FEDERAL COURT OF AUSTRALIA Fetherson v Peninsula Health (No. 2) [2004] FCA 594 COSTS – whether case under Disability Discrimination Act a no costs matter – exercise of judicial discretion – whether public interest factors weighed against order of costs in favour of successful respondents – High Court decision handed down after proceeding commenced – whether public interest factors applicable – conduct of respondents – costs of excessive photocopying Disability Discrimination Act 1992 (Cth) Fetherston v Peninsula Health [2004] FCA 485 cited Purvis v New South Wales (Department of Education and Training) (2004) 78 ALJR 1 discussed Tadawan v State of South [2001] FMCA 25 at [62] not followed Ball v Morgan [2001] FMCA 127 at [83] applied Physical Disability Council of New South Wales v Sydney City Council [1999] FCA 815 applied Tate v Rafin [2000] FCA 1582 at [71] applied Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477 applied Latudis v Casey (1990) 170 CLR 534 at 557 applied Ruddock v Vadarlis (No.2) (2001) 115 FCR 229 distinguished Purvis v New South Wales Department of Education and Training (2002) 117 FCR 237 cited DR GRAHAM JOHN FETHERSTON V PENINSULA HEALTH & ORS (No 2) NO. V 391 OF 2002 HEEREY J 11 MAY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V391 OF 2002 BETWEEN: DR GRAHAM JOHN FETHERSTON APPLICANT AND: PENINSULA HEALTH FIRST RESPONDENT DR JOHN BOTHA SECOND RESPONDENT ASSOCIATE PROFESSOR DAVID LANGTON THIRD RESPONDENT DR PETER BRADFORD FOURTH RESPONDENT MR MICHAEL DAWSON-SMITH FIFTH RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 11 MAY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The stay on the order for costs made on 23 April 2004 is revoked. 2. The applicant pay the costs of the respondents' submissions, except for the costs of the photocopies supplied on 10 May 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V391 OF 2002 BETWEEN: DR GRAHAM JOHN FETHERSTON APPLICANT AND: PENINSULA HEALTH' FIRST RESPONDENT DR JOHN BOTHA SECOND RESPONDENT ASSOCIATE PROFESSOR DAVID LANGTON THIRD RESPONDENT DR PETER BRADFORD FOURTH RESPONDENT MR MICHAEL DAWSON-SMITH FIFTH RESPONDENT JUDGE: HEEREY J DATE: 11 MAY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 23 April 2004 I handed down a judgment which dismissed an application brought by the applicant Dr Graham John Fetherston seeking relief under the Disability Discrimination Act 1992 (Cth) in respect of the termination of his employment as Deputy Director Intensive Care Unit at the Frankston Hospital: Fetherston v Peninsula Health [2004] FCA 485. 2 Although the judgment included an order that Dr Fetherston pay the respondents' costs, I accepted the submission of counsel for Dr Fetherston that the costs order be stayed to enable him to consider the judgment and, if thought appropriate, make submissions as to costs. 3 Subsequently counsel filed written submissions and counsel for the respondents filed answering submissions. The respective contentions have been fully raised in counsel's submissions and it seemed to me unnecessary to hear oral argument, especially in the light of the further expense which would be involved. 4 In support of his contention that no order for costs should be made, counsel for Dr Fetherston raised the following arguments: 1. The jurisdiction of the court under the Disability Discrimination Act is a no cost jurisdiction, or alternatively the court might be "less likely automatically to make an order that costs follow the event". 2. Issues of public interest were raised. 3. The High Court's decision in Purvis v New South Wales (Department of Education and Training) (2004) 78 ALJR 1 was handed down on 11 November 2003 which was seventeen months after the application was filed. 4. The conduct of the respondents should disentitle them to costs. A no cost jurisdiction 5 Counsel relied on a decision of Raphael FM in Tadawan v State of South Australia [2001] FMCA 25 where it was said at [62]: "The [Federal Magistrates] Court has accepted that these matters were normally considered to be 'no cost matters' as evidenced by the practice of State Tribunals and the fact that there was no power in HREOC to award costs. The Court has recognised that where proceedings are brought a successful party should not have the benefit of his or her victory lost in costs. The Court is also anxious not to discourage litigants from bringing claims which may well have merit because of the fear of an adverse costs order in the event that the applicant is unsuccessful. On the other hand the Court can use its powers in relation to costs and discourage unmeritorious claims". 6 That view has been firmly rejected within the Federal Magistrates Court itself. In Ball v Morgan [2001] FMCA 127 McInnis FM said at [83]: "The suggestion that human rights matters are normally to be considered as 'no costs' matters is therefore in my opinion misconceived and cannot be regarded as an appropriate legal principle to be applied in human rights applications". 7 Single judges of the Federal Court have proceeded to deal with costs on a basis which plainly recognises that the Court has power to award costs and, generally speaking, they should be ordered in favour of the successful party, although discretionary factors may lead to a different result: Physical Disability Council of New South Wales v Sydney City Council [1999] FCA 815, Tate v Rafin [2000] FCA 1582 at [71]. 8 The general rule is that a wholly successful defendant should receive his or her costs unless good reason is shown to the contrary: Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477. As Dawson J said in Latudis v Casey (1990) 170 CLR 534 at 557, the discretion as to costs remains absolute and unfettered but it is to be exercised judicially, that is to say "… not by reference to irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation." 