FEDERAL COURT OF AUSTRALIA Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390 File number: VID 704 of 2012 Judge: JESSUP J Date of judgment: 20 April 2016 Catchwords: COSTS – Whether respondents entitled to costs thrown away when not previously reserved – Adjusting costs for applicant's success in maintaining partial claim despite general strike out. Legislation: Disability Discrimination Act 1992 (Cth) Cases cited: Low v Australian Tax Office [2000] FMCA 6 Date of hearing: Heard on the papers Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr M Felman Solicitor for the Respondents: Minter Ellison ORDERS VID 704 of 2012 BETWEEN: JO-ANNE FINCH Applicant AND: THE HEAT GROUP PTY LTD (ACN 092 431 430) First Respondent GILLIAN FRANKLIN Second Respondent PETER KADLECIK (and others named in the Schedule) Third Respondent JUDGE: JESSUP J DATE OF ORDER: 20 APRIL 2016 THE COURT ORDERS THAT: 1. The relief sought in para 7 of the respondents' Interlocutory Application filed on 28 November 2014 be refused. 2. The applicant pay 85% of the respondents' costs of their Interlocutory Application filed on 28 November 2014. 3. The applicant pay the respondents' costs incurred only in connection with the allegations made in the Further Amended Statement of Claim filed on 7 October 2014 (other than the allegation that the termination of the applicant's employment by the first respondent involved a contravention of a provision of the Disability Discrimination Act 1992 (Cth)), not including – (a) the costs sought in para 7 of the respondents' Interlocutory Application filed on 28 November 2014; and (b) the costs of that Interlocutory Application. 4. Save as provided in the previous orders, the parties' costs of the proceeding be reserved, to be dealt with, if and when necessary, by the Federal Circuit Court of Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JESSUP J: 1 These reasons, and the orders which accompany them, deal with the following matters: (1) the relief sought in para 7 of the respondents' Interlocutory Application filed on 28 November 2014; (2) the costs of the respondents' Interlocutory Application filed on 28 November 2014; and (3) the costs so much of this proceeding as was dismissed by Order 4 made on 4 March 2016. THE RELIEF SOUGHT IN PARA 7 OF THE RESPONDENTS' INTERLOCUTORY APPLICATION FILED ON 28 NOVEMBER 2014 2 In para 7 of their Interlocutory Application filed on 28 November 2014, the respondents sought their costs thrown away in respect of the applicant's Amended Statement of Claim dated 19 April 2013 ("the ASC"). 3 On 3 May 2013, the respondents filed an Interlocutory Application seeking to have the ASC struck out. That application was never heard by the court. Rather, there followed a lengthy process of correspondence between the parties and delays which were due in part to the respondents' need to obtain inspection of certain records of the Victorian Civil and Administrative Tribunal, in part to the applicant's indisposition, in part to the applicant parting company with three separate legal representatives and in part to various disagreements about process, timing, etc. 4 On 25 July 2014, an order was made by consent that the applicant have leave to file an amended Statement of Claim by 29 August 2014. By the making of that consent order, the parties effectively settled the matters raised in the respondents' Interlocutory Application filed on 3 May 2013. On two subsequent occasions, the date by which the applicant was to file her new pleading was extended by consent, and that pleading, the Further Amended Statement of Claim ("the FASC") dealt with in my reasons of 4 March 2016, was filed on 7 October 2014. 5 The consent order of 25 July 2014 contained no reservation as to costs. In those circumstances, it is difficult to see upon what basis the respondents would now be entitled to their costs thrown away. The question whether the ASC was sufficient, or could have been defended in whole or in part, was never adjudicated. For all the court knows, had the applicant been confronted with an application for costs thrown away, she might well have chosen to defend the ASC. But because she secured the respondents' consent to the course that she ultimately followed, the question of costs was not addressed. 6 It was not until more than seven weeks after the filing of the FASC that the application now before the court was made. A party who consents to a particular course of conduct without securing from his or her opponent or from the court any reservation as to costs is not in a strong position later to claim that the circumstances were such as required the latter to pay costs. As it appears to me, the respondents are such a party in relation to the applicant's abandonment of the ASC. Their claim for costs thrown away must be rejected. THE COSTS OF THE RESPONDENTS' INTERLOCUTORY APPLICATION FILED ON 28 NOVEMBER 2014 7 There were three substantive claims made in the respondents' Interlocutory Application filed on 28 November 2014: that the FASC should be struck out, that the applicant should provide security for costs, and that the applicant should pay the respondents' costs thrown away in relation to the ASC. The respondents have succeeded substantially on the first two of these claims, and the applicant has succeeded on the third. On the conventional basis that costs ought to follow the event, the respondents should get some part (not necessarily two-thirds) of their costs of that application. The applicant has, however, advanced several arguments as to why costs should not follow the event in relevant respects. 