19 Sep Costs in Federal Discrimination Claims
Recent changes to the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) will see a major shift in how claims of discrimination are dealt with in Federal courts. The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (Costs Protection Bill) was recently passed by both Houses of Parliament.
When can a claim for discrimination be brought in a Federal court?
A complaint of discrimination in breach of a federal anti-discrimination law must be made to the Australian Human Rights Commission (Commission). If the Commission terminates the complaint, the complainant can progress their claim for discrimination in Division 2 of the Federal Circuit and Family Court of Australia or the Federal Court of Australia in certain circumstances (section 46PO of the AHRC Act).
What are the changes to costs provisions?
The Costs Protection Bill has completely replaced the previous section 46PSA of the AHRC Act. Previously, in deciding whether to award costs in the proceedings, the court may have had regard to the offer where proceedings were commenced under section 46PO of the AHRC Act, a party makes an offer and the offer was rejected.
Applicant Costs
Section 46PSA of the AHRC Act provides the court must order costs for an applicant’s successful section 46PO claim.
Costs can be ordered on an indemnity basis or otherwise (section 46PSA(3) of the AHRC Act).
An applicant will not receive costs if they performed an unreasonable act or omission which caused them to incur costs (section 46PSA(4) of the AHRC Act).
Respondent Costs
An unsuccessful applicant may be ordered to pay costs if:
1. The court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or
2. The court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur the fees; or
3. All of the following apply:
a. the other party is a respondent who was successful in the proceedings;
b. the respondent does not have a significant power advantage over the applicant;
c. the respondent does not have significant financial or other resources relative to the applicant,
(section 46PSA(6) of the AHRC Act).
In a representative application, a court cannot make an order under section 46PSA(6) against the person on whose behalf the application was made.
If you wish to bring a discrimination claim, or if you are defending a discrimination claim, please contact our office.
GENERAL AND CONTACT INFORMATION
The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice , we welcome you to contact us on (02) 9189 5905 or at [email protected].