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 Court Rules, O.23, r.11 |
| 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…
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- Case
- [2011] FMCA 141
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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:
1.
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.
2.
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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