Federal Court of Australia

De Been v President of the Australian Human Rights Commission [2026] FCA 1252

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 40.51 of the Federal Court Rules 2011 (Cth), the maximum costs that may be recovered in this proceeding as between the applicant and the respondent is TEN THOUSAND DOLLARS ($10,000).

2.    By on or before 5:00pm (ACST) on 11 September 2026, the applicant is to file and serve written submissions (limited to 5 pages, 12-point font and 1.5-line spacing) in support of his application.

3.    By on or before 5:00pm (ACST) on 25 September 2026, the Commonwealth Attorney-General is to file and serve written submissions (limited to 5 pages, 12-point font and 1.5-line spacing) in opposition to the application.

4.    By on or before 5:00pm (ACST) on 2 October 2026, the applicant is to file and serve any reply submissions (limited to 2 pages, 12-point font and 1.5-line spacing).

5.    The matter is listed for argument at 10:00am (ACDT) on 13 October 2026 with a half-day set aside.

6.    The applicant and the Commonwealth Attorney-General have leave to appear at the hearing of this matter by audio-visual link.

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

REASONS FOR JUDGMENT

(Ex tempore reasons settled from transcript)

O’SULLIVAN J:

1    By an originating application for judicial review filed on 30 April 2026, the applicant applies for judicial review of a decision made by a delegate of the President of the Australian Human Rights Commission under ss 46PF(1)(b) and 46PH(1)(C) of the Australian Human Rights Commission Act 1986 (Cth) terminating the applicant’s complaint.

2    The applicant had complained to the AHRC that he had been discriminated against by Western Union Financial Services Australia Pty Ltd because of a disability from which he suffers and his status as a person with a disability for which he uses an assistance animal or disability aid, or has a carer.

3    The complaint, in broad terms, is that on 3 June 2025, the applicant created or used a Western Union account and was directed by its Support Team and Escalations Department to upload identity documents via email for verification.

4    Subsequently, the applicant was informed that identity verification would only occur after he initiated a money transfer. The applicant contends that requiring initiation of a money transfer before identity verification is completed creates a barrier for him in the sense that it places him in a position where he must assume financial risk in order to access Western Union services.

5    The applicant has already made two complaints to the Australian Financial Complaints Authority about this same matter. AFCA determined that the applicant had not been discriminated against within the meaning of the Disability Discrimination Act 1992 (Cth).

6    In considering the complaint to AFCA, the delegate noted that the same factual matters that the applicant now raises in this matter were dealt with by AFCA. The delegate considered that the applicant has already had access to a remedy about the same complaint.

7    The delegate determined that it did not appear that Western Union had treated the applicant less favourably because of his disability compared to a person who does not have his disability and wished to create an account. The delegate continued that Western Union’s process for creating an account, which involves initiating a money transfer before the identity verification process occurs, applies to everyone.

8    The delegate recorded that they had concerns about the merits of the claim and that there were alternative remedies available to the applicant. Having considered all the circumstances, the delegate decided to terminate the complaint because the delegate was satisfied that an inquiry into the complaint is not warranted.

9    It was from that decision that the applicant brings this application for judicial review.

10    On 15 July 2026, the applicant filed an interlocutory application seeking, amongst other things, an order pursuant to r 40.51 of the Federal Court Rules 2011 (Cth) that the maximum costs as between party and party recoverable against him in these proceedings be fixed at $0, or such other sum as the Court considers just.

11    The applicant also seeks further orders in [4] and [5] of the interlocutory application that the costs of the Commonwealth Attorney-General, who appears as intervener, not be recoverable from the applicant or alternatively that those costs be reserved.

12    It is for the reasons which follow that there will be an order:

(a)    pursuant to FCR 40.51, limiting the costs recoverable against the applicant in the sum of $10,000; and

(b)    adjourning further consideration of the relief sought in [4] and [5] of the interlocutory application to the hearing of the substantive application.

Principles

13    The principles for an application under FCR 40.51 are well settled. The Court recently discussed the principles in Patrick v Director-General of the Australian Submarine Agency [2026] FCA 914 at [8]-[11]:

8    FCR 40.51 provides:

40.51 Maximum costs in a proceeding

(1)    A party may apply to the Court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding.

Note: Costs as between party and party is defined in the Dictionary.

(2)     An order made under subrule (1) will not include an amount that a party is ordered to pay because the party:

(a)    has failed to comply with an order or with these Rules; or

(b)    has sought leave to amend pleadings or particulars; or

(c)    has sought an extension of time for complying with an order or with any of these Rules; or

(d)    has not conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, and another party has been caused to incur costs as a result.

