Zoltaszek v Downer EDI Engineering Pty Ltd (No 2)

[2011] FCA 784

FEDERAL COURT OF AUSTRALIA

Zoltaszek v Downer EDI Engineering Pty Ltd (No 2) [2011] FCA 784

Citation:		Zoltaszek v Downer EDI Engineering Pty Ltd (No 2) [2011] FCA 784
Appeal from:		Zoltaszek v Downer EDI Engineering Pty Ltd (No 2) [2010] FMCA 938
Parties:		ZENON ZOLTASZEK v DOWNER EDI ENGINEERING PTY LTD
File number:		NSD 1848 of 2010
Judge:		FLICK J
Date of judgment:		13 July 2011
Catchwords:		COSTS – costs to follow the event – absence of reason to contrary
Legislation:		Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:		Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496, referred to Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 6) [2010] FCA 381, referred to IFTC Broking Services Limited v Federal Commissioner of Taxation [2010] FCAFC 31, referred to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, referred to Zoltaszek v Downer EDI Engineering Pty Limited (No 2) [2010] FMCA 938, cited Zoltaszek v Downer EDI Engineering Pty Ltd (No 3) [2011] FMCA 141, cited Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744, cited
Date of hearing:	13 July 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	Mr M Robinson (FCB Workplace Lawyers & Consultants)

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1848 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ZENON ZOLTASZEK Appellant
AND:	DOWNER EDI ENGINEERING PTY LTD Respondent

JUDGE:	FLICK J
DATE OF ORDER:	13 JULY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Appellant is to pay the costs of the Respondent.

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
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1848 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ZENON ZOLTASZEK Appellant
AND:	DOWNER EDI ENGINEERING PTY LTD Respondent

JUDGE:	FLICK J
DATE:	13 JULY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)

1. On 1 July 2009 the Appellant, Mr Zoltaszek, filed an application in the Federal Magistrates Court pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act1986 (Cth). He alleged discrimination and harassment under the Disability Discrimination Act1992 (Cth).

2. That application was dismissed and reasons for doing so were delivered on 3 December 2010: Zoltaszek v Downer EDI Engineering Pty Limited (No 2) [2010] FMCA 938. The Federal Magistrate subsequently considered submissions in respect to costs and in February 2011 ordered that costs on an indemnity basis were to be paid as from the date of an offer of compromise made in that proceeding on 26 August 2010: Zoltaszek v Downer EDI Engineering Pty Ltd (No 3) [2011] FMCA 141.

3. Mr Zoltaszek subsequently appealed to this Court from the December 2010 judgment. That appeal was dismissed on 1 July 2011: Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744. Again, the parties by consent wished to separately address the question of costs of the appeal to this Court.

4. In the absence of any reason to the contrary, the normal position, pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) is that costs should follow the event: see Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496 at 509 per Beaumont J; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 to 235 per Black CJ and French J. There must be a reason to depart from this position if costs are to be paid on an indemnity basis.

5. The legal representative on behalf of the Respondent does not rely upon any offer of compromise or any “presumptive entitlement” to indemnity costs so as to invoke O 23 r 11 of the Federal Court Rules: see Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 6) [2010] FCA 381 per Logan J; IFTC Broking Services Limited v Federal Commissioner of Taxation [2010] FCAFC 31 at [9], 268 ALR 1 at 4 per Stone, Edmonds, and Jagot JJ.

6. There is no reason why the ordinary rule should therefore not apply.

   ORDERS

   The Orders of the Court are:

   1.The Appellant is to pay the costs of the Respondent.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:       14 July 2011