Amery v The State of New South Wales (No.2)

[2001] NSWADT 187

CITATION:	Amery & Ors v The State of New South Wales (No.2) [2001] NSWADT 187
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Joyce Amery, Lyn Bovard, Margaret Douglas, Jenny Drury, Linda Freeman, Leonie Hancott, Jacki Irvine, Denise McHugh, Karen Mors, Cheryl O'Loan, Marian Platt, Megan Pursche, Marcia Skelton, Mary Strong RESPONDENT The State of New South Wales
FILE NUMBER:	74-87 of 1997
HEARING DATES:	25/07/2001
SUBMISSIONS CLOSED:	07/25/2001
DATE OF DECISION:	11/13/2001
BEFORE:	King P - Judicial Member at 1; Edwards K - Member at 11; McDonald O - Member at 11
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Australian Postal Commissioner v Dao (1986) 6 NSWLR 497 Walton v McBride (1995) 36 NSWLR 440 Holdaway v Qantas Airways Ltd (1992) EOC92-430 Gallagher v New South Wales Police Service [1998] NSWEOT Penfold v Penfold (1980) 114 CLR 331 Clearly Bros (Bombo) Pty Limited v Cvetkovski [2001] NSWADTAP 10 Amery & Ors -v- State of New South Wales [2001] NSWADT 37
REPRESENTATION:	APPLICANTS C Birch, barrister RESPONDENT P Menzies QC, barrister
ORDERS:	1 Application dismissed

The Tribunal is divided in opinion in this matter. Under section 78(2) of the Administrative Decisions Tribunal Act 1997 when the Tribunal is divided in opinion on a question of law (including whether a question is a question of law) the question is to be decided by the judicial member . The decision in this matter is therefore that of the judicial member.

Reasons of Peter King

1 The applicants have sought costs of the proceedings. The several complaints were heard together. There was substantial cooperation between Senior Counsel for both sides of the record on issues such as quantum and details of the particulars of employment of each complainant which led to a significant reduction in hearing time.

2 Section 114 of the Anti Discrimination Act (1977) provides:

(1) Except as provided by section 111(2) and subsection (2) each party to an inquiry shall pay his or their own costs.
(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise as it thinks fit.
3 The cases make it clear that to obtain an order other than the usual order in a particular case there must exist circumstances which justify a departure from the general rule ( Australian Postal Commissioner v Dao (1986) 6 NSWLR 497 at 505) and that this discretion must be exercised judicially for the purpose of achieving the objects of the legislation ( Walton v McBride (1995) 36 NSWLR 440, at 448 per Kirby P).

4 Counsel for the Applicant submitted by reference to these and other decisions consistent with them that there were several circumstances which took the matter out of the general rule. One was that the case had clear application to people other than the complainants. In my view there was no evidence to support this contention, and in the absence of evidence no special order for costs should be made. Speculation about other possible claimants is no substitute for evidence. I would add that on the evidence it appeared that all of the possible complainants with real and substantial cases had been named in the several complaints dealt with at the hearing.

5 Next, reference was made to the possibility that the complainants have a liability for legal costs which outweighs the awards made in the case. However again in my view there is no evidence whatsoever to support this contention. There was simply no evidence at all on the cost to the complainants of conducting the hearing. Having regard to the size of each award this factor cannot and ought not to be presumed.

6 Next it was submitted that the case was difficult and complex. However the difficulties of the case had more to do with the fact that multiple cases were heard together thereby saving hearing time and costs, than with the legal difficulties of any particular case. That is a consideration against a special order for costs in my view. There was nothing complex or out of the ordinary in my view with any of the complaints of indirect discrimination. By consent of all parties the complaints were heard together. At bottom complaints involved the application in a new situation, of well established principles, as submissions disclosed.

7 Next it was put that the case involved the application of a “blanket” policy, enabling the respondent to take economic advantage of the complainants. However all that was proven in my view in respect of each complaint was that the application of the requirement of permanent status meant that the applicant lost certain wage opportunities for which each has been compensated. Mr Menzies was very careful in his submissions to distinguish each case and at no stage acknowledged any blanket policy of the type mentioned. Moreover this was a case of indirect not direct discrimination, in which it was put that the effect of the circumstances in which the parties found themselves was to give rise to proscribed conduct. Furthermore, in my view cases such as Holdaway v Qantas Airways Ltd (1992) EOC92-430 show it is necessary in order to take a case out of the general rule for a claimant, to show more than adverse criticism by the Tribunal of a general policy. Of itself, in my view this criteria is not sufficient to take the case out of the general rule, even were it made out as a relevant consideration.

8 Next it was submitted that there was a substantial issue of public policy involved in the case. In one sense every case on this Tribunal involves an issue of public policy. To attract a special order for costs on this ground, in my view, the policy must raise some novel question of public policy. In this case the issue was indirect discrimination within the New South Wales Teaching Service, a case which has been substantiated. The case whilst unfortunate for each complaint, in my view did not establish or refine or even define any new principle of public policy. It simply involved the application of accepted principles to a not unusual set of facts. In my view there was nothing so unusual or special to take the case out of the ordinary run of cases or direct discrimination in this Tribunal.

