Court costs quadruple price of discrimination

Cases

Court costs quadruple price of discrimination

An employee of Merck Sharpe & Dohme who was awarded $10,000 in damages after successfully claiming the company discriminated against her when she returned from maternity leave has now won a further $31,500 in court costs.

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12/03

 

An employee of Merck Sharpe & Dohme who was awarded $10,000 in damages after successfully claiming the company discriminated against her when she returned from maternity leave has now won a further $31,500 in court costs.

The company argued that the Federal Magistrates Court should reduce any order of costs to take into account the fact that the employee’s case had been only partially successful. In the initial case Federal Magistrate Driver had disagreed with her claim that she had been constructively dismissed. Had she succeeded on this point she would have obtained substantial damages for economic loss.

Costs

In considering costs, Federal Magistrate Driver said that while she had failed to obtain the financial outcome that she probably anticipated, this reason alone did not call for a reduced order as to costs.

“It needs to be considered in the context of discussions between the parties and any offers between the parties during the course of the litigation.”

He said there had been a number of offers made between the parties, both formal and informal. The best offer made by Merck was $30,000 including costs. The employee, on the other hand, was willing to settle the proceedings for $65,000 plus $30,000 in costs.

Federal Magistrate Driver noted that it was public policy that where a party does not do as well as an offer made to the party during the course of the litigation, the courts commonly either denied that party costs or made a costs order against the party. However, he said, in this case the employee’s decision to pursue her claim through to a final hearing was neither improper or unrealistic. “The claim of constructive dismissal was always reasonably arguable although ultimately unsuccessful.”

He said that applying the Federal Magistrates event-based scale produced a costs outcome of $29,103 which with disbursements totalled $31,000. Federal Magistrate Driver said that on that basis, the employee had achieved an outcome better than Merck’s best offer.

“There should be no reduction in the award of costs made, neither should there be any increase in the award of costs made to the [employee], bearing in mind that she has done less well than her best offer.”

He went on to add $500 to cover the costs of the costs hearing making a final outcome of $31,500.

Finally, the Federal Magistrate agreed to extend time for the filing of any appeal against his decisions, bearing in mind the time taken to resolve the issue of costs. He gave the company 21 days from the day of the costs judgement.

See: Rispoli v Merck Sharpe & Dohme & Ors (No.2) [2003] FMCA 516 (12 November, 2003).

 

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