By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

A man who claimed he was discriminated against by co-workers, with management dismissing him after he complained about it, has been unsuccessful with a claim to cap his litigation costs at $30,000. The Federal Circuit and Family Court estimated that actual costs would be about $52,000, a gap that would disadvantage the employer if it successfully defended the case.

Facts of case

The employee has claimed that co-workers directed homophobic insults at him, showed him pornography and grabbed his genitalia. He claimed that when he complained to management about it, he was dismissed.

He lodged a complaint of discrimination under the Australian Human Rights Commission Act with the Federal Circuit and Family Court. His claim seeks damages of $150,000.

The employee also applied to limit the costs that can be awarded on a party-to-party basis to a maximum of $30,000.

The Court said that the case had "significant public interest" because of the gravity of the alleged acts of discrimination. However, it declined to impose the limit on costs allocation, finding that the employer agreed that the matter could be heard within five days. The cost of a five-day hearing was $52,000. In that case, if successful the employer would be exposed to a significant shortfall, therefore the employee's request for a $30,000 limit was unrealistic.

The Court dismissed the employee's application to limit costs, and the matter remains otherwise unresolved.

Read the judgement

O'Brien v Goodman Fielder Consumer Foods Pty Ltd [2024] FedCFamC2G 117 (14 February 2024)