El-Debel v Secretary, Department of Immigration and Border Protection

REASONS FOR JUDGMENT 1 This litigation has been substantially resolved by the actions of the parties. It has not been settled by agreement. Rather, as matters have turned out, the applicant no longer needs to press the claims for final relief which he made in his Originating Application. The applicant wishes to discontinue the whole of this proceeding but he wishes to do so upon the basis that the respondents should be ordered to pay a substantial part of his costs. The respondents consent to the discontinuance but argue that they should not have to pay any part of the applicant's costs. They seek an order that the applicant pay a substantial part of their costs. 2 By these Reasons for Judgment, I determine all questions of costs. I will grant to the applicant leave to discontinue as sought.

The Relevant Background Facts 3 The applicant, Mr El-Debel, is a senior Commonwealth Public Servant employed in the Department of Immigration and Border Protection. He says that between 30 and 45 Departmental employees report to him at any given time. 4 In October 2013, one of the applicant's subordinates alleged that, in early October 2013, the applicant had verbally abused her on two separate occasions. She complained that, on the second occasion, he had racially vilified her. 5 On 30 October 2013, a delegate of the first respondent suspended the applicant from his duties without pay for a period not exceeding 30 days. The reason given for the suspension was the alleged abuse of the applicant's subordinate who had, by then, formally complained about the matter. 6 On 8 November 2013, the applicant sought review of the first respondent's suspension decision made on 30 October 2013. The applicant's application for review was made by his solicitors on his behalf. That application contained detailed submissions as to why the applicant should never have been suspended. 7 On 22 November 2013, the reviewer upheld the first suspension decision which the first respondent's delegate had made on 30 October 2013. 8 On 29 November 2013, the first respondent, by the same delegate as had suspended the applicant in October 2013, again suspended the applicant without pay. 9 On 6 December 2013, the same delegate of the first respondent informed the applicant that she had decided to set aside her decision of 29 November 2013 and intended to make a fresh decision as to whether or not the applicant should be suspended from duty and, if so, whether that suspension should be with or without pay. In her letter of 6 December 2013, the delegate raised a number of additional allegations of misconduct against the applicant. These allegations were very serious and involved suggestions of sexual harassment. 10 On 12 December 2013, the applicant commenced the present proceeding. He joined the Secretary of the Department as the first respondent to this proceeding and the Commonwealth itself as the second respondent. In his Originating Application for Judicial Review, the applicant sought orders setting aside each of the suspension decisions made on 30 October 2013, 22 November 2013 and on 29 November 2013, on a number of grounds, including that he had been denied procedural fairness in relation to each of those decisions. He also challenged the threatened new process in relation to the additional allegations of misconduct raised in the delegate's letter of 6 December 2013. 11 In addition to seeking administrative law remedies, the applicant made a claim under the Fair Work Act 2009 (Cth). He claimed that the second respondent had taken adverse action against him because he proposed to exercise his workplace rights and had thereby contravened s 340(1)(a)(iii) of the Fair Work Act. 12 When the applicant's Originating Application was filed, it was allocated a return date of 20 December 2013. In fact, the matter did come before the Court on that day for the purpose of (amongst other things) addressing the Interlocutory Application which the applicant had included within his Originating Application. The interlocutory relief which the applicant sought was in the following terms: 1. An order in the nature of an interim injunction pursuant to s545(2)(a) of the Fair Work Act 2009 or s 23 of the Federal Court Act 1976 that the Second Respondent be restrained from making any decision to suspend the Applicant from duties with or without remuneration on the basis of any allegations of misconduct against the Applicant existing as at the date of this Application. 2. An order in the nature of an interim injunction pursuant to s 545(2)(a) of the Fair Work Act 2009 or s 23 of the Federal Court Act 1976 that the Second Respondent be restrained from investigating or relying on for any purpose the new allegations set out at items numbered 2, 3 and 4 of the letter to the Applicant from Ms Leo dated 6 December 2013. 3. An order in the nature of an interim injunction pursuant to s.23 of the Federal Court Act 1976 that the First Respondent himself or through his delegates be restrained from suspending the Applicant from his employment. 4. An order that this matter be listed for interlocutory hearing as soon as possible. 5. An order pursuant to Rule 1.39 that the time for service of this Application be abridged. 13 As a result of discussions between the parties and further decisions made by the respondents, the applicant no longer needs to press any of the relief which he claimed in his Originating Application. As I have already mentioned, he now wishes to discontinue this proceeding. The respondents consent to the whole of this proceeding being discontinued. However, as I have also already mentioned, the parties are at odds on the question of costs.