Balinda v Australian Health Practitioner Regulation Agency

1. Section 46PSA of the AHRC Act deals with the issue of costs in proceedings brought under s 46PO of the AHRC Act.
2. At the time of the Originating Application, s 46PSA of the AHRC Act (Previous Costs Provision) provided as follows:

46PSA Costs - court may have regard to an offer to settle

If:

(a) proceedings have been instituted under section 46PO against a respondent to a terminated complaint; and

(b) an applicant or respondent has made, or makes, an offer to settle the matter the subject of the complaint; and

(c) the offer was or is rejected;

the court, or a judge of the court, in deciding whether to award costs in the proceedings, may have regard to the offer.

Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under section 46PO - see section 43 of the Federal Court of Australia Act 1976.

Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under section 46PO - see section 214 of the Federal Circuit and Family Court of Australia Act 2021.

1. Effective as of 2 October 2024, s 46PSA of the AHRC Act was amended by the Australian Human Rights Commission Amendment (Costs Protection) Act 2024 (Cth) (ARHC Amendment Act) in relation to costs for human rights matters being bought under s 46PO of the AHRC Act and now provides as follows:

(1) This section applies to proceedings (including an appeal) in a court that relate to an application made by a person (the applicant ) under section 46PO in respect of one or more respondents to a terminated complaint.

...

When applicant liable for costs

(5) Subject to subsection (6), the applicant must not be ordered by the court to pay costs incurred by another party to the proceedings.

(6) The applicant may be ordered to pay the costs if:

(a) the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the applicant's unreasonable act or omission caused the other party to incur the costs; or

(c) all of the following apply:

(i) the other party is a respondent who was successful in the proceedings;

(ii) the respondent does not have a significant power advantage over the applicant;

(iii) the respondent does not have significant financial or other resources relative to the applicant.

1. As correctly submitted by the respondents pursuant to s 7(2) of the AHRC Amendment Act, s 46PSA of the AHRC Act, as currently in force, does not apply retrospectively. Section 7(2) of the AHRC Amendment Act provides as follows:

Despite the repeal and substitution of section 46PSA of the Australian Human Rights Commission Act 1986 made by this Schedule, that section continues to apply, in relation to any application made under subsection 46PO(1) of that Act before the commencement of this item, as if that repeal and substitution had not been made.

1. Accordingly, s 46PSA of AHRC Act, as currently in force, will not apply to the proceedings currently before the Court as the Originating Application was filed on 30 November 2022.

1. The Court has broad discretionary powers to award costs under s 214 of the FCFCOA Act.
2. As was also correctly identified by the respondents in their submissions, consequent to the amendment made to s 46PSA of the AHRC Act, s 214(1)(b) of the FCFCOA Act precludes ss 214(2) and 214(3) of that Act from applying to applications made under Div 2 Part B of the AHRC Act. However, those provisions also do not apply retrospectively: s 7(3) of sch 1 of the AHRC Amendment Act. As such, s 214(1)(b) of the FCFCOA Act will not apply as a result of the Originating Application preceding the amendments being made.
3. Sections 214(2) and (3) of the FCFCOA Act provide the following:

(2) The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.

1. The Court therefore has an unfettered discretion to award costs, subject to the rules of court, and any modification of that jurisdiction by particular legislation: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129 (Gehlert) at [24] per Mortimer CJ, Colvin and Dowling JJ.
2. Rule 22.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) (as in force at the time of the hearing of the Cost Application) provided that:

Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:

(a) costs in accordance with Schedule 2; and

(b) disbursements properly incurred.

...

1. At paragraphs [41] - [42] of Gehlert, Mortimer CJ, Colvin and Dowling JJ considered r 22.09 of the GFL Rules observing that:

By providing that the rule operates unless the Court "otherwise orders", r 22.09 is recognising that the assessment of costs by reference to Sch 2 and the disbursements properly incurred is to be undertaken subject to the terms of any different orders as to costs. So, as it has been mentioned, those orders may set the amount of costs. They may cap the amount of costs that may be recovered. In making those orders, the Court acts according to the justice of an individual case, and exercises a broad discretion about the fair and just amount of costs that may be recovered by a party who has been determined to be entitled costs, depending on the facts before the Court.

Otherwise, r 22.09 splits a party's entitlement into two categories - "costs" linked to Sch 2, and "disbursements".

1. Accordingly, unless the Court otherwise orders, costs are to be calculated by reference to the scale set out in sch 2 of the GFL Rules (Scale). Part 1 of the Scale applies to general federal law proceedings and is therefore the applicable Part in these proceedings.

1. The respondents seek costs according to the Scale of $24,555.62 in relation to the Originating Application calculated as follows:

Initiating or opposing an application up to the completion of the first court date

$2,086.30 (which reflects the actual fees incurred, less than at Scale)

$243.50 (which reflects the actual fees incurred, less than at Scale)

Final hearing costs for attendance of solicitor at hearing to take judgment and explain orders

Advocacy loading (for final hearing, half day hearing)

Disbursements - counsel fees (appearing at hearing)

$800.00 (which reflects the actual disbursement incurred, less than at Scale)

1. The respondents also seek costs of $11,165.84 in relation to the Costs Application calculated as follows:

Initiating or opposing an application up to the completion of the first court date

1,821.70 (which reflects the actual fees incurred, less than at Scale)

$156.30 (which reflects the actual fees incurred, less than at Scale)

Final hearing costs for attendance of solicitor at hearing to take judgment and explain orders

Disbursements - counsel fees (appearing at hearing)

$681.82 (which reflects the actual fees incurred, less than at Scale)

$681.82 (which reflects the actual fees incurred, less than at Scale)

