Rindeklev v Comcare

1. The applicant pay 60% of the respondent's costs of and incidental to the proceedings.
2. The costs pursuant to order 1 be quantified on a lump sum basis by a registrar acting as a referee after receiving written submission of no more than three pages and any affidavit from each of the parties in accordance with a timetable to be set by the registrar.
3. Subject to further order, the question whether the registrar's report as referee should be adopted will be considered by the case managing judge on the papers that were before the registrar acting as referee. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Ms Rindeklev made a complaint to the Human Rights Commission against Comcare. The complaint was terminated by a delegate of the President of the Commission on the basis that it was misconceived or lacked substance or both. Ms Rindeklev applied for leave to advance a claim of unlawful discrimination in this Court. Leave was refused: Rindeklev v Comcare [2024] FCA 804. 2 Comcare now seeks an order that Ms Rindeklev pay the costs of the leave application, with such costs to be assessed on a lump sum basis by a registrar. 3 At the hearing of the leave application, Comcare advanced two main contentions as to why leave should be refused, namely (a) the conduct complained of could not satisfy the definition of sexual harassment; and (b) Comcare was protected from suit by reason of the doctrine of witness immunity. I accepted the first contention, but expressed no concluded view as to the second contention. 4 The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). Generally, the Court's discretion as to costs is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]; and Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25]. Special circumstances may warrant departure from the 'general rule': see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53 at [6]; and IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22 at [8]. 5 Comcare says that it was the successful party and there are no special circumstances. It says that the appropriate exercise of the Court's discretion as to costs is to award costs in its favour. 6 Ms Rindeklev says that there should be no order as to costs. Alternatively, she says that any costs order should be stayed pending the hearing of an appeal. She relies upon two sets of written submissions, one dated 25 July 2024 and the other dated 8 August 2024. Much of the latter set of submissions concerns reasons why she says that the decision on the leave application was unfair and in error, being matters she proposes to raise on appeal. 7 The fact that Ms Rindeklev seeks to advance an appeal is not a special circumstance justifying a departure from the general approach. I am concerned with the appropriate costs order having regard to the conduct of the proceedings on the leave application and the decision made to refuse leave to bring proceedings in this Court. 8 The following matters of possible relevance to the exercise of the costs discretion are advanced by Ms Rindeklev: (1) there should have been a conciliation of her complaint; (2) the question of witness immunity was not raised before the Commission; (3) the question of witness immunity was not determined; (4) Comcare (allegedly) did not act in accordance with its responsibilities as a model litigant by litigating 'as if this was a [contested] worker's compensation claim' and mischaracterised and falsely represented the claim before the Commission; (5) the costs sought are for work undertaken by the firm of solicitors whose conduct was in question by her application; and (6) there should be a stay of any order because an appeal is on foot and it would help as a costs order would 'likely put me in hardship and I am in the process of applying for the disability pension'. 9 As to (1), conciliation was a matter for the Commission. Leave was required in order for Ms Rindeklev to bring her proposed application in this Court. It would be contrary to the gateway provisions in the relevant legislation if there was some form of requirement for a respondent to a leave application to ensure there was conciliation in the context of a leave application. In an appropriate case, this Court may refer a matter for mediation. One matter that the Court would consider is whether it is appropriate to do so having regard to the statutory scheme requiring claims of unlawful discrimination to be raised before the Commission. If, despite that scheme, mediation was ordered by this Court in proceedings where leave was sought, both parties would be required to participate in a genuine effort to resolve matters. However, the fact there has been no process of that kind in the course of the proceedings in this Court is not a matter that should bear upon the exercise of the costs discretion if leave is refused. 10 As to (2) and (3), it is the case that the issue of witness immunity was not raised before the Commission. However, on the leave application, Comcare was not limited to matters raised before the Commission. Had the claim been raised before the Commission, it would not have been able to authoritatively determine that matter. Indeed, having regard to the nature of its jurisdiction, even if a contention of that kind had been raised before the Commission, it would not have been a reason why the Commission would not undertake the required consideration of the complaint. Therefore, I do not consider the failure to raise the point before the Commission to be a reason why there should be no order as to costs on the leave application despite leave being refused. 11 Even so, the witness immunity point was of some complexity on which it could not be said that Comcare has been successful. If it had been the only contention as to why leave should be refused then it may well have not been a sufficient reason as to why leave should be refused. I would approach the assessment of costs on the basis that there should be separate provision for the costs of that issue and the appropriate order as to those costs is that there be no order as to costs. Consistently with the approach in relation to allocation of issues, taking a broad brush approach I would assess those costs as relating to 40% of Comcare's costs. 12 As to (4), I am not persuaded that there was any breach of Comcare's responsibilities as a model litigant in the manner in which it conducted its opposition to the application for leave to appeal. 13 As to (5), as explained in my principal reasons, the complaints that Ms Rindeklev has directed towards the solicitors involved were not matters that had any bearing on the nature of the discrimination case that she sought to advance. The fact that those matters have been raised by Ms Rindeklev is not a reason for making a costs order in her favour. Ms Rindeklev made clear that the claim that she sought to bring in this Court was against Comcare. 14 As to (6), the question of a stay is a separate matter to the costs order. The prospect of a stay was raised in submissions made by Ms Rindeklev only after Comcare had filed its submissions seeking costs. Comcare has not had an opportunity to provide a response. If Ms Rindeklev wishes to seek a stay of any costs order in these proceedings then she should bring an interlocutory application with an affidavit in support so that Comcare may have an opportunity to respond. It would be usual for those matters to be raised informally with Comcare's solicitors before bringing any such application in order to ascertain Comcare's attitude to the proposed stay. 15 In the above circumstances, I am of the view that there should be a costs order in favour of Comcare, but it should be an order as to 60% of its costs. 16 Comcare asks for the costs to be assessed on a lump sum basis in order to avoid the additional cost of a formal taxation. Given the confined nature of the hearing and the limited steps taken by way of preparation, such an approach is appropriate. I consider it appropriate for the quantum of costs to be the subject of report by a registrar acting as referee. I will make orders accordingly. Once the registrar's report is available, I will consider whether it is appropriate to invite submissions from the parties before considering whether to adopt the report and make orders informed by the referee report as to the amount of costs to be paid. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.