9    In Houston v State of New South Wales [2020] FCA 502 at [17], Griffiths J set out the relevant principles, noting that the discretion under FCR 40.51 must be exercised judicially by reference to all of the relevant circumstances and that there was no fixed criteria governing its exercise.

10    His Honour identified a number of factors that were relevant to the exercise of the discretion in that matter including:

(a)    the nature of the relief sought;

(b)    the complexity of the litigation;

(c)    the interests of the parties in both prosecuting and defending the litigation;

(d)    whether the applicant’s claims are reasonably arguable;

(e)    whether a party would otherwise be forced to abandon a proceeding if such an order was not made;

(f)    whether there is a public interest element to the proceeding;

(g)    the costs which are likely to be incurred in the proceeding, the timing of the maximum costs application; and (h) whether the party opposing the making of the orders has been uncooperative and/or delayed the proceedings.

11    So too, in Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not for Profits Commission [2021] FCA 435 at [8]-[11], Thawley J identified a number of factors observing that the weight each factor carries, if relevant to a particular case at all, varies according to the particular circumstances. It also includes the basis upon which any legal representatives are acting, for example:

(a)    if the legal representatives for the applicant are acting on a pro bono basis;

(b)    whether the applicant has a pecuniary interest in the outcome of the proceeding; and

(c)    the apparent merit of the proceeding.

Consideration

14    Applying the criteria identified in Houston, the nature of the relief sought and the complexity of the litigation is relatively straightforward.

15    The applicant has a personal interest in prosecuting the litigation. The Commonwealth Attorney-General has a statutory right to intervene in these proceedings pursuant to s 18 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

16    The apparent merits of the applicant’s claim appear to be weak, although given the matter is yet to be argued, that is necessarily at an impressionistic level.

17    There is no public interest element to the proceeding, and the parties have co-operated. The proceedings are likely to occupy half a day.

18    The Commonwealth Attorney-General relied upon an affidavit of Ms Maria Pappas affirmed 31 July 2026, which was read on today’s application. Ms Pappas is a lawyer employed with the Australian Government Solicitor, who acts on behalf of the intervener and has over six years’ experience in practising as a lawyer, including representing Commonwealth Ministers and Agencies in hundreds of proceedings in various Tribunals in Australia, the Federal Court of Australia, the Federal Circuit Court of Australia (as it then was) and the Federal Circuit and Family Court of Australia.

19    In her role as a lawyer working for the Australian Government Solicitor, Ms Pappas prepares cost estimates at the commencement of proceedings and negotiates costs and work on the taxation and assessment of costs in accordance with the Federal Court Rules and the Federal Court of Australia Costs Practice Note (GPN-Costs) once a proceeding has been determined.

20    Ms Pappas deposes that the costs likely to be incurred by the intervener is approximately $18,000 in the event this matter proceeds to final determination.

21    That estimate seems realistic and I accept Ms Pappas’ estimate of the likely costs to be incurred.

22    Nonetheless, the Commonwealth Attorney-General contends that an order limiting costs in the sum of $10,000 is reasonable in all the circumstances.

23    The applicant has filed an affidavit affirmed 4 August 2026 in which he deposes to his financial means. I accept that the applicant has limited financial means and will struggle to meet any costs order. There are some unexplained deposits into the applicant’s Westpac bank account, but I do not consider them to be particularly significant.

24    Nonetheless, an order limiting costs to $0 not only unfairly benefits the applicant, it results in the Commonwealth expending public funds in defending the proceedings with no recourse if the applicant is unsuccessful.

25    The exercise of the power under FCR 40.51 is discretionary. It may be that an order limiting costs in any amount other than $0 will stifle the applicant’s claim, however the applicant will not be forced to abandon his application but rather may choose to do so. The applicant has not said positively that he will abandon the application in the event that a limiting costs order in a sum greater than $0 is made.

26    Further, that consideration needs to be balanced against, amongst other things, questions of public interest in bringing the proceedings, the applicant’s personal interest in the proceedings, and the expenditure of public funds in defending proceedings in circumstances where, albeit at an impressionistic level, the claim is weak.

Conclusion

27    In all the circumstances and in the exercise of the Court’s discretion, taking into account the above factors, a maximum costs order in the sum of $10,000 is appropriate.

28    There will be orders accordingly.

Associate:

Dated:    27 August 2026