No special costs rules for federal discrimination cases

Cases

No special costs rules for federal discrimination cases

An applicant who lost a discrimination case has also lost a claim in the Federal Court that she be exempted from paying costs.

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An applicant who lost a discrimination case has also lost a claim in the Federal Court that she be exempted from paying costs. 

The Federal Court rejected her argument that cases involving a review of earlier decisions in the Human Rights and Equal Opportunity Commission should be given special consideration, and said the usual rule of costs going with the result applied.

The applicant contended that the court should make no order as to costs, despite the outcome of the proceeding, for the following reasons:

  • Discrimination matters are ordinarily no cost matters as evidenced by the practice of state tribunals and because the Human Rights & Equal Opportunity Commission does not have power to order costs.
  • The court was anxious not to discourage litigants from bringing claims which may well have merit because of the fear of an adverse order in the event that the applicant is unsuccessful.
  • The nature and intent of anti-discrimination legislation would be thwarted if citizens were unreasonably inhibited from prosecuting bona fide claims, even if they are ultimately unsuccessful.
  • Discrimination matters involve questions of public interest. In support of this point, the applicant referred to the fact that she was funded by the Commonwealth Attorney-General's Department in bringing the proceedings in this court.

The presiding judge, Justice Drummond, followed a decision of the Full Court of the Federal Court in making his ruling. That decision considered the discretionary power to award costs in the context of what was said to be public interest litigation in Ruddock v Vadarlis. Of the decision of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72, Black CJ and French J said there, at [21]:

'But the general conclusion of the [High] court is consistent with the observation of Kirby J … in South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 at 412 that nothing in Oshlack requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new costs regime is to apply exempting that individual or body from the conventional rule.'

See: Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 1060 - Drummond J.

 
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