Thompson v Big Bert Pty Ltd [2008] FCA 792

Thompson v Big Bert Pty Ltd [2008] FCA 792

The respondent was entitled to party-party costs in the HREOC Act proceedings because the applicant failed in that claim and there was no statutory barrier to such an order. Indemnity costs were refused because the offer in respect of the HREOC Act claim offered only dismissal with no order as to costs and did not make it unreasonable for the applicant to continue the case. Joint costs incurred in both proceedings were apportioned at 60% to reflect overlap and the substantial focus on the HREOC Act claim.

Jurisdiction
Australia
Judgment Date
29 May 2008
Procedural Posture
Costs Application Following Dismissal of Claims Under the Workplace Relations Act 1996 (cth) and the Human Rights and Equal Opportunity Commission Act 1986 (cth) / Post Judgment Costs Determination
Outcome
The Court ordered the applicant to pay the respondent's costs in matter NSD 1948 of 2006 on a party-party basis, with only 60% of costs payable where costs were incurred jointly with matter NSD 877 of 2006; indemnity costs were refused.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'party Party Costs' 'statutory Costs Restrictions' 'apportionment of Overlapping Costs']
['practice and Procedure' 'costs' 'employment Law' 'human Rights Law'] ['offer of Compromise' 'indemnity Costs' 'party Party Costs' 'statutory Costs Restrictions' 'apportionment of Overlapping Costs']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Claims Under the Workplace Relations Act 1996 (cth) and the Human Rights and Equal Opportunity Commission Act 1986 (cth) / Post Judgment Costs Determination

Legal Issues

  1. 1 ['Whether costs could be awarded in relation to the proceedings under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) notwithstanding the Workplace Relations Act 1996 (Cth).' "Whether the applicant's rejection of the respondent's offer of compromise warranted indemnity costs." 'How costs should be apportioned where costs were incurred in both the HREOC Act proceedings and the WR Act proceedings together.']

Ratio Decidendi

The respondent was entitled to party-party costs in the HREOC Act proceedings because the applicant failed in that claim and there was no statutory barrier to such an order. Indemnity costs were refused because the offer in respect of the HREOC Act claim offered only dismissal with no order as to costs and did not make it unreasonable for the applicant to continue the case. Joint costs incurred in both proceedings were apportioned at 60% to reflect overlap and the substantial focus on the HREOC Act claim.

Court Disposition

The Court ordered the applicant to pay the respondent's costs in matter NSD 1948 of 2006 on a party-party basis, with only 60% of costs payable where costs were incurred jointly with matter NSD 877 of 2006; indemnity costs were refused.

Orders

  • ["The applicant pay the respondent's costs in matter NSD 1948 of 2006 on a party/party basis, provided that where costs were incurred with respect to those proceedings and matter NSD 877 of 2006 together, 60% only of the respondent's costs be paid."]