McBride v State of Victoria (No. 2)

[2003] FMCA 313

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McBRIDE v STATE OF VICTORIA (No.2) [2003] FMCA 313

COSTS – Discretion – Applicant successful in one of seven claim – 50 per cent appropriate award of costs.

Applicant: MARY EDEL McBRIDE

Respondent: STATE OF VICTORIA

File No: MZ 291 of 2000

Delivered on: 21 July 2003

Delivered at: Melbourne

Hearing Date: 21 July 2003

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Ms M Richards

Solicitors for the Applicant: McKean & Park

Counsel for the Respondent: Mr L. Maher

Solicitors for the Respondent: CORE The Public Correctional Enterprise

ORDERS

1. The respondent pay 50 per cent of the applicant's costs including reserved costs upon the Federal Court Scale up to and including 4 December 2000 and thereafter in accordance with Schedule 1 of the Federal Magistrates Court Scale, with the costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 291 of 2000

MARY EDEL McBRIDE

Applicant

And

STATE OF VICTORIA

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application I have delivered a judgment in the matter on 10 July 2003.  The judgment provided for an order that the respondent pay to the applicant damages in the sum of $5000.  The matter was adjourned to give the parties an opportunity to consider the reasons for judgment and to make further submissions in relation to the orders that I should make this day.

2. Counsel for the applicant has submitted that a costs order should be made in favour of her client and that there should be an order that the respondent pay the applicant's costs.  The application is based upon the proposition that the costs should follow the event, the event being a judgment in favour of the applicant.

3. That application is opposed by counsel for the respondent who has submitted that the court, in considering what may constitute the event, should have regard in the present case to the decision and the basis for the decision which ultimately decided in favour of the applicant in relation to one of seven substantive and discrete episodes of complaint.

4. It is submitted on behalf of the respondent that in the circumstances a more appropriate order would be that the applicant pay six-sevenths of the respondent's costs, with the respondent to pay one-seventh of the applicant's costs.  It was submitted that the application was lengthy and complex and there had been extensive discovery of prison roster records and significant costs incurred by the respondent attributable to what is described in written submissions as being preparation for the conduct of the case.  The submission on behalf of the respondent essentially relies upon the outcome and invites the court to consider that outcome and to make it appropriate costs order of the kind sought.

5. By way of response, counsel for the applicant has submitted that it is inappropriate to adopt that method of determining how costs should be ordered in this case and my attention has been drawn to the fact that for at least the first half of the first day jurisdictional issues were raised for and on behalf of the respondent and that for a considerable part of the court hearing, evidence was adduced on an issue of reasonable precautions being taken by the respondent to prevent discrimination.

6. In my view, it is clearly correct that a significant portion of the first day was taken by jurisdictional issues.  Those jurisdictional issues raised questions as to whether or not this court was competent to deal with the matter and ultimately the matter proceeded.  As I indicated in my judgment, the jurisdictional issue raised initially in this matter alerted me to the prospect that there may be a more substantive jurisdictional issue, namely, whether the Commonwealth human rights legislation applies to the State of Victoria.  As indicated in my judgment, that matter was clarified by this court and by the Full Court of the Federal Court and ultimately by parliament enacting retrospective legislation so that I was then able to proceed to consider and deliver my judgment in this matter.  Nevertheless, the jurisdiction issues raised by the respondent did occupy at least a considerable portion of the first day of the hearing and it is true that other issues were raised. 

7. In a matter of this kind, the costs order is a matter for the discretion of the court.  It is clear that in most cases costs follow the event.  I do not accept that in characterising what may be the event, one should look narrowly at the issue in human rights claims of there being discrete episodes in the one proceeding.

8. The nature of a human rights claim very often includes complaints that arise out of what are considered to be a series of events in the course of employment, more often than not in circumstances of this kind where an applicant is aggrieved by what is perceived by the applicant to be conduct in breach of the relevant human rights legislation.  Although analysed and presented as discrete events, there is an element of continuity, at least in the perception of the applicant, and it is somewhat artificial, in my view, to divide the issues exactly in the way proposed by the respondent, that is, to apportion costs on a six-seventh or one-seventh basis.

9. Nevertheless, it is also relevant in the discretion of the court to look at the substantial outcome, and I accept that ultimately the applicant, though successful, has not been successful in all aspects of the claim, in particular has not succeeded in establishing that her current condition is attributable to the alleged contraventions of the Disability Discrimination Act.

10. In the circumstances, taking into account the reasons for judgment and the fact that a considerable period of time, at least on the first day, was taken with jurisdiction issues and other issues in relation to the respondent's defence of this claim, it is my view that it would be fair and just in the circumstances to make an order that the respondent pay 50 per cent of the applicant's costs of and incidental to the application, including reserved costs, if any.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  21 July 2003