1. The respondents submit that the Court should order that Mr Balinda pay the respondent's costs for the following reasons:

(a) Mr Balinda's complaint was about language proficiency, which is not a protected attribute under the RDA (or any other anti-discrimination legislation);

(b) when terminating Mr Balinda's complaint under s 46PH(1)(c) of the AHRC Act, the Delegate of the President of the AHRC provided a detailed explanation as to why the complaint was misconceived;

(c) the English Language Skills Registration Standard (ELS Standard) has been developed pursuant to the Health Practitioner Regulation National Law (National Law) and approved by the Ministerial Council. Its requirements are clear: the only pathway open to Mr Balinda to demonstrate his English proficiency was to sit an approved English language test;

(d) consistently with that reality, the respondents made clear to Mr Balinda that he was required to sit an approved English language test and offered to pay Mr Balinda's costs associated with doing so (which Mr Balinda declined);

(e) Mr Balinda has never applied to be registered as a paramedic in Australia and has never attempted to provide his English language proficiency in accordance with the ELS Standard; and

(f) the arguments raised by Mr Balinda in support of the Originating Application were irrelevant to the issues before the Court or without merit.

1. The respondents did not contend that there are any matters under the Previous Costs Provision that the Court ought have regard to.

1. Insofar as is relevant to the matter currently before the Court, in the Submissions, Mr Balinda submits that the respondents ought bear their own costs as they are better able to do so. Otherwise, the Submissions are not relevant to the issue currently before the Court and seek to reagitate matters in the Originating Application or are directed to matters not sought by the respondents (such as indemnity costs).
2. In the Further Submissions, Mr Balinda contends that the respondents "disguise the exact narrations and particulars" of the costs incurred and that there is an "absence of transparency required showing the exact work and who did a specific role."
3. Mr Balinda submits that in these circumstances, the costs ought be subject to further scrutiny and that the respondents ought meet their own costs.
4. In the Further Submissions, Mr Balinda submits that the cover sheet to Annexures JC-2 and JC-3 of the Chen Affidavit incorrectly identify the case number of this matter as MLG2612/2022. Mr Balinda submits that this is "utterly erroneous and the Court should reject it outright."

1. The usual course is that costs follow the event, meaning that a successful party is generally entitled to an award of costs in their favour. As submitted by the respondents, prior to the current provisions of the s 46PSA of the AHRC Act coming in to force, the usual outcome where leave was refused under s 46PO(3A)(a) of the AHRC Act was for the applicant to pay the respondent's costs: see Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782; Trotta v Northern Health [2021] FCA 668; Chircop v Technical and Further Education Commission [2022] FCA 1015; Gupta v State of South Australia [2022] FCA 1598; Makowski v Legal Profession Admission Board [2023] FCA 666; Rawson v South Melbourne Metropolitan Health Service [2024] FCA 769.
2. I see no reason why in the present circumstances costs should not follow the event.
3. In Balinda No 1, I found none of Mr Balinda's claims were reasonably arguable. Language and English language proficiency are not attributes protected by the RDA, Mr Balinda has never applied to be registered as a paramedic in Australia, there was no evidence that Mr Balinda did not and could not meet the ELS Standard and Mr Balinda refused to sit the ELS Standard test despite the respondents offering to pay the costs of him doing so. Further, the reasons of the AHRC for terminating Mr Balinda's complaint were comprehensive and thorough and made it clear to him that his claim was not reasonably arguable.
4. That the respondents are better able to bear costs than Mr Balinda does not provide a sufficient basis for the usual course that costs follow the event to be departed from.
5. As to Mr Balinda's submissions based on the redacted invoices annexed to the Chen Affidavit and that "the exact work and who did a specific role' is therefore not transparent, in circumstances where costs are sought in accordance with the Scale (or below), this is irrelevant.
6. Finally, as correctly submitted by Mr Balinda, the cover sheet to Annexures JC-2 and JC-3 of the Chen Affidavit incorrectly identifies the matter number for these proceedings. Indeed, this error is also reflected in the cover sheet for JC-1. However, I do not consider this error to be of any significance. The Chen Affidavit was filed in these proceeding. The invoices annexed to JC-1 and JC-3 are all clearly invoices issued to the respondents in relation to this matter. JC-2 contains correspondence between Mr Balinda and Minter Ellison regarding the provision to Mr Balinda by courier of a hard copy of the list of authorities and the hearing bundle to be relied upon by the parties at hearing due to Mr Balinda's concerns about accessing the material electronically. Mr Balinda does not dispute that this correspondence occurred or is accurate, that the Chen Affidavit incorrectly asserts that hard copy documents were provided to him at his request or that he received them. Further, should it be contended that the annexures to the Chen Affidavit did not comply with r 15.15(5)(a) of the GFL Rules (as in force at that time), in light of the above matters, should it be necessary, pursuant to r 1.07(1) of the GFL Rules (and if necessary, r 1.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (2025 Rules)), I dispense with compliance with the GFL Rules in relation to the Chen Affidavit.

1. For the reasons set out above, Mr Balinda must pay the respondents costs and disbursements in the sum of:

(a) $24,555.62 in respect of the Originating Application; and

(b) $11,165.84 in respect of the Costs Application.

1. Pursuant to r 24.02 of the 2025 Rules, if no time for compliance with an order is specified, the order must be complied with within 14 days of it being served on a person. Although Mr Balinda made no submissions seeking a period of longer than 14 days to comply with any costs order made against him, given the quantum of the order, I consider it appropriate to allow Mr Balinda 28 days within which to comply with the order.
2. Accordingly, I make the orders set out at the commencement of this judgment.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.