9 While the Disability Discrimination Act is without doubt beneficial legislation, its characterisation as such does not mean that this Court is to apply any different approach as to costs. In conferring jurisdiction under a particular statute Parliament may conclude that policy considerations warrant a special provision as to costs, for example that there be no order as to costs or that costs only be awarded in certain circumstances, such as, for example, where a proceeding has been instituted vexatiously or without reasonable cause: Workplace Relations Act 1996 (Cth) s 347. The absence of any such provision applicable to the present case confirms that the usual principles as to costs are to apply. Public interest issues 10 Counsel for Dr Fetherston submitted that some of the circumstances relied on in Ruddock v Vadarlis (No.2) (2001) 115 FCR 229 were applicable by way of analogy. In that case the Full Court consisting of Black CJ and French J, with Beaumont J dissenting, held that an order for costs should not be made against the unsuccessful applicants in the Tampa litigation. The applicants succeeded at first instance but the judgment was reversed on appeal. 11 The features said to be analogous were (at [28]): "That the proceeding raised novel and important questions of law concerning the alleged deprivation of the liberty of the individual, the executive power of the Commonwealth, the operation of the Migration Act and Australia's obligations under international law. There was divided judicial opinion on these important issues, illustrating their difficulty." 12 In exercising a discretion it is usually not particularly helpful to look at other decided cases and extract from them factors said to be analogous to the case under consideration. The reason why this is so is that each discretionary decision must turn on a consideration of the relevant circumstances of that case and the application of general principle. At a practical level, if one looks at another case and takes one or two factors said to be analogous and supporting a particular conclusion, there will almost inevitably be other factors distinguishable or pointing the other way. One can easily get lost in a "wilderness of single instances". 13 The present case, like most cases, was important to the parties themselves. However it involved the construction of a statute and its application to facts found on the evidence presented by the parties. As such it is far removed from the rare case like Ruddock v Vadarlis, raising as it did questions of profound constitutional importance. 14 The question of divided judicial opinion leads me to the next point. The High Court's decision in Purvis 15 Although the decision of the High Court in Purvis was handed down a few months before the hearing, the High Court confirmed the decision of the Full Court of the Federal Court (Purvis v New South Wales Department of Education and Training (2002) 117 FCR 237) handed down on 24 April 2002, that is several months before the present proceeding was initiated. There was thus clear authority, binding on a single judge of this Court, which stood in the way of the application when it was commenced. The fact that there were dissenting judgments when the case was finally decided by the High Court is not to the point. Conduct of the respondent 16 In counsel's submission it was said that the various complaints raised about Dr Fetherston by staff at the Frankston Hospital had not been put to him, that where those concerns were set out in witness statements they were "imprecise, ephemeral and difficult to evaluate" and, furthermore, that the conduct of Dr Langton in "seeking to impose" upon Dr Fetherston the ophthalmic review of Dr Galbraith "gave rise to further controversy and inflamed the situation". 17 There is no substance in these complaints. It would have been quite unwise, and indeed unfair to Dr Fetherston, for those in authority at the Frankston Hospital to establish some kind of quasi-judicial process in relation to the concerns expressed about him. The sensible course was to have his current visual capacity assessed by an independent expert. And it should not be forgotten this was only a part of the course of action proposed – as well the advice was sought of Dr Wyatt, an occupational physician, with the express objective of seeing if there was some way in which Dr Fetherston's position at the hospital could be continued, notwithstanding his health difficulties. 18 In human terms, this whole matter has been disastrous for Dr Fetherston and sympathy for his predicament is natural. But equally it has to be recognised that the respondents had serious obligations to patients in their care. I do not think their conduct can be criticised, still less does it found a basis for depriving them of costs. 19 There will be an order that the stay on the order of costs is revoked and that Dr Fetherston pay the costs of the respondents' submissions, subject to the following exception. 20 The respondents' solicitors sent to my Associate photocopies of nine decisions, totalling some 199 pages. There was no request for these to be supplied. They even included Purvis itself, a photocopy of which had been provided at the earlier hearing. It would be quite unfair to impose the cost of these photocopies on Dr Fetherston. I hope the solicitors for the respondent, a highly reputable firm, will not impose the cost on their clients. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 11 May 2004 Counsel for the Applicant: Maddocks Solicitor for the Applicant: P Burchardt Counsel for the Respondents: C O'Grady Solicitor for the Respondents: Phillips Fox Date of Hearing: 23 April 2004 Date of Judgment: 11 May 2004