8 The applicant says first that her claims under the Disability Discrimination Act 1992 (Cth) ("the DD Act") survived (in effect if not in form) the striking out of the FASC. I accept that, and will give due recognition to this limited measure of success which the applicant achieved. 9 The applicant's next point relates also to the fact that this proceeding was, in part, a human rights one. She relies on what was said by Driver FM in Low v Australian Tax Office [2000] FMCA 6: In my view the Court should be slow to award costs at an early stage of human rights proceedings so that applicants have a reasonable opportunity to get their case in order, to take advice and to assess their position. It would, in my view, be undesirable for costs to be awarded commonly at an early stage, as that would provide a deterrent to applicants taking action under what is remedial legislation in a jurisdiction where costs have historically not been an issue. There are two answers to this submission. First, in relation to the striking out of the FASC, it was not the applicant's human rights claims which provided the basis for the respondents' success. Indeed, it was, I would have to say, the applicant's own choice to load up what would have been a simple case under the DD Act with a raft of other allegations that was responsible for the respondents being obliged to incur the costs which are the subject of the present application. And secondly, it can, in the circumstances, scarcely be doubted that, by the time she served the FASC, the applicant had had "a reasonable opportunity to get [her] case in order, to take advice and to assess [her] position." 10 The applicant next points out that the respondents had not filed their Defences as at the time when the sufficiency of the FASC came up for consideration. That was also an argument which the applicant advanced on the Interlocutory Application itself. It was of no substance then and it is of no substance now. As I held on 4 March 2016, the very problem (or one of the problems) with the FASC was that it did not provide a reasonable foundation for the conventional requirement that the respondents should file their Defences. For the respondents' advisers to have incurred costs on answering the allegations in the FASC would, in my view, have been counterintuitive at best and arguably irresponsible. 11 Finally, the applicant argues that the corporate respondent is "a multi-million dollar company" with its own insurance arrangements and that the court should not set a precedent for the awarding of costs in a situation such as the present one, which would tend to "stifle" the claims of a litigant in a position such as her own. It will be clear from my reasons of 4 March 2016, however, I take the view that the court should not be reluctant to stifle the filing of pleadings of the kind, and in the form, of the FASC. If the only effect of those reasons is to set a precedent against the filing of such pleadings, the outcome will have been a salutary one. 12 In the written submissions which she has filed, the applicant has raised a number of other matters and issues, but none of them bears a legitimate relationship to the respondents' application for the costs of their Interlocutory Application filed on 28 November 2014. 13 In the submissions which the parties made on this question, I was provided with no assistance as to how some allowance might be made for the applicant's success in retaining (in substance if not in form) her claim under the DD Act; nor, for that matter, for the prospect that the respondents might succeed on some, but not all, of the claims for costs. Taking a high-level approach to the matter, I consider that justice would be done if an allowance of 10% were made for the respondents' failure to secure an order for their costs thrown away in relation to the ASC, and if an allowance of 5% were made in relation to the applicant's success in retaining her claims under the DD Act. 14 For the above reasons, I propose to order that the applicant pay 85% of the respondents' costs of their Interlocutory Application filed on 28 November 2014. THE COSTS SO MUCH OF THIS PROCEEDING AS WAS DISMISSED BY ORDER 4 MADE ON 4 MARCH 2016 15 The respondents' conventional entitlement to costs (as following the event) as a result of Order 4 made on 4 March 2016 is subject to the following qualifications: those costs should not include costs thrown away as a result of the ASC or the costs of the respondents' Interlocutory Application filed on 28 November 2014, those subjects having been dealt with specifically above; and the entitlement should be confined to costs incurred in connection with so much of the applicant's case as was dismissed by that order. 16 In relation to the second of those qualifications, for the assistance of the taxing officer I add that that I do not envisage that the respondents would achieve a proportional component of costs incurred in the litigation generally, such as, for example, the cost of preparing and filing a notice of address for service. 17 The applicant's submissions in opposition to this claim for costs by the respondents did not depart materially from the submissions which she made in opposition to their claim for the costs of their Interlocutory Application filed on 28 November 2014, and have been sufficiently dealt with above. 18 I shall make costs orders in favour of the respondents consistently with these reasons. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 18 April 2016 SCHEDULE OF PARTIES VID 704 of 2012 Respondents Fourth Respondent: ADAM WHITE Fifth Respondent: JOHN SIMCOCKS Sixth Respondent: DARREN SCOTTI