FEDERAL COURT OF AUSTRALIA

Pathmanathan v Australian Health Practitioner Regulation Agency [2019] FCA 1830

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs of this proceeding as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    On 5 September 2019, I delivered reasons dismissing an application for leave to appeal a decision of the Australian Human Rights Commission to terminate certain complaints made by the applicant against the respondent Agency pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”): Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460. In these reasons I adopt the same terminology used in my earlier decision. I ordered the parties to confer on the issue of costs and to file agreed orders or, in the absence of agreement, submissions limited to two pages in length.

2    The parties were unable to agree on what costs order the Court should make. The Agency sought an ordinary order of costs against the applicant. The applicant, without the leave of the Court, lodged an interlocutory application for “stay of execution of cost proceedings” (dated 18 June 2019, which I infer is an error given that I published my reasons in September). The application for a stay was rejected for filing as it was misconceived: it was filed before any order for costs had been made by the Court. The applicant subsequently filed an affidavit affirmed on 18 September 2019 and an affidavit affirmed on 18 October 2019 in support of her position that no costs should be awarded against her.

3    For the reasons that follow, I will order that the applicant pay the Agency’s costs of this proceeding.

The Discretion As To Costs

4    There were three considerations that favoured, on one view, a departure here from the ordinary rule that a successful party should be entitled to their costs as agreed or assessed. They were:

(1)    the fact that the applicant was not represented by a barrister or solicitor;

(2)    the nature of the proceedings, being a claim for leave to appeal a decision to terminate her complaints made under the Disability Act, the Racial Discrimination Act, the Age Discrimination Act and the Sex Discrimination Act against a body charged with regulatory responsibilities; and

(3)    the evidence, so far presented to the Court, concerning the serious consequences for the applicant which have followed from the Event identified in my earlier reasons at [8].

The Agency’s submissions

5    The Agency submitted as follows:

5.    This is a case where the Applicant proceeded in the Federal Court on notice of the risk attending her application, including the risk that costs may be awarded against her. The Respondent was careful, at all relevant times (in its correspondence to the Applicant, and in its written submissions to the Court), to ensure that:

a.    the legal framework relevant to the application, and

b.    the Respondent’s position in respect of the application was clear.

The Respondent was likewise clear that it should it be successful, it sought its costs [sic].

…

6.    The Court was not satisfied the Applicant had an arguable basis for alleging unlawful discrimination on the part of the Respondent. The Respondent has been successful on the question of leave. No persuasive basis for departing from the usual rule that costs follow the event is identifiable on the material before the Court.

7.    The Respondent has incurred legal costs and expenses in opposing the leave application. It presses its application for costs accordingly and seeks an order that “the Applicant pay the Respondent’s costs of, and incidental to, the proceeding, to be taxed in default of agreement”.

(Footnotes omitted.)

6    The Agency had attached to its written submissions two letters its solicitors had sent the applicant on 4 September 2018 and 16 July 2019. These had been marked “without prejudice save as to costs”. Both letters expressed in some detail the Agency’s reasons for contending that leave would be denied. The second letter expressly stated that the Agency would seek an order for costs as it had already incurred significant legal expenses. It offered the applicant an opportunity to withdraw with no order as to costs. It then said:

Our clients make this Offer in accordance with the principles stated in Calderbank v Calderbank [1975] 3 All ER 333 and Cutts v Head [1984] Ch 290. These principles apply in circumstances where one party makes a genuine offer of settlement to another party in an attempt to resolve a dispute. If the offer is rejected, and the matter proceeds to judgment, the party who rejected the offer can be ordered to pay the other party’s costs, if it can be shown that it was unreasonable for that party to reject the offer. Our clients consider the Offer outlined above to be reasonable, in circumstances where there are significant jurisdictional hurdles you must overcome and you have not filed any submissions or evidence to date which address these hurdles. If you choose to reject the Offer, our clients intend to rely on the Calderbank principles in seeking an order that you pay our clients’ costs associated with your applications for leave and an extension of time. This letter will be relied upon in support of such an application.

Whilst the foregoing invoked the principle derived from Calderbank v Calderbank [1976] Fam 93, the Agency’s written submissions before me did not appear to rely on that authority.

The applicant’s submissions

7    Neither of the applicant’s affidavits set out any evidence concerning her current financial position. Inferentially, she is not impoverished. She lives in Boston. She affirmed her first affidavit in Oxford, England. She affirmed her second affidavit in Los Altos, United States. She flew to Melbourne to represent herself. Instead of making germane submissions as to the question of costs, the applicant in her affidavits maintained a series of complaints against the Agency.

8    In her first affidavit, the applicant stated (amongst other things):

As evident in the email from a Professor of cardiology on 5 September 2019 and the related ABC Lateline programme aired on 3 September 2019, it is reasonable to form the belief the Respondent does have a predilection in their processes in favour of putting particularly those perceived to be foreign practitioners out of business through the process of sham regulatory investigations.

The applicant then asserted that she had been forced “out of business, and into forced retirement” because of the “Respondent’s practice and processes or lack thereof”. It was therefore “unreasonable” to award costs against her.

