Walker v State of Victoria (No 2)

[2011] FCA 417

FEDERAL COURT OF AUSTRALIA

Walker v State of Victoria (No 2) [2011] FCA 417

Citation:		Walker v State of Victoria (No 2) [2011] FCA 417
Parties:		ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) v STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
File numbers:		VID 829 of 2008 VID 401 of 2009
Judge:		TRACEY J
Date of judgment:		28 April 2011
Legislation:		Disability Discrimination Act 1992 (Cth) Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:		Devers v Kindilan Society (2010) 260 ALR 404 cited Devers v Kindilan Society (2009) 263 ALR 433 cited Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 cited Purvis v State of New South Wales (Department of Education and Training) (2002) 117 FCR 237 cited Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 applied State of New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 cited Walker v State of Victoria [2011] FCA 258 referred to
Date of last submissions:	6 April 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr D Perkins and Mr D J Hancock
Solicitor for the Applicant:	Access Law
Counsel for the Respondent:	Mr J L Bourke and Mr M Felman
Solicitor for the Respondent:	Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 829 of 2008

BETWEEN:	ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) Applicant
AND:	STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	28 APRIL 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

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

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 401 of 2009

BETWEEN:	ALEX WALKER (BY HIS NEXT FRIEND, PAIGE WALKER)
AND:	STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	28 APRIL 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

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

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 829 of 2008

BETWEEN:	ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) Applicant
AND:	STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent

GENERAL DIVISION VID 401 OF 2009

BETWEEN:	ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) Applicant
AND:	STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent

JUDGE:	TRACEY J
DATE:	28 APRIL 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 23 March 2011 I dismissed the Applicant’s application in this proceeding:  see Walker v State of Victoria [2011] FCA 258.

2. The parties wished to have time to consider my reasons before making submissions as to costs.  As a result I gave directions for a timetable under which any applications for costs could be made, supported by written submissions, and responded to.

3. The Respondent submitted that costs should follow the event.  It filed and served an outline of argument in support of its submission.

4. The Applicant has made no application and no submissions relating to the awarding of costs.

5. The Court has a broad and unfettered discretion, under s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs in proceedings. Within that general discretion it has long been accepted that costs will ordinarily follow the event and that a successful litigant will receive costs in the absence of special circumstances which justify the making of some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 (per Black CJ and French J). The ordinary rule recognises that the successful party will have incurred costs in prosecuting or defending the proceeding and is entitled to be compensated.

6. The Applicant has not sought to suggest that any special circumstances exist which would justify a departure from the ordinary rule.  Nor am I able to discern any reason which would justify such a departure.  I note in this context that costs were awarded against the unsuccessful applicants, both at first instance and on appeal, in a number of recent cases brought under the Disability Discrimination Act 1992 (Cth): see, for example, State of New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 at [67]; Purvis v State of New South Wales (Department of Education and Training) (2002) 117 FCR 237 at [37]; Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [237]; Devers v Kindilan Society (2009) 263 ALR 433 at [154]; Devers v Kindilan Society (2010) 269 ALR 404 at [138].

7. The Applicant should pay the Respondent’s costs of and incidental to the application, including reserved costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        28 April 2011