FEDERAL COURT OF AUSTRALIA

Sievwright v State of Victoria (No 2) [2013] FCA 1144

THE COURT ORDERS THAT:

1.     The applicant pay two-thirds of the respondent’s costs incurred in connection with its interlocutory application filed on 8 July 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 24 September 2013, I made orders for the striking out of a number of paragraphs in the applicant’s Further Amended Statement of Claim in this proceeding: Sievwright v State of Victoria [2013] FCA 964. I then required the parties to file and serve written submission as to the costs of the respondent’s interlocutory application, the disposition of which gave rise to the orders referred to. The parties have now made their submissions on costs, and the reasons which follow deal with that subject.

2    On behalf of the respondent, it is put that its interlocutory application was substantially successful, by reason of the extensive excisions which were made from the applicant’s pleading. On behalf of the applicant, it is put that the respondent’s application was for the whole of the Statement of Claim to be struck out, and this did not occur. There would be some respects in which the applicant might be entitled to costs, but a just result would be for the costs of the interlocutory application to be in the cause, or for there to be no order as to costs.

3    The state of a party’s pleading is the responsibility of the party. In the present case, the respondent gave the applicant, in correspondence, sufficient notice of the respects in which it would be alleged that her Further Amended Statement of Claim was deficient. So far as appears, the applicant conceded none of the points raised by the respondent, the inevitable result of which was that the respondent was obliged to make its interlocutory application. Although it was not wholly successful on that application, the extent of its success travelled far beyond anything which the applicant had been prepared to concede, and struck at the heart of the applicant’s allegations.

4    However, as I noted in my reasons of 24 September 2013, the respondent’s submissions did not adequately deal with the respects in which the applicant’s allegations under s 32 of the Disability Discrimination Act 1992 (Cth) were unsustainable, unintelligible or otherwise embarrassing. I see no reason why the respondent should have its costs of prosecuting its interlocutory application to the extent that it related to those allegations. Broadly, the applicant’s allegations fell into three compartments: s 5(1), s 5(2) and s 32. The respondent succeeded under the first two of these compartments, but not under the third.

5    In the circumstances, I consider that justice would be served if I were to order the applicant to pay two-thirds of the respondent’s costs of the interlocutory application.

Associate:

Dated:    8 November 2013