Comcare seeks order for employer to pay costs for leave application
Date: April 10, 2025
Rindeklev v Comcare (No 2) [2024] FCA 930.
Key Points:
- The Tribunal was required to consider whether to exercise its discretion to award costs to Comcare.
- Costs will generally be awarded to the successful party where there are no special circumstances.
Background:
Ms Rindeklev was employed by Comcare. She made a complaint to the Human Rights Commission against Comcare. A delegate of the President of the Commission terminated the complaint on the basis that it was misconceived, lacked substance, or both. Ms Rindeklev applied for leave to advance a claim of unlawful discrimination, which was refused. Comcare subsequently sought an order for Ms Rindeklev to pay the costs of the leave application. While the Court awarded costs in favour of Comcare, it did not award the usual full-costs order, instead granting only 60% of Comcare’s costs.
The Law:
Section 43 of the Federal Court of Australia Act 1976 (Cth) provides that the award of costs is discretionary. The Court’s discretion as to costs generally favours the successful party Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56. However, in special circumstances, a departure from the general rule can be warranted Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53.
Conclusion:
Comcare, as the successful party, argued that there were no special circumstances justifying a departure from the general rule. The Court agreed that Comcare was entitled to costs, as Ms Rindeklev’s application for leave had been unsuccessful and there was no legal basis to exempt her from a costs order. The Court rejected her argument that costs should not be awarded simply because she intended to appeal.
Although Comcare was entitled to costs, the Court did not award the usual full-costs order. Instead, it applied a reduction based on the complexity and outcome of a key legal argument presented by Comcare.
A central issue in the leave application was whether Comcare could rely on witness immunity as a defence. The Court found this issue to be complex and did not reach a conclusive decision on it. While the Court ultimately refused leave on other grounds, it acknowledged that had the witness immunity argument been the sole basis for refusing leave, it may not have been sufficient to justify dismissal. Consequently, the Court determined that costs associated with that issue should not be borne by Ms Rindeklev, reducing Comcare’s awarded costs to 60%.
Lessons Learnt:
This decision highlights the Federal Court’s flexible approach to costs. While the general rule favours awarding costs to the successful party, the Court retains discretion to apportion costs where specific issues in the case justify a departure from the standard approach. In this instance, the complexity and unresolved nature of the witness immunity argument led to a partial reduction in Comcare’s cost entitlement.
Contact:
Caitlin Jenkins Claire Tota
Graduate Solicitor Partner
Direct: +02 4044 4110 Direct: +61 (8) 9265 6011
Caitlin.Jenkins@hbacrawford.com.au Claire.Tota@hbacrawford.com.au
Download PDF here: Rindeklev v Comcare (No 2) [2024] FCA 930.