Case: Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139
Outcome: considered
The parties agree on many of the factors to be taken into account in the exercise of the Court's discretion to make an order under rule 1. As discussed in the authorities which consider O 62A r 1 and the equivalent provision in the Federal Magistrates Court Rules, the factors include: &#8226; the timing of the application ( Sacks v Permanent Trustee Australia Ltd [1993] FCA 502 ; (1993) 45 FCR 509 at 511 per Beazley J; Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 at [48] per Barnes FM; Minns v State of NSW (No. 2) [2002] FMCA 197 at [9] per Raphael FM]); &#8226; the complexity of the factual or legal issues raised in the proceedings ( Hanisch at 387 per Drummond J; Dibb v Avco Financial Services Limited [2000] FCA 1785 at [15] per Sackville J); &#8226; the amount of damages that the applicant seeks to recover ( Hanisch at 387) and the extent of any other remedies sought ( Flew at [48]); &#8226; whether the applicant's claims are arguable and not frivolous or vexatious ( Flew at [15]); &#8226; the undesirability of forcing the applicant to abandon the proceedings ( Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 at 148 per Wilcox J; Flew at [9]); and &#8226; whether there is a public interest element to the case ( Woodlands at 146; Flew at [23], [47]). 37 The applicants rely on the grant of legal aid and submit that costs should be capped at the extent of the legal aid indemnity provided to the applicants, as in Woodlands at 149. Mr Ferguson says that he ' may be unable to pursue the litigation in the event of his application being unsuccessful ' (emphasis added) as he does not have the means to meet an adverse costs order and does not wish to be made a bankrupt. Mr Ferguson says that he is unemployed and in receipt of a Disability Support Pension. 38 Mr Corcoran does have assets and could meet an adverse costs order but does not wish to be forced to sell property and thereby deprive himself and his family of financial security. He wishes to have the costs capped, even if the Court deemed $15,000 to be inadequate. 45 The existence of a public interest in the determination of the issues in litigation is a factor of some significance in the awarding of costs. However, public interest and an arguable case are not necessarily decisive and not, of themselves, sufficient to prevent the usual costs order being made ( Ruddock at [18] [19]; Woodlands at 148; Physical Disability at [7]). The usual order for costs applies notwithstanding that the Act is beneficial legislation ( Fetherston at [9] per Heerey J). However, discretionary considerations may lead to a different result ( Fetherston at [12]). 49 The relevance of the cost of public interest litigation to an individual was discussed by Wilcox J in Woodlands at 147. His Honour adopted the approach of Morling J in Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568 , namely that it was not in the public interest for a litigant to be heavily out-of-pocket for taking public-spirited action. The applicants do not seek financial gain from the litigation. Even if they do intend to fly with Virgin and do not wish to pay for a carer to accompany them, the costs of the litigation far outweigh that cost, so as to render it irrelevant to a question of personal financial, rather than public, benefit. 52 On the pleadings and the accepted facts of the disability of the applicants and their inability to comply with the ITC, the applicants have an arguable case of direct and indirect discrimination under the Act. The questions raised in the pleadings have not previously been considered in the Court and raise novel questions, a relevant factor ( Woodlands at 148). In order to establish direct discrimination, the applicants must establish that the ITC are not reasonable. The factual considerations for an assessment of reasonableness are likely to be coextensive, or at least overlap, with the available defence of unjustifiable hardship in respect of the indirect discrimination claim. The evidence concerning reasonableness/unjustifiable hardship is likely to be largely adduced by Virgin. The applicants have indicated the nature of the evidence they intend to adduce and it is in short compass and documentary in form. At this stage of the proceedings, the extent of Virgin's evidence is not apparent. It should be possible for the parties to formulate agreed facts as to some of the matters to be relied on by Virgin, such as statutory requirements. The issues have already been narrowed. If the scope of the factual issues can be further narrowed, the complexity will arise in submissions and in the evaluative process and will not necessarily mean a lengthy final hearing. If that is not the case, I can reconsider the maximum amount of recoverable costs.