Zoltaszek v Downer EDI Engineering Pty Ltd

REASONS FOR JUDGMENT (Revised from Transcript) 1 On 1 July 2009 the Appellant, Mr Zoltaszek, filed an application in the Federal Magistrates Court pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). He alleged discrimination and harassment under the Disability Discrimination Act 1992 (Cth). 2 That application was dismissed and reasons for doing so were delivered on 3 December 2010: Zoltaszek v Downer EDI Engineering Pty Limited (No 2) [2010] FMCA 938. The Federal Magistrate subsequently considered submissions in respect to costs and in February 2011 ordered that costs on an indemnity basis were to be paid as from the date of an offer of compromise made in that proceeding on 26 August 2010: Zoltaszek v Downer EDI Engineering Pty Ltd (No 3) [2011] FMCA 141. 3 Mr Zoltaszek subsequently appealed to this Court from the December 2010 judgment. That appeal was dismissed on 1 July 2011: Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744. Again, the parties by consent wished to separately address the question of costs of the appeal to this Court. 4 In the absence of any reason to the contrary, the normal position, pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) is that costs should follow the event: see Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496 at 509 per Beaumont J; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 to 235 per Black CJ and French J. There must be a reason to depart from this position if costs are to be paid on an indemnity basis. 5 The legal representative on behalf of the Respondent does not rely upon any offer of compromise or any "presumptive entitlement" to indemnity costs so as to invoke O 23 r 11 of the Federal Court Rules: see Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 6) [2010] FCA 381 per Logan J; IFTC Broking Services Limited v Federal Commissioner of Taxation [2010] FCAFC 31 at [9], 268 ALR 1 at 4 per Stone, Edmonds, and Jagot JJ. 6 There is no reason why the ordinary rule should therefore not apply.