//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2019] FCA 1830
Federal Court of Australia
2019-11-08
Steward J
Original judgment source is linked above.
The applicant's submissions 7 Neither of the applicant's affidavits set out any evidence concerning her current financial position. Inferentially, she is not impoverished. She lives in Boston. She affirmed her first affidavit in Oxford, England. She affirmed her second affidavit in Los Altos, United States. She flew to Melbourne to represent herself. Instead of making germane submissions as to the question of costs, the applicant in her affidavits maintained a series of complaints against the Agency. 8 In her first affidavit, the applicant stated (amongst other things): As evident in the email from a Professor of cardiology on 5 September 2019 and the related ABC Lateline programme aired on 3 September 2019, it is reasonable to form the belief the Respondent does have a predilection in their processes in favour of putting particularly those perceived to be foreign practitioners out of business through the process of sham regulatory investigations. The applicant then asserted that she had been forced "out of business, and into forced retirement" because of the "Respondent's practice and processes or lack thereof". It was therefore "unreasonable" to award costs against her. 9 In her second affidavit, the applicant stated (amongst other things): The Respondent solicited, invented information, made misleading recommendations to the Medical Board and published false findings as to my conduct, performance and health as a Specialist Anaesthesiologist. a. The Respondent intended to cause injury through their recommendations to the Board … as per the Chairman of the Board's letter on 27 May 2016, whereby the conditions/restrictions remained whilst they "waited to seek confirmation that you (I) had not developed a health impairment"; b. The Respondent had sufficient expertise and experience to afford procedural fairness and prevent a wilful and harmful "error", "mistake" and "ill-judgement". If justice were to prevail the Respondent's conduct it is more probably a finding of malfeasance in public office would be made [sic]. The applicant then asserted she had been "denied employment and other opportunities to be able to even pay for cost of living let alone pay costs" and that she had "paid significant legal and medical costs as a result of the Respondent's 'deals', sham investigations and publications". She also asserted that the "Respondent is a well-resourced government agency capable of avoiding and rectifying any harm caused". 10 As to the first affidavit, I know nothing about the email of 5 September 2019 or the ABC programme which was said to have been aired in the same month. As to the second affidavit, as best as I can discern, the applicant is seeking to agitate grievances she has with the Agency either to persuade me to depart from findings made in my earlier reasons or to decline making an award of costs in the Agency's favour. 11 Suffice to say, it has simply not been established that the conduct of the Agency forced the applicant out of business. Rather, my finding, at [27] of my earlier reasons, was that I had seen no evidence "that the Agency took steps in relation to the applicant because of her age, gender, or ethnicity or because of any disability she might have had (none were really suggested). She was not discriminated against for those reasons." 12 Nothing in the affidavits has displaced that finding. Nor was it appropriate, in the context where I gave leave for the parties to file submissions on the issue of costs, for the applicant to seek to contradict the findings I had made in my reasons.
Supplementary submissions 13 I note that I gave the parties a final opportunity to file submissions as to costs given that the applicant had filed two affidavits after the Agency's submissions had been filed. The Agency's supplementary submissions relevantly stated: The Applicant's essential argument appears to be that costs should not follow the event because the Respondent has wronged her and the Respondent is well-funded. For the record, and by way of response, the Respondent denies the Applicant's allegations of wrong-doing. 14 The Agency further sought to rely on s 46PSA of the AHRC Act which provides that in proceedings that have been instituted under s 46PO against a respondent to a terminated complaint, a Court may have regard to a rejection of an offer to settle in deciding whether to award costs. 15 The applicant did not file any further submissions.
Disposition 16 In Refaat v Barry (No 2) [2015] VSCA 268, Warren CJ, Ashley and Tate JJA considered the principles applicable to an award of costs against a self-represented applicant. Their Honours said at [14]-[15]: The question then arises whether there are any special circumstances relevant to the exercise of the Court's discretion as to costs. One such matter is Dr Refaat's lack of legal representation on the appeal. While this is not a matter capable of exempting him from liability for costs or from his overarching obligations under the Civil Procedure Act, it remains relevant in considering how he conducted his case. In that regard, his lack of representation provides some explanation of his pursuit on the appeal of remedies to which only Simplex could be entitled. It would also have made it more difficult for him to prepare clear submissions. Thus, while Mr Barry may well have incurred additional costs because of the way Dr Refaat conducted his appeal, some latitude may be afforded to Dr Refaat as a self-represented litigant. Such latitude is not, however, without its limits. In circumstances where Dr Refaat has pressed and sought to re-agitate so many trivial arguments on the appeal, in addition to those of greater substance, it is appropriate given his very limited success that he pay a proportion of Mr Barry's costs of the appeal. Many of Dr Refaat's appeal grounds lacked a proper basis, occupied disproportionate time, and did not go to the real issues in dispute between the parties. To limit his liability to the $15,000 already paid as security would be to ignore the Court's obligation to hold parties to account for their conduct of litigation. Just as Mr Barry could not accrue exorbitant costs in the expectation Dr Refaat would have to pay them, Dr Refaat could not cause Mr Barry to accrue such costs in the expectation his own liability would be limited. In that case, the Court ordered that Dr Refaat pay 60% of the respondent's costs. 17 In my view, in the particular circumstances of this case, the Agency is entitled to an ordinary award of costs in its favour. That is because: (1) the applicant's case lacked sufficient merit to justify a grant of leave; (2) there was no evidence before me of financial distress, other than the applicant's general assertion that she had been forced out of her profession. I have no reason to doubt the truth of that assertion, but it does not follow from that fact that she is penurious and cannot pay for living costs "let alone pay costs". She is, for example, capable of undertaking international travel; and (3) the flaws in the applicant's case were brought to her attention on two prior occasions. She was expressly warned that the Agency would seek its costs. 18 I infer that awarding costs against the applicant will distress her. That is most regrettable. But bringing a suit in person is a serious matter and ordinarily cannot be pursued without the risk of an award of costs. The Agency is a public body that has incurred costs in defending itself against a series of allegations which have not been made out. In the circumstances of this case it is entitled to its costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.
Pathmanathan
Australian Health Practitioner Regulation Agency
STEWARD J: 1 On 5 September 2019, I delivered reasons dismissing an application for leave to appeal a decision of the Australian Human Rights Commission to terminate certain complaints made by the applicant against the respondent Agency pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the "AHRC Act"): Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460. In these reasons I adopt the same terminology used in my earlier decision. I ordered the parties to confer on the issue of costs and to file agreed orders or, in the absence of agreement, submissions limited to two pages in length. 2 The parties were unable to agree on what costs order the Court should make. The Agency sought an ordinary order of costs against the applicant. The applicant, without the leave of the Court, lodged an interlocutory application for "stay of execution of cost proceedings" (dated 18 June 2019, which I infer is an error given that I published my reasons in September). The application for a stay was rejected for filing as it was misconceived: it was filed before any order for costs had been made by the Court. The applicant subsequently filed an affidavit affirmed on 18 September 2019 and an affidavit affirmed on 18 October 2019 in support of her position that no costs should be awarded against her. 3 For the reasons that follow, I will order that the applicant pay the Agency's costs of this proceeding.
[2015] VSCA 268