to establish that the officer or officers of the respondent intended that their conduct would cause detriment to him;
(i) full particulars of the complaint or complaints made or proposed to be made under the Australian Human Rights Commission Act 1986 which is said to ground the belief referred to in section 1(e);
(j) full particulars as to the steps taken by the applicant following upon the conduct alleged to mitigate or ameliorate the detriment referred to in sub-order 1 (b) hereof.
I adjourned the matter to 21 March 2011.
In the meantime, the applicant filed a Notice of Discontinuance.
On 17 March 2011 the respondent filed an Application in a Case for costs which was listed before me on 18 April 2011.
Pursuant to Rule 21.03 of the Rules of Court I can specify the maximum amount of costs that may be recovered on a party/party basis and I can do that at the first Court date or of my own motion.
The respondent seeks an order for costs in accordance with the Federal Magistrates Court scale which is set out in Schedule 1 to the Rules of Court.
It is difficult to identify in the material filed in this case any “public interest” issues which might warrant a departure from the usual order in relation to costs pursuant to which the successful party should expect their costs to be paid by the unsuccessful party. Whatever factors might have actuated the application against Sita in the factual circumstances that have been described in the application, it is not clear what acts or words the applicant considered the officers of Sita had engaged in, such as to warrant the application being brought in relation to victimisation. We never reached the stage of being able to assess the seriousness or otherwise of the applicant’s claim.
Manifestly, it could not continue through the Court in the way in which he had filed it. The affidavit he filed pursuant to the order I first made on 31 January 2011 did little to illuminate his claim.
The order for particulars that I made on 14 February was required to enable the respondent to identify the nature of the claim against it and, faced with his obligations under that order, the applicant simply discontinued.
The affidavit material that has been received by me and upon which the applicant has not raised any objection or dispute, indicates that the matters canvassed by me in my order for particulars in February were the kinds of matters that were canvassed on several occasions by the respondent’s solicitors with the applicant in correspondence before the matter even reached the Court.
The applicant has not been able to explain to me why he has not heeded the numerous requests for particulars that were made, such requests in my view being reasonable in the circumstances.
The unrepresented status of the applicant must be taken into account. On each occasion he came before me I did my best to encourage him to seek the assistance of a legal representative or legal aid bodies as I was concerned that on each of those occasions he had failed to identify with any particularity the nature of his claim.
I think I ought to also take into account the fact that the proceedings resolved at a relatively early stage. True it is that the respondent was obliged to file and serve an application for summary dismissal (the order for particulars was sought in the alternative), and true it is that all of the potential problems with his application had been identified in correspondence when the matter was before the Commission. But I do not think I can necessarily impute to a self represented person the same degree of wilful blindness to real problems in proceeding with the application that would have been pertinent in the case of an application pursued by a legal representative on behalf of a client.
On the other hand, I was not able to identify in any of the material filed by the applicant anything that was suggestive of any merit in his claim.
It is I think fair for me to infer that self represented persons find it more difficult to bring themselves to a decision to discontinue claims in which they have a personal or emotional investment than it is to accept the advice of a legal representative to the same effect.
Nevertheless, taking all of these matters into account I do not think the self represented status of the applicant or his decision to discontinue at a relatively early stage of the proceedings in combination are enough for me to depart from the general rule that costs should be awarded and I will so order.
The amount of costs has not been quantified and that is not a matter I took up with the respondent’s legal representatives when the application was made but I think it is appropriate for me to have some idea of the costs that are being sought before I formally make the order. I have already referred to the discretion I have to fix a maximum amount of costs. That is one reason why I would like to know the amount of costs that are sought. Another reason is that the costs are relatively easily assessable by reference to the straightforward Schedule to our Rules.
Another reason is that the mechanism by which the costs can be taxed is not clear. Rule 21.02(2) provides for the referral of the costs for taxation under Order 62 of the Federal Court Rules. It is not at all clear that the taxing officer would be able to determine the costs in accordance with the Schedule to our Rules.
For all of those reasons I propose to make an order that the respondents file and serve within seven days a Schedule of the costs sought by them.
Mr Steed can be given liberty to apply within fourteen days of his receipt of such Schedule of Costs for the matter to be relisted so he can be heard on any matter relating to quantum.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 27 April 2011
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