Trindall v NSW Commissioner of Police (No.2)

[2005] FMCA 267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRINDALL v NSW COMMISSIONER OF POLICE (No.2) [2005] FMCA 267

HUMAN RIGHTS – COSTS – Applicant successful on most issues – remaining issue not severable – offers made but not on a formal basis – application of ordinary costs principles.

Federal Magistrates Court Rules 2001 (Cth)

Trindall v NSW Commissioner of Police [2005] FMCA 2

Applicant: BRADLEY TRINDALL

Respondent: NSW COMMISSIONER OF POLICE

File Number: SYG 2100 of 2003

Judgment of: Driver FM

Hearing date: Decided on written submissions

Date of Last Submission: 7 March 2005

Delivered at: Sydney

Delivered on: 11 March 2005

REPRESENTATION

Counsel for the Applicant: Mr M Gibian

Solicitors for the Applicant: Jones Staff & Co

Counsel for the Respondent: Mr J Fernan

Solicitors for the Respondent: NSW Police Legal Services Unit

ORDERS

1. The respondent is to pay the applicant’s costs and disbursements of and incidental to the proceedings, including any reserved costs, fixed by reference to the scale of costs in schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2100 of 2003

BRADLEY TRINDALL

Applicant

And

NSW COMMISSIONER OF POLICE

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 7 February 2005 I gave judgment in the principal proceedings in this matter: Trindall v NSW Commissioner of Police [2005] FMCA 2.

   
   

   I made orders in the form of declaratory relief, damages, interest and costs in favour of the applicant (Constable Trindall).  The parties sought time to make submissions on costs and I invited written submissions. 

Submissions

1. Mr Gibian, for the applicant, submits that costs should follow the event and that the ordinary event based scale of costs in the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) should apply. He submits that there is no exceptional feature in these proceedings that would warrant a departure from the usual approach. He points to the importance of a costs award being made so as to ensure that the award of damages is not swallowed up by unreimbursed legal costs. He notes that Constable Trindall succeeded on all of this claims other than his claim of racial discrimination. He submits that there is no reason why, in the exercise of discretion, the Court should apportion costs, bearing in mind that the racial discrimination claim was not a “dominant or separable” issue and did not consume a substantial proportion of the proceedings time.

2. Mr Fernan, for the respondent notes that the power of the Court to award costs is discretionary and that Constable Trindall did not succeed in all elements of his proceedings. He notes that Constable Trindall failed in his racial discrimination claim and also was only partially successful in his claim for damages for economic loss. He notes that I also declined to order an apology. Mr Fernan submits that Constable Trindall did less well than offers put by the respondent, however he concedes that no formal offer of compromise was made to Constable Trindall. He also seeks the application of the ordinary event based scale of costs in the Federal Magistrates Court Rules, should a costs order be made against the respondent. Finally, Mr Fernan seeks an extension of time for an appeal.

Reasoning

1. It is in my view clear that costs should follow the event in this case.  The main reason why I gave the parties the opportunity to make submissions on costs was that it occurred to me that settlement offers may have been made that would need to be taken into account.  Both parties agree that no formal offers were made that need to be taken into account.  Constable Trindall was substantially successful in his claims.  I found both direct and indirect disability discrimination and granted most of the relief that he was seeking.  The racial discrimination claim is not readily severable from the disability discrimination claim.  Both depended upon Constable Trindall’s sickle cell trait which, as has been recognised overseas, is associated with particular races.  Although he was unsuccessful on the racial discrimination claim, it was reasonable and proper for Constable Trindall to advance it, as an alternative to the disability discrimination claim.

2. There is no significance as to costs in my refusal to require the respondent to make an apology.  I declined to order that an apology be given because I formed the view that it would be of no value to Constable Trindall unless it was genuine and sincere, and the NSW Police Commissioner did not need an order to make a sincere and genuine apology.  It does not follow that I do not think that an apology should be offered.

3. Both parties agree that the usual event based costs scale in the Federal Magistrates Court Rules should apply to an order for costs. I agree.

4. I will not extend time for an appeal.  As matters have turned out, the submissions made to the Court on costs establish that it would have been possible to deal with costs at the time I gave judgment in the principal proceedings.  I understand that Mr Fernan has been unavailable for a time which led to some delay in the provision of submissions on costs but that should not have prevented the respondent from seeking and obtaining appropriate advice as to an appeal.  If the representatives who attended to receive judgment had been fully instructed, I could have dealt with costs on the day judgment was delivered.  Any further request for an extension of time for an appeal should be made to the Federal Court.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 March 2005