Thompson v Big Bert Pty Ltd

[2008] FCA 792

FEDERAL COURT OF AUSTRALIA

Thompson v Big Bert Pty Ltd [2008] FCA 792

PRACTICE AND PROCEDURE – whether indemnity costs should be awarded as a result of an offer of compromise – no obligation to abandon a case to avoid costs – no unreasonableness established – no barrier to the award of costs in a separate statutory claim arises from the Workplace Relations Act 1996 (Cth) – costs of overlapping issues fixed on a proportional basis

Federal Court Rules O 23 r 11
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Workplace Relations Act 1996 (Cth)

Bahonko v Sterjov [2008] FCAFC 30
Goldman Sachs JB Were Services Pty Limited v Nikolich (2007) 163 FCR 62
McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 591
Seven Network v MEAA (2004) 148 FCR 145
Williams v Commonwealth Bank of Australia [1995] FCA 992

DONNA THOMPSON v BIG BERT PTY LTD T/AS CHARLES HOTEL
NSD 877 OF 2006
NSD 1948 OF 2006

BUCHANAN J
29 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA	NSD 877 OF 2006
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1948 OF 2006

BETWEEN:	DONNA THOMPSON Applicant
AND:	BIG BERT PTY LTD T/AS CHARLES HOTEL Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	29 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The applicant pay the respondent’s costs in matter NSD 1948 of 2006 on a party/party basis, provided that where costs were incurred with respect to those proceedings and matter NSD 877 of 2006 together, 60% only of the respondent’s costs be paid.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	NSD 877 OF 2006
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1948 OF 2006

BETWEEN:	DONNA THOMPSON Applicant
AND:	BIG BERT PTY LTD T/AS CHARLES HOTEL Respondent

JUDGE:	BUCHANAN J
DATE:	29 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. On 14 December 2007 I dismissed the applicant’s claims under the Workplace Relations Act 1996 (Cth) (‘the WR Act’) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’). I did not then deal with any issue of costs. The respondent has now sought costs of the proceedings under the HREOC Act. It does not seek any costs of proceedings under the WR Act.

2. The respondent relies upon an offer of compromise made on 3 January 2007 which was in the following terms:

   ‘1.The Respondent offers to compromise the claims of the Applicant in both proceedings 877 of 2006, and 1948 of 2006, on the terms outlined in this offer of compromise.  This offer is only for the settlement of both proceedings, and the Respondent states that pursuant to the terms of this offer, the Applicant cannot elect to only compromise one proceeding.

   2.The claim outlined in matter 1948 of 2006 be dismissed with no order as to costs.

   3.In relation to the claim made in matter 877 of 2006, the Respondent…