FEDERAL COURT OF AUSTRALIA

Pathmanathan v Healthscope Operations Pty Ltd (No 2) [2020] FCA 503

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs of this proceeding, including the costs of the applicant’s interlocutory application filed on 7 October 2018 and the respondent’s interlocutory application filed on 23 August 2019, 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 6 February 2020, I delivered reasons for judgment in this proceeding which was commenced pursuant to s. 46PO of the Australian Human Rights Commission Act 1986 (Cth.): Pathmanathan v. Healthscope Operations Pty Ltd [2020] FCA 65. I held that the applicant had no reasonable prospect of successfully prosecuting her proceeding against the respondent. In the result, I refused the applicant’s application for summary judgment and granted the respondent’s application for summary dismissal. 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. In what follows, I have used the same terminology from my earlier reasons for judgment.

2    The parties were unable to agree on what costs order the Court should make. This was so despite the Court affording the parties an extended timetable. In that respect, upon the Doctor’s request and given the prevailing extraordinary circumstances arising from the continuing COVID-19 pandemic, the Court extended the deadline for filing twice. In written submissions filed on 27 March 2020, Healthscope sought an ordinary order of costs against the Doctor on the basis that it had been “wholly successful”. In written submissions filed on 6 April 2020, the Doctor demurred. For the reasons that follow, I will order that the Doctor pay Healthscope’s costs of this proceeding.

Healthscope’s submissions

3    Healthscope submitted as follows:

This Court has a broad discretion to award costs, provided that no other relevant Act prohibits the award of costs.

Nothing in the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) or the [Disability Discrimination Act 1992 (Cth) (DDA)] prohibits an award of costs, nor does the Federal Court Act 1976 (Cth) itself prohibit an award of costs in human rights proceedings.

The usual principle is that costs should ordinarily follow the event and that a successful litigant will receive costs in the absence of special circumstances which justify the making of some other order [citing Ruddock v. Vadarlis (No 2) (2001) 115 F.C.R. 229 at 234 [11]] … If the litigation had not been brought, the successful respondent would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party bears the liability for the costs of unsuccessful litigation [citing Oshlack v. Richmond River Council (1998) 193 C.L.R. 72 at 97 [67] per McHugh J. (with whom Brennan C.J. agreed)].

The usual principle recognises that the successful party will have incurred costs in prosecuting or defending the proceeding and is entitled to be compensated, and should not be departed from without good reason [citing Walker v. State of Victoria (No 2) [2011] FCA 417 at [5] per Tracey J. and Hampton v. BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 (S) at [3] per Edelman J.]. The Applicant’s self-representation is a factor that may provide some explanation of her pursuit of claims which had no reasonable prospect of succeeding, but it is not a matter capable of relieving her from liability for costs.

While the DDA is beneficial legislation, this does not mean the Court should apply any different approach as to costs. Given the absence of any specific provision regarding costs in the DDA, the usual principles are to apply and a wholly successful party should receive its costs unless good reason is shown to the contrary. Any suggestion that this Court’s jurisdiction in human rights matters should be considered a ‘no costs jurisdiction’ has been firmly rejected.

(Footnotes omitted.)

4    It sought an order in the following terms:

The Applicant pay the Respondent’s costs of this proceeding, including the costs of the Applicant’s interlocutory application filed on 7 October 2018 and the Respondent’s interlocutory application filed on 23 August 2019, as agreed or assessed.

The Doctor’s submissions

5    The preponderance of the Doctor’s submissions re-agitated her grievances against Healthscope. It is neither necessary nor appropriate to set them out in these reasons. As to the issue of costs, the Doctor did not dispute the principles governing the Court’s discretion to award costs as recorded in Healthscope’s reasons. Rather, the Doctor resisted Healthscope’s position by asserting that she is “unemployable” and has “no means to pay any costs” awarded against her. Relevantly, the Doctor submitted the following:

The Applicant, a Sri Lankan born person, has been systematically discriminated and driven out of Australia with no remedy despite seeking justice for six years. As a woman in her early 40s, she remains globally blackballed and unemployable.

