Zoltaszek v Downer EDI Engineering Pty Ltd (No.3) - [2011] FMCA 141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZOLTASZEK v DOWNER EDI ENGINEERING PTY LTD (No.3)

[2011] FMCA 141

HUMAN RIGHTS – Costs – whether respondent entitled to costs on an indemnity basis.

Disability Discrimination Act 1992 (Cth), ss.15, 17, 35
Federal Magistrates Act 1999 (Cth), s.79

Federal Court Rules, O.23, r.11

Alpine Hardwoods (Aust) Pty Ltd and Another v Hardys Pty Ltd and Another (No.2) (2002) 190 ALR 121; [2002] FCA 224
Black v Lipovac (by his next friend Lipovac) and Others (1998) 217 ALR 386; [1998] FCA 699
Calderbank v Calderbank [1975] 1 All ER 333; [1975] 3 WLR 586
Colgate-Palmolive Company and Another v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248
Fetherston v Peninsula Health and Others (2004) 137 FCR 262; [2004] FCA 594
Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40
Gluyas v Commonwealth of Australia (No.2) [2004] FMCA 359
IFTC Broking Services Ltd and Another v Commissioner of Taxation (2010) 268 ALR 1; [2010] FCAFC 31
Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No.2) (2004) 212 ALR 281; [2004] FCA 1437
Salfinger v Niugini Mining (Australia) Pty Ltd (No.4) [2007] FCA 1594
Spalla v St George Motor Finance Ltd (No.8) [2006] FCA 1537
Zoltaszek v Downer EDI Engineering Pty Ltd (No.2) [2010] FMCA 938

Applicant:

ZENON ZOLTASZEK

Respondent:

DOWNER EDI ENGINEERING PTY LIMITED

File Number:

SYG 1569 of 2009

Judgment of:

Barnes FM

Hearing date:

22 February 2011

Delivered at:

Sydney

Delivered on:

22 February 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

FCB Workplace Lawyers & Consultants

ORDERS

The applicant pay the respondent’s costs up to 11 am on 27 August 2010 taxed on a party and party basis in accordance with the Federal Court Rules.
The applicant pay the respondent’s costs incurred after that time taxed on an indemnity basis in accordance with the Federal Court Rules.

THE COURT NOTES:

The undertaking given by the respondent not to take steps to enforce any costs order until the Federal Court appeal has been determined and the undertaking of the applicant not to dispose of any assets during the period of stay of execution of any costs order.
The costs of attendance of the respondent at the directions hearing on 17 December 2009 were fixed in the sum of $480.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1569 of 2009

ZENON ZOLTASZEK

Applicant

And

DOWNER EDI ENGINEERING PTY LIMITED

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 1 July 2009 Mr Zoltaszek commenced proceedings in this court alleging discrimination and harassment under the Disability Discrimination Act 1992 (Cth) by the respondent, Downer EDI Engineering Pty Limited (Downer). He asserted that the conduct he complained of was discrimination in employment within s.15 of the Act or, in the alternative, that the conduct was within s.17 of the Act as discrimination against a contract worker. He also asserted that Downer engaged in harassment contrary to s.35 of the Act and raised issues…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 141
Decision Date: 22 February 2011

CaseChat Overview and Summary

In Zoltaszek v Downer EDI Engineering Pty Ltd (No. 3), the Federal Court was called upon to adjudicate on a matter of costs associated with an ongoing dispute between the applicant, Zoltaszek, and the respondent, Downer EDI Engineering Pty Ltd. The underlying dispute pertains to complex commercial litigation, which has necessitated multiple hearings and appeals. The particular issue before the court was the allocation of costs incurred during the proceedings, particularly focusing on the period after the stay of execution of a costs order had been granted.

The primary legal issue the court had to address was the appropriate basis for taxing the costs incurred by the respondent, Downer EDI Engineering Pty Ltd, after the stay of execution of a costs order. The applicant, Zoltaszek, argued that the costs incurred post-stay should be taxed on a party and party basis. Conversely, the respondent maintained that an indemnity basis was more appropriate given the circumstances. The court had to consider the relevant legal principles governing costs in the Federal Court and how they applied to the facts of this case.

The court, after considering the arguments presented by both parties, determined that the costs incurred by the respondent after the stay of execution should be taxed on an indemnity basis. The court reasoned that this approach was consistent with the general principles governing costs in the Federal Court. It noted that the stay of execution was intended to protect the applicant from immediate financial hardship and did not reflect a resolution of the underlying costs dispute. Therefore, the court concluded that an indemnity basis was more appropriate to ensure that the respondent was not unduly penalised for costs incurred after the stay. The court also noted the undertakings given by both parties regarding the enforcement of any costs order and the disposal of assets during the stay period.

Orders

Orders of the court

The applicant pay the respondent’s costs up to 11 am on 27 August 2010 taxed on a party and party basis in accordance with the Federal Court Rules.

The applicant pay the respondent’s costs incurred after that time taxed on an indemnity basis in accordance with the Federal Court Rules.

THE COURT NOTES:

The undertaking given by the respondent not to take steps to enforce any costs order until the Federal Court appeal has been determined and the undertaking of the applicant not to dispose of any assets during the period of stay of execution of any costs order.

The costs of attendance of the respondent at the directions hearing on 17 December 2009 were fixed in the sum of $480.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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