Ahmadi v State of NSW (NSW Police Force)
[2013] NSWADT 149
•01 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ahmadi v State of NSW (NSW Police Force) [2013] NSWADT 149 Hearing dates: On the papers Decision date: 01 July 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: The respondent's application for costs is refused.
Catchwords: COSTS - applicant failed to appear at hearing and provided no explanation - no proof that applicant received any of the correspondence - whether fair to order costs Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131 Category: Interlocutory applications Parties: Jawid Ahmadi
State of NSW (NSW Police Force)Representation: Norton Rose Australia (Respondent)
No appearance (Applicant)
File Number(s): 131003
reasons for decision
Introduction
Mr Ahmadi lodged a complaint of race discrimination against the NSW Police Force with the President of the Anti-Discrimination Board. The President declined the complaint and Mr Ahmadi requested that it be referred to the Tribunal. A complaint that has been referred after declination cannot go ahead unless the Tribunal gives its permission or "leave". Mr Ahmadi did not attend the leave hearing and the complaint was dismissed. Mr Ahmadi did not explain why he did not come to the hearing.
The NSW Police Force has applied for Mr Ahmadi to pay its costs. I have dismissed that application because the general rule is that each party pays their own costs and I am not satisfied that it is fair to order costs in this case.
Evidence
The Registrar wrote to Mr Ahmadi on 30 January 2013 to advise him of the hearing on 12 March. The letter was sent to the address provided by the President of the Anti-Discrimination Board when the complaint was referred. When Mr Ahmadi did not appear at the hearing the Judicial Member telephoned two mobile phone numbers that had been provided by the President but no-one answered. The Tribunal dismissed the complaint because Mr Ahmadi had failed to appear: Administrative Decisions Tribunal Act 1997 (Tribunal Act) s 73(5)(g)(iii).
The Tribunal "may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure." Tribunal Act, s 73(5)(h). Any application for reinstatement must be made within 28 days or such other time as the Tribunal may allow. The Tribunal wrote to Mr Ahmadi on 12 March 2013 to let him know that his complaint had been dismissed and enclosing the sections of the Tribunal Act relating to providing an explanation for not appearing. The 28 day time period has expired and Mr Ahmadi has not applied for his proceedings to be reinstated.
I accept the evidence of Ms Woodward, a solicitor at Norton Rose Australia, as to the steps she took to prepare the matter for the leave hearing on 12 March 2013. I also accept that the costs incurred for her work and the work of another solicitor are in the order of $7,134.49. Mr Ahmadi did not respond to the costs application despite being invited to do so by letter of 29 April 2013.
Legal principles
The Tribunal has power to award costs in matters in the Equal Opportunity Division under section 88 of the Tribunal Act 1997: AD Act s 110. Section 88 provides that:
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section,
"costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
In AT v Commissioner of Police, NSW [2010] NSWCA 131 Basten JA at [33] re-iterated the general rule that each party pays their own costs. His Honour then made the following comments about the scope of s 88:
. . .Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act:
The nature of the jurisdiction is important. The Tribunal has noted the "chilling effect" of too readily awarding costs against unsuccessful applicants in a jurisdiction which seeks to protect and promote the observance of fundamental human rights: Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [39]. Another aspect of the jurisdiction is that parties, particularly applicants, are often not legally represented and are novices when it comes to legal proceedings in general and liability for costs in particular.
The objectives of the Tribunal Act in s 3 are also relevant. They include:
(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair
Consideration
Mr Ahmadi failed to comply with the Tribunal's direction to come to the hearing: Tribunal Act, s 88(1A)(a)(i). That is a matter that the Tribunal may take into account in determining whether it is fair to award costs.
As well as the letter advising Mr Ahmadi of the hearing, the Tribunal has written to him on two other occasions. All correspondence has been sent by ordinary mail to the address that the President of the Anti-Discrimination Board provided to the Tribunal when the complaint was referred. The Judicial Member attempted unsuccessfully to telephone Mr Ahmadi during the hearing. Mr Ahmadi has not responded to any of these communications.
Personal service of a notice of hearing is not required. But without personal service I am not satisfied that Mr Ahmadi actually received the letters that the Tribunal sent. The address may be incorrect or Mr Ahmadi may have moved. In those circumstances I am not satisfied that he deliberately ignored the Tribunal's direction. The general rule is that each party pays their own costs. It is not fair in all the circumstances to order that Mr Ahmadi pay the costs of the NSW Police Force.
Order
The respondent's application for costs is refused.
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Decision last updated: 01 July 2013
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