9    In her second affidavit, the applicant stated (amongst other things):

The Respondent solicited, invented information, made misleading recommendations to the Medical Board and published false findings as to my conduct, performance and health as a Specialist Anaesthesiologist.

a.    The Respondent intended to cause injury through their recommendations to the Board … as per the Chairman of the Board’s letter on 27 May 2016, whereby the conditions/restrictions remained whilst they “waited to seek confirmation that you (I) had not developed a health impairment”;

b.    The Respondent had sufficient expertise and experience to afford procedural fairness and prevent a wilful and harmful “error”, “mistake” and “ill-judgement”. If justice were to prevail the Respondent’s conduct it is more probably a finding of malfeasance in public office would be made [sic].

The applicant then asserted she had been “denied employment and other opportunities to be able to even pay for cost of living let alone pay costs” and that she had “paid significant legal and medical costs as a result of the Respondent’s ‘deals’, sham investigations and publications”. She also asserted that the “Respondent is a well-resourced government agency capable of avoiding and rectifying any harm caused”.

10    As to the first affidavit, I know nothing about the email of 5 September 2019 or the ABC programme which was said to have been aired in the same month. As to the second affidavit, as best as I can discern, the applicant is seeking to agitate grievances she has with the Agency either to persuade me to depart from findings made in my earlier reasons or to decline making an award of costs in the Agency’s favour.

11    Suffice to say, it has simply not been established that the conduct of the Agency forced the applicant out of business. Rather, my finding, at [27] of my earlier reasons, was that I had seen no evidence “that the Agency took steps in relation to the applicant because of her age, gender, or ethnicity or because of any disability she might have had (none were really suggested). She was not discriminated against for those reasons.”

12    Nothing in the affidavits has displaced that finding. Nor was it appropriate, in the context where I gave leave for the parties to file submissions on the issue of costs, for the applicant to seek to contradict the findings I had made in my reasons.

Supplementary submissions

13    I note that I gave the parties a final opportunity to file submissions as to costs given that the applicant had filed two affidavits after the Agency’s submissions had been filed. The Agency’s supplementary submissions relevantly stated:

The Applicant’s essential argument appears to be that costs should not follow the event because the Respondent has wronged her and the Respondent is well-funded.

For the record, and by way of response, the Respondent denies the Applicant’s allegations of wrong-doing.

14    The Agency further sought to rely on s 46PSA of the AHRC Act which provides that in proceedings that have been instituted under s 46PO against a respondent to a terminated complaint, a Court may have regard to a rejection of an offer to settle in deciding whether to award costs.

15    The applicant did not file any further submissions.

Disposition

16    In Refaat v Barry (No 2) [2015] VSCA 268, Warren CJ, Ashley and Tate JJA considered the principles applicable to an award of costs against a self-represented applicant. Their Honours said at [14]-[15]:

The question then arises whether there are any special circumstances relevant to the exercise of the Court’s discretion as to costs. One such matter is Dr Refaat’s lack of legal representation on the appeal. While this is not a matter capable of exempting him from liability for costs or from his overarching obligations under the Civil Procedure Act, it remains relevant in considering how he conducted his case. In that regard, his lack of representation provides some explanation of his pursuit on the appeal of remedies to which only Simplex could be entitled. It would also have made it more difficult for him to prepare clear submissions. Thus, while Mr Barry may well have incurred additional costs because of the way Dr Refaat conducted his appeal, some latitude may be afforded to Dr Refaat as a self-represented litigant.

Such latitude is not, however, without its limits. In circumstances where Dr Refaat has pressed and sought to re-agitate so many trivial arguments on the appeal, in addition to those of greater substance, it is appropriate given his very limited success that he pay a proportion of Mr Barry’s costs of the appeal. Many of Dr Refaat’s appeal grounds lacked a proper basis, occupied disproportionate time, and did not go to the real issues in dispute between the parties. To limit his liability to the $15,000 already paid as security would be to ignore the Court’s obligation to hold parties to account for their conduct of litigation. Just as Mr Barry could not accrue exorbitant costs in the expectation Dr Refaat would have to pay them, Dr Refaat could not cause Mr Barry to accrue such costs in the expectation his own liability would be limited.

In that case, the Court ordered that Dr Refaat pay 60% of the respondent’s costs.

17    In my view, in the particular circumstances of this case, the Agency is entitled to an ordinary award of costs in its favour. That is because:

(1)    the applicant’s case lacked sufficient merit to justify a grant of leave;

(2)    there was no evidence before me of financial distress, other than the applicant’s general assertion that she had been forced out of her profession. I have no reason to doubt the truth of that assertion, but it does not follow from that fact that she is penurious and cannot pay for living costs “let alone pay costs”. She is, for example, capable of undertaking international travel; and

(3)    the flaws in the applicant’s case were brought to her attention on two prior occasions. She was expressly warned that the Agency would seek its costs.

18    I infer that awarding costs against the applicant will distress her. That is most regrettable. But bringing a suit in person is a serious matter and ordinarily cannot be pursued without the risk of an award of costs. The Agency is a public body that has incurred costs in defending itself against a series of allegations which have not been made out. In the circumstances of this case it is entitled to its costs.

Associate:

Dated:    8 November 2019