Gnads wrote on Dec 11
th, 2016 at 7:28pm:
Section 18C complainant Cindy Prior faces being pursued into bankruptcy after a judge ordered she pay an estimated $200,000 in legal costs for three QUT students who were accused of racial hatred over Facebook posts.
Ms Prior, on stress leave since late May 2013 from the Queensland University of Technology’s indigenous-only Oodgeroo Unit, was in talks with her solicitor, Susan Moriarty, after judge Michael Jarrett made his finding in the Federal Circuit Court in Brisbane late yesterday.
Judge Jarrett rejected arguments by Ms Prior’s barrister, Susan Anderson, including that the ill-fated and controversial legal action to win $250,000 compensation from the students should be treated differently because it was brought in the public interest.
The judge, who last month dismissed Ms Prior’s section 18C Racial Discrimination Act case against the students as having “no reasonable prospects of success”, made a distinction between public interest litigation and the personal financial benefit she sought as compensation.
Tony Morris QC, the barrister who had promised two of the students, Calum Thwaites and Alex Wood, that he would charge no fees or disbursements unless costs could be recovered from the other side, told The Weekend Australian that all the legal costs would be calculated and delivered in a bill to Ms Prior’s legal team.
“If Ms Prior cannot pay the costs, she will be bankrupted — and if she recovers any money from QUT, the trustee in bankruptcy will be asked to make a claim on those funds to pay her legal costs,’’ he said.
Ms Prior is continuing an action for $250,000 damages against QUT over the way it handled the Facebook saga.
Costs were awarded on an indemnity basis, meaning the sum will be significantly higher in relation to Mr Wood because he had offered to settle the case in March with an apology but no payment.
Judge Jarrett said: “Costs should follow the event. This is not a ‘no costs’ jurisdiction. The proceedings were commenced in this court by Ms Prior. It was her decision.”
While Ms Prior faces financial ruin unless she can raise the money, her solicitor was spared the rare ignominy of being ordered to pay costs personally.
Judge Jarrett said as the case was not completely “hopeless”, he rejected a bid by Mr Wood’s barrister, Michael Henry, to have costs awarded against Ms Moriarty.
Mr Wood will have to find an estimated $15,000 to pay for the failed bid.
During legal argument yesterday, Mr Morris said his client Mr Thwaites had “done nothing wrong whatsoever” and had not written anything offensive on Facebook, while Jackson Powell had merely made a “poor attempt at humour” with his post: “I wonder where the white supremacist lab is.”
Mr Morris told Judge Jarrett that in the build-up of the case, which was with the Human Rights Commission for 14 months, the students were “held to ransom to get $5000 (from each) for a fighting fund”.
Mr Powell’s Facebook post came after Mr Wood wrote: “Just got kicked out of the unsigned indigenous computer room. QUT stopping segregation with segregation?”
Mr Wood wrote it shortly after he was ejected from the Oodgeroo Unit by Ms Prior after she had asked him whether he was indigenous. Judge Jarrett found that Mr Wood’s words “were rallying against racial discrimination” and not a breach of section 18C, which makes it unlawful to cause offence or humiliation on the basis of race.
Judge Jarrett also rejected Ms Prior’s attempt to press ahead with a subpoena to Facebook to try to discover the identity of someone who wrote a post with the word “black people”. He has previously found that Mr Thwaites, who attended court yesterday, had not posted the term.
Ms Prior’s lawyers raised several arguments to try to avoid a costs order, citing the public interest in section 18C, but Mr Wood’s barrister, Anthony Collins, said the racial vilification allegations she levelled were “of the highest level of seriousness”, lacked merit and involved an unreasonable pursuit. He told the court: “In a clinical and objective way, they could never have succeeded. There was an absence of scrutiny by Ms Moriarty.”
Ms Moriarty’s barrister, Damien O’Brien QC, said it was a serious and wrong claim that Ms Moriarty had “thought up, crafted and brought the case” for an ulterior purpose, and she should be given the benefit of doubt.