9 Next it was faintly suggested that the respondent’s conduct did not assist in clarifying the issues in the case. There is no evidence whatsoever to support that suggestion. On the contrary as I have earlier noted the respondent cooperated fully in the expeditious conduct of the case, and made concessions where appropriate. This dispenses of another factor referred to in Holdaway namely a failure to comply with directions made by the Tribunal. These last two factors as suggested by the case law illustrate that an application for costs must reveal some irresponsible or unfortunate or unreasonable conduct by the respondent to warrant a special order. In my view no such conduct has been proven. In my view the Respondent, and the complainants, conducted the several cases before as in an exemplary fashion.

10 However I note that it is my misfortune to disagree with my colleagues on the issue of costs. I regret that this is so however in my view there are no circumstances that justify as a proper exercise of discretion the application of section 114 of the Act. Following are the reasons of my colleagues for the record.

Reasons of Kellie Edwards and Owen McDonald

11 Tribunal members Mr McDonald and Ms Edwards do not agree with the decision made by the judicial member Mr King with regard to costs, for the following reasons.

12 The complainant relied upon three key cases in order to ground an application for costs against the respondent, including:

Gallagher v New South Wales Police Service [1998] NSWEOT ( “Gallagher” );
Cleary Bros (Bombo) Pty Limited v Cvetkovski [2001] NSWADTAP 10 ( “Cleary Bros” ); and
Holdaway v QANTAS Airways Limited [1992] EOC 92-430 ( “Holdaway” ).
13 In Gallagher , the Tribunal, found for the complaint in awarding costs against the respondent. This decision was referred to with approval in Cleary Bros, a decision of the Appeal Panel of the Administrative Decisions Tribunal. In Cleary Bros , referring the Gallagher , the Appeal Panel stated:
‘section 114 (1) “requires that in the normal course, an award of costs would not be made.” In paragraph 9, the Tribunal said that “there has to be something over and beyond a normal course of circumstances to justify the making of an award of costs.” This should be understood to mean nothing other than the presumption in section 114 (1) “:must yield” when in a particular case there are circumstances justifying the making of costs order ( Penfold v Penfold (1980) 114 CLR 331 at page 315). To similar effect there may be in particular case [sic] “circumstances which justify a departure from the general rule”( Australian Postal Commissioner v Dao and Anor (No 2) (1986) 6 NSWLR 497 at 505).
14 In Gallagher , Judicial Member Rice analysed the nature of the discretion to be exercised under section 114 of the Act in the context of that particular case. Being modelled on s 117 of the Family Law Act, section 114 requires that the discretion be “exercised judicially, for the purposes of achieving the objects of the legislation which has conferred the power” [ Walton v Mc Bride (1995) 36 NSWLR 440 as per Kirby J at p448B]. Judicial Member Rice went on to say at p 16:
[P]recisely because the decision is a discretionary one for the Tribunal in the circumstances of the particular case, there can be no authority or rule that determines whether in any case an order should be made.
15 The decision to award costs against the respondent was made on the following bases:
the case had clear application to people other than the complainant; and
the complainant had a liability for legal costs outweighing the award made in the case.
16 In addition, the complainant relied Holdaway , in which the Tribunal found that the following circumstances may be relevantly considered when exercising the discretion under section 114:
(a) the difficulty and complexity of the case;
(b) where the Tribunal finds the application of a “blanket” policy, or general policy, is applied in a general way and the respondent seeks to justify the general policy;
(c) the policy enabled the respondent to take economic advantage;
(d) where there is a substantial issue of public policy involved in the case;
(e) the respondent’s conduct in the case does not assist in clarifying the issues;
(f) where the respondent has not complied with directions made by the Tribunal;
17 The complainant in Holdaway submitted that “particularly where there is a statutory limit on the quantum of damages that may be awarded” the above circumstances “are sufficient to justify the tribunal making an order for costs against the respondent” (at para.79,053).

18 In this context, Judicial Member Rice’s first point is not inconsistent with the reasoning of the tribunal in Holdaway at points (b), (c) and (d).

19 In Amery & Ors -v- State of New South Wales [2001] NSWADT 37 (12 March 2001) (“Amery”) Tribunal found (at p 12):

The condition or requirement disclosed by the award and the enterprise agreement, which adopts a similar approach, is that in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status.
20 The Tribunal went on to find that “a substantially higher proportion of men over women comply, or are able to comply, with the condition of permanent status” (at p 17), and that on the evidence provided by the Department of School Education in the case, that this requirement of permanency was not reasonable in the circumstances. Uncontested evidence provided to the Tribunal indicated that only 4,828 casuals were men, whereas 23,182 were women.

21 On this basis, we find the following facts to be sufficient to justify a departure from the general rule:

the case had clear application to people other than the complainants and though the matter was not dealt with as a Class Action – the respondent’s e vidence in regard to how it was resourcing schools to cope with teacher shortages was a general response and not limited to the circumstances relating to the individual applicants;

the policy was applied in a general way and the respondent sought to justify that general policy ;

the policy enabled the respondent to take economic advantage in that qualified and experienced female teachers were paid less than they would have been paid except for the existence of the condition of permanency;

this case represented a substantial issue of public policy, specifically, the lawfulness of a condition producing a detriment which discriminates on the basis of a particular pattern of workplace participation in which women are more likely to partake.