She has not been able to pay any debts and as such is even unable to get financial assistance or credit, but for the charity of empathetic foreigners. The FICO scores [a type of credit score] available online.

a.    An unjust outcome for a successful Specialist Anaesthesiologist, whose only fallibility was to first, to work in Australia knowing the culture of misogyny and racism and second, to accept the legal advice of the corrupt professional indemnity, [MDA National Insurance], and their appointed lawyers. May karma may be served.

This human rights case was filed in 2018, with 5 adjournments, a change in justice, undue delays, declared conflict of interest and unjust findings against the Applicant.

The Applicant, a Specialist Anaesthesiologist forced into retirement, has no home, no job and no means to pay any costs whatever decision is made by his honour as a representative of the Australian legal system, culture and people.

(Errors in original.)

6    Despite leave being granted to the Doctor to file evidence in support of her written submissions, no evidence was furnished to support these claims of impecuniosity. In a related decision, Pathmanathan v. Australian Health Practitioner Regulation Agency [2019] FCA 1830, I observed that, inferentially, the Doctor is not impoverished. She is, for example, capable of undertaking international travel.

Disposition

7    The Doctor has at all times represented herself before me. She did not benefit from the assistance of a barrister. As Healthscope very properly conceded, this factor may provide some explanation for why the Doctor sought to prosecute a proceeding that had no reasonable prospect of success. This may, on one view, justify the Court affording the Doctor some latitude in exercising its discretion as to costs: see Refaat v. Barry (No 2) [2015] VSCA 268.

8    Notwithstanding the foregoing, I consider that Healthscope is entitled to an ordinary award of costs in its favour. That is because:

(1)    first, there is no provision which prohibits costs being awarded in proceedings initiated pursuant to s. 46PO of the AHRC Act. Indeed s. 46PSA of the AHRC Act expressly contemplates that a Court may award costs in such proceedings. Hence, the jurisdiction of the Court in respect of matters concerning alleged unlawful discrimination is not a “no costs” jurisdiction. Relevantly, in Fetherston v. Peninsula Health (2004) 137 F.C.R. 262, Heerey J. said the following with respect to a claim brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth.) (now known as the AHRC Act) for alleged contraventions of the Disability Discrimination Act 1992 (Cth.):

While the Disability Discrimination Act is without doubt beneficial legislation, its characterisation as such does not mean that this Court is to apply any different approach as to costs. In conferring jurisdiction under a particular statute Parliament may conclude that policy considerations warrant a special provision as to costs, for example that there be no order as to costs or that costs only be awarded in certain circumstances, such as, for example, where a proceeding has been instituted vexatiously or without reasonable cause: Workplace Relations Act 1996 (Cth), s 347. The absence of any such provision applicable to the present case confirms that the usual principles as to costs are to apply.

Cited in Flanagan v. Murdoch Community Services Inc [2010] FCA 647 per Gordon J. See also Walker v. State of Victoria (No 2) [2011] FCA 417 per Tracey J.

(2)    secondly, the Doctor’s entire case had no reasonable prospect of success for the reasons articulated in my earlier reasons. Healthscope was, to use its language, “wholly successful” in this proceeding. The fact that the Doctor characterises my decision as involving “unjust findings” compels no contrary conclusion; and

(3)    thirdly, I am unpersuaded that special circumstances exist to justify a departure from the usual rule as to costs. The fact that the Doctor was self-represented is an insufficient ground to relieve her from liability for costs. Additionally, to the extent the Doctor relied upon her financial position as constituting a special circumstance, no evidence was put before me to support the Doctor’s claims that she is burdened with debt and incapable of paying a costs order. The absence of such evidence cannot be remedied by the Court independently searching for the Doctor’s “FICO scores … online”, as suggested by her. It is not incumbent on the Court to undertake such an exercise.

9    I shall, therefore, make an order as to costs in the terms sought by Healthscope.

Associate:

Dated:    23 April 2020