FEDERAL COURT OF AUSTRALIA Bru Net Pty Ltd v Murphy [2003] FCA 244 BRU NET PTY LTD (ACN 007 980 145) v SUSAN MURPHY S 277 of 2002 SELWAY J ADELAIDE 11 MARCH 2003 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 277 OF 2002 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: BRU NET PTY LTD (ACN 007 980 145) APPELLANT AND: SUSAN MURPHY RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 11 MARCH 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The respondents to have its costs of the appeal to be taxed or agreed. 3. The time for any appeal should run from the delivery of the written reasons. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 277 OF 2002 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: BRU NET PTY LTD (ACN 007 980 145) APPELLANT AND: SUSAN MURPHY RESPONDENT JUDGE: SELWAY J DATE: 11 MARCH 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This matter arises out of a complaint by the respondent to the Human Rights and Equal Opportunities Commission ("HREOC"), apparently that she had been discriminated against in her employment on account of her sex. Although the original complaint specified a number of individuals, as well as "Ray White Real Estate" as those subject to the complaint, by the time that it had been investigated by HREOC, the respondents were described by HREOC as "David Loper", "Fasselton Pty Ltd trading as Ray White Semaphore" and "Ray White South Australia". 2 HREOC terminated its consideration of the complaint and proceedings were instituted in this Court pursuant to s 46 PO of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) ("the Act"). The respondents to those proceedings were described as "David Loper" and "Bru Net Pty Ltd (ACN 007 980 145) trading as Ray White Semaphore" ("the appellant"). 3 It would appear from the material before me that "Fasselton Pty Ltd" was the owner of the trading name Ray White Semaphore for a time, but that at some other time the appellant was the owner of that trading name. Which one of these companies owned the trading name at the relevant date or dates (whatever they may be) may be in dispute, but does not now need to be determined. 4 The matter was referred to the Federal Magistrates Court by von Doussa J on 30 April 2002. In that court counsel for the appellant applied to have the proceedings struck out as against his client. His argument was that under s 46 PO of the Act proceedings in this Court could only be taken against "one or more respondents to the terminated complaint". He argued that the relevant respondent before the commission was Fasselton Pty Ltd, not Bru Net Pty Ltd. The learned Federal Magistrate accepted this submission and struck out the proceedings in relation to the appellant. That order has not been challenged, and I make no comment in relation to it. 5 Counsel for the now appellant applied for an order for indemnity costs. Counsel for the now respondent argued that there should be no order for costs. The learned Federal Magistrate discussed the various principles in relation to awarding costs. She noted the breadth of the discretion to award costs under s 79 of the Federal Magistrates Act 1999 (Cth). She noted the general principle that costs should follow the event. She referred to the decision of this Court in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, particularly at 232-233. She noted that ordinarily costs should be awarded on a party-party basis but that the Court can depart from that general rule when justice requires. The learned Federal Magistrate also noted that circumstances where justice might so require may include cases which were instituted capriciously or improperly. 6 In the result the learned Federal Magistrate ordered that costs be paid in accordance with the scale under r 21 of the Federal Magistrates Court Rules. The appellant has appealed against that order for costs. Under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice has determined that the appeal should be heard by a single judge. 7 The principles for the determination of an appeal from a discretionary costs order are clear enough. The discretion of the Federal Magistrate was absolute and unfettered, although it had to be exercised judicially. See for example Oshlack v Richmond River Council (1998) 193 CLR 72 at [20], [31], [35] and [110-112]. An appeal from such a discretionary decision will not succeed merely because the appeal court would not itself have reached the same conclusion as the trial court. Such a discretion can only be set aside on appeal if the decision was the result of some error of principle made by the court appealed from. See House v The King (1936) 55 CLR 499 at 504-505; Gore (trading as Clayton Utz) v Justice Corporation Pty Ltd (2000) 189 ALR 712 at 730 [50]. 8 Mr Moloney, who appeared for the appellant, has argued that the institution of these proceedings against the appellant by the respondent, involved what was in effect an abuse of process. I do not accept this. It certainly involved error, but an error, even a significant one, is not necessarily an abuse of process. He also argued that the learned Federal Magistrate took into account irrelevant considerations, namely, that the issue was disposed of in a summary way and that the now appellant was not put to significant costs. However, it seems to me that those considerations could properly be taken into account by the learned Federal Magistrate in her discretionary judgment as to whether to grant indemnity costs. Certainly if there had been delay or significant costs incurred by the respondent these would have been relevant to the issue. I see no error of principle in her Honour referring to these matters. In this case no error of principle by the learned Federal Magistrate has been identified. Consequently the appeal must be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 24 March 2003 Counsel for the Applicant: Mr P N Moloney Solicitor for the Applicant: Moloney & Partners Counsel for the Respondent: Mr S P Dolphin Solicitor for the Respondent: Lieschke & Weatherill Date of Hearing: 11 March 2003 Date of Judgment: 11 March 2003