Cooke v Plauen Holdings Pty Limited [2001] FMCA 91

Shiels v James [2000] FMCA 2

(1) The respondent is to pay the applicant's costs and disbursements of the application, fixed at $12,000.

(2) Time for appeal for either party from the principal judgment, delivered on 5 July 2002, be extended for 21 days from 30 July 2002, pursuant to Order 52, rule 15(1)(a)(iii) of the Federal Court Rules.

1. I have before me for ex tempore judgment an application for costs by the applicant, Sandra Escobar, in the principal proceedings which were dealt with by me by judgment delivered on 5 July 2002. The applicant is exercising liberty to apply granted by me on that day, in respect of costs. The application for costs is put on the basis that costs should follow the event and that the applicant has been wholly successful in the proceedings. An order for costs is resisted by the respondent on the grounds that the outcome for the applicant was a modest order for damages in the sum of $7,325.73 plus an apology, whereas the application pursued by the applicant would, if granted in full, have produced a damages award in the order of $60,000.

2. Mr Moore, for the respondent, tendered a series of documents which formed exhibit R1 for the purposes of the costs application, which detailed a history of negotiations between the parties concerning the principal application. It is apparent from those documents that an initial offer was made on 8 June 2001 by the respondent to settle the proceedings for $3,000.

3. Subsequently, at a conciliation conference, the applicant offered to settle the proceedings for $18,000 and that was subsequently reduced by letter dated 21 August 2001 to an offer in the sum of $15,000 from the applicant. Finally, on 28 February 2002 the respondent, through its solicitors, made a settlement offer of $5,000, with each party to bear their own costs. No offer was made by the respondents which could satisfy the conditions necessary to establish a Calderbank offer for the purposes of this costs application, noting that the applicant has achieved an outcome better than either of the offers made by the respondent. I also take into account that the applicant showed a willingness to settle for a relatively modest amount in the context of her principal application for relief.

4. The respondent also submitted that the proceedings were unduly lengthy, having regard to the nature of the claim, having occupied two and a half days of hearing time and bearing in mind that two affidavits put into evidence by the applicant from Messrs Scully and Brendish did not assist me in coming to my decision. The length of the hearing was a product of the amount of material put into evidence by both sides and the cross-examination on the evidence and I do not think that particular fault can be levelled at either party in terms of their conduct of the proceedings. The proceedings were listed for hearing over two days and ultimately took two and a half days, largely as a result of reasonably extensive cross-examination of the principal witnesses for both parties.

5. My general approach to the issue of costs in human rights proceedings where an applicant is successful is set out in my decision in Cooke v Plauen Holdings Pty Limited [2001] FMCA 91. In that case I expressed agreement with views expressed by Federal Magistrate Raphael in Shiels v James [2000] FMCA 2, in particular at paragraph 80 of his decision. I noted the general desirability of an award of costs in favour of a successful applicant in human rights proceedings so as to avoid an award of damages being swallowed up by the cost of litigation.

6. Clearly in this case, if no costs are awarded, the damages awarded to the applicant would be very likely to be taken up in payment of legal costs and the applicant would get no benefit from legal proceedings in which she was successful. While I accept that there is no absolute right to an order for costs in any proceedings before the Court, there is a general expectation that where an applicant is successful costs will follow the event. There are exceptions to that general principal but I am not satisfied that any exception has been raised in these proceedings that would persuade me not to make an order for costs. Therefore I will make an order for costs in favour of the applicant.

7. The next question is what form the order should take. Generally in human rights proceedings before this Court a simple costs order would lead to the application of the fixed event based costs scale in schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules"). The application of that scale in these proceedings would lead to an outcome of costs and disbursements in the order of $18,000, including today's costs hearing.

8. It seems to me that in the context of these proceedings that would be an excessive amount to award in favour of the applicant and I have decided instead to fix the amount of costs payable pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules. I have decided that I should make an award of costs and disbursements pursuant to that rule in the sum of $12,000, which is approximately two-thirds of the amount which the applicant would have received by a strict application of the costs schedule.

9. I am satisfied that that is a reasonable outcome in terms of the costs that were likely to have been incurred on behalf of the applicant and in terms of the nature and conduct of the proceedings which, while involving a significant body of evidence, dealt with what was ultimately a relatively straight forward issue.

10. I will also order, in response to an oral application by Mr Moore for the respondent, that the time for appeal from my principal judgment delivered on 5 July 2002 be extended for 21 days after today's date pursuant to Order 52 rule 15(1)(a)(iii) of the Federal Court Rules. In making that order I take into account that the best part of a month has passed since giving that judgment and in the ordinary course costs would have been dealt with at the time judgment was delivered on 5 July. I gave the parties time to consider the costs issue after having read my decision. In providing that additional time I should not disadvantage the parties in terms of their appeal rights.

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