Abbott Australasia Pty Ltd v Human Rights & Equal Opportunity Commission & Ors [1998] FCA 1739

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 476 of 1997

BETWEEN: ABBOTT AUSTRALASIA PTY LIMITED

Applicant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

ALYSCHIA DIBBLE

Second Respondent

LYDIA STEPHENSON

Third Respondent

ST VINCENT'S HOSPITAL SYDNEY LIMITED

fourth respondent

JUDGE: THE HON JUSTICE MARCUS EINFELD

DATE: 29 SEPTEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT Judgment was given in this matter on 31 July 1998 and the case is now on appeal to a Full Court (the judgment). The only outstanding matter is the question of costs. Abbott requests that there be no order as to costs. The Commission and Stephenson do not seek costs. St Vincent's seeks an order that Abbott pay its costs. As the judgment discloses, it is to be alleged in any substantive case that reaches a hearing in the Commission that St Vincent's tried to have Ms Dibble included in the test but Abbott's parent or US company refused permission. If that assertion is proved, it will assist to show that St Vincent's did no unlawful act and ought not to be a respondent to the complaint. However that may affect the costs of any proceedings on the complaint where costs may be awarded, it cannot affect the costs of the current proceedings which are of an interlocutory or threshold character affecting whether there is any subsisting complaint that can be heard at all and if so in what form and with what parties. In the matters agitated in these aspects of the proceedings, St Vincent's failed on the issues of whether Ms Stephenson should have been substituted as the complainant and therefore as to her cross-application, and as concerned the relief she could seek. However, its failure was not in relation to Abbott's application for judicial review with which in these respects it either substantially agreed or put no view at all. Although made a party by Abbott to the application, it needed to do nothing more than agree with it. Accordingly, there is no basis for ordering Abbott to pay St Vincent's costs here. There will therefore be no order as to costs in these proceedings. It may be that if St Vincent's succeeds in any substantive proceedings where costs may be awarded, its costs in these proceedings will be recoverable then. I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO