Librizzi v Flower Power Pty Ltd [2000] FCA 1500

FEDERAL COURT OF AUSTRALIA

Librizzi v Flower Power Pty Ltd [2000] FCA 1500 COSTS – relevance of a grant of legal aid to the unsuccessful party – whether the conduct of the parties before the Human Rights and Equal Opportunity Commission is a proper circumstance to consider on the issue of costs

HUMAN RIGHTS – costs on judicial review of a decision of the Commission Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth), s 43 Sex Discrimination Act 1984 (Cth), s 81 Legal Aid Commission Act 1979 (NSW), s 47

Re Sanchez Ex parte Smits & Anor (1994) 49 FCR 326 Woodlands v Permanent Trustee Company Ltd (1996) 139 ALR 127 Thomas Fischer v Commonwealth of Australia [1997] FCA 1029 (25 September 1997)

Legal Aid Commission of New South Wales, Policy Bulletin No. 3/99 DENISE LIBRIZZI v FLOWER POWER PTY LTD N 307 of 1999 EINFELD J 25 OCTOBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 307 of 1999

BETWEEN: DENISE LIBRIZZI

Applicant

AND: FLOWER POWER PTY LTD

Respondent

JUDGE: EINFELD J

DATE OF ORDER: 25 OCTOBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. there be no order as to costs

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 307 of 1999

BETWEEN: DENISE LIBRIZZI

Applicant

AND: FLOWER POWER PTY LTD

Respondent

JUDGE: EINFELD J

DATE: 25 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 20 July 2000 I published my reasons for judgment in these proceedings (the judgment) dismissing the applicant's application for judicial review of a decision of the Human Rights and Equal Opportunity Commission (the Commission) made on 16 March 1999. The primary issue dealt with in the judgment was whether the Commission had made a reviewable error of law – as that phrase is understood in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – in deciding that whilst the applicant had been discriminated against on the basis of her pregnancy in contravention of the Sex Discrimination Act 1984 (Cth) (the Act), such discrimination did not amount to her having been constructively dismissed from the respondent's employ. The sufficiency of the Commission's award of $2000 by way of damages was also in issue. My determination of these issues was reached on the documentary evidence and written submissions, including the transcript of the proceedings before the Commission, without an additional oral hearing. As no submission asked for costs, I made no order. 2 Some three weeks after the judgment, the respondent's solicitor advised my Associate of his intention to apply for an order for costs. He has subsequently done so in writing, seeking an order that the applicant pay his client's costs as agreed or assessed, and the applicant has responded.