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[1999] ACTSC 124
Supreme Court of the ACT
1999-11-18
Miles CJ
Original judgment source is linked above.
1. The appellant and respondent respectively pay her and its own costs of the appeal.
2. On 1 October 1999 I gave judgment in this appeal, [1999] ACTSC 95. I concluded that, to the extent that the Discrimination Tribunal found that the respondent's unfavourable treatment of the appellant was not because the appellant had an attribute under s 7 of the Discrimination Act 1991, namely the occupation of sex worker, the appeal was allowed and the finding of the Tribunal set aside. However, the decision of the Tribunal to dismiss the appellant's complaint as unsubstantiated was confirmed and the appeal was dismissed.
3. In short, I allowed the appeal in part and dismissed it in part.
4. Counsel for the parties asked to be heard on costs and lodged written submissions.
5. In the circumstances, I think that the appropriate order is that the parties each bear their own costs. The respondent was correct in submitting that the appellant substantially lost the appeal and was successful only on one issue of law, namely the need for the Tribunal to apply a "but for" test for the purposes of deciding whether the respondent's unfavourable treatment of the appellant was "because of" the appellant's occupation of sex worker. On the other hand, it was a real issue and it was not the fault of the appellant or her advisers that an incorrect test had been applied by the Tribunal. Furthermore, although what was in issue in the proceedings was discrimination against the appellant herself and not discrimination against sex workers in general, or a group of sex workers representing sex workers in general, the case did exhibit some features of "public interest" litigation. The usual order as to costs in adversarial proceedings is not always appropriate in such litigation: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. The public interest element, however, is not so great that the respondent should be ordered to pay the appellant's costs.
6. I therefore order that the appellant and respondent respectively pay her and its own costs of the appeal.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.
Solicitor for the respondent: Deacons Graham & James
Judith Edgley
Federal Capital Press of Australia Pty Limited [1999] ACTSC 124
(1998) 193 CLR 72