Andrews v Australian Rail Tram and Bus Industry Union (NSW Branch) (No 2)

[2021] NSWCATAD 363

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Andrews v Australian Rail Tram & Bus Industry Union (NSW Branch) (No 2) [2021] NSWCATAD 363

Hearing dates:

On the papers

Date of orders:

07 December 2021

Decision date:

07 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
E Hayes, General Member

Decision:

1. A hearing of the respondent’s costs application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act, 2013.

2. The applicant is to pay the respondent’s costs in the amount of $5,000 plus GST pursuant to s60(2) of the Civil and Administrative Tribunal Act, 2013.

Catchwords:

COSTS – anti-discrimination – entirely misconceived and lacking in substance - no tenable basis in fact or law

Legislation Cited:

Civil and Administrative Tribunal Act, 2013

Cases Cited:

203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAB 29

Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Limited v Commissioner of Police, NSW Police Force [2018] NSWCATAD

Curwood Homes Pty Limited v Spiteri [2015] NSWCATAP 48

Younan v Commissioner of Fair Trading (No. 2) [2016] NSWCATOD 60

Category:

Principal judgment

Parties:

Ria Andrews (Applicant)
Australian Rail Tram & Bus Industry Union (NSW Branch) (Respondent)

Representation:

Counsel:
Mr A Howell - Respondent

File Number(s):

2019/258971

Publication restriction:

None

REASONS FOR DECISION

1. This was a costs application by the Australian Rail Tram & Bus Industry Union (NSW Branch) (the RTBU), following the Tribunal’s Decision published on 21 December 2020 (Andrews v Australian Rail Tram & Bus Industry Union (NSW Branch) [2020] NSWCATAD 321), (the Decision).

2. The complainant, Ms Ria Andrews, was unsuccessful in a complaint she made against the RTBU.

3. The Tribunal sought written submissions be provided in relation to an application by the RTBU for an order that Ms Andrews pay its costs of the proceedings.

Background

4. The background to the Decision is set out at paragraphs [5] to [27] of the Decision. At paragraph [59], we found that the complaint against the RTBU Secretary, Mr Claassens, refusing Ms Andrews services on discriminatory grounds was not found. At paragraph [60], we found that the complaint had no tenable basis in fact or law and was entirely misconceived and lacking in substance.

5. It is following these findings that the RTBU seeks an order for payment of its costs.

Legislative framework

6. The Tribunal’s power to award costs is set out in s60 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) as follows:

‘60   COSTS

1. Each party to the proceedings in the Tribunal is to pay the party’s own costs.

2. The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

3. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

   (a)   whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

   (b)   whether a party has been responsible for prolonging unnecessarily 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)   whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

   (f)   whether a party has refused or failed to comply with the duty imposed by s36(3),

   (g)   any other matter the Tribunal considers relevant …’

   7. NCAT has issued a guideline to costs applications, materially, as follows, at clause 12:

‘Unless a party asks for costs, each party must pay their own costs. If a party wants to ask for costs, the application should be made in writing or verbally before the end of the hearing. The latest a costs application should be made is 28 days after the Tribunal has delivered their reasons for the decision. Any further delay may be procedurally unfair and expenses for the parties and the Tribunal.’

Relevant principles

8. The usual position is as stated in s60(1). Any departure from this general position requires the party making the application to demonstrate the Tribunal should depart from what is termed as the ‘usual rule’ (see s60(3); Curwood Homes Pty Limited v Spiteri [2015] NSWCATAP 48 at [18]).

9. ‘Special circumstances’ are circumstances out of the ordinary but not necessarily extraordinary or exceptional; Younan v Commissioner of Fair Trading (No. 2) [2016] NSWCATOD 60 at [7].

10. In determining an application for costs the Tribunal must weigh whether those circumstances are sufficient to amount to ‘special circumstances’ which justify the departure from the usual rule that each party bear its own costs. (See Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Limited v Commissioner of Police, NSW Police Force [2018] NSWCATAD at [37] citing Obieta v Australian College of Professionals Pty Limited [2014] NSWCATAP 38 at [81]).

11. When considering an application for costs the Tribunal is to take into consideration the guiding principle as set out in s36 of the CAT Act.

Costs decision ‘on the papers’

12. Pursuant to s50(2) of the CAT Act the Tribunal can determine an application on the papers. In accordance with that provision the parties consented to the Tribunal proceeding to determine the matter without further hearing.

Written submissions

13. Each party has filed written submissions in relation to the costs application. The RTBU essentially seeks to rely upon s60(3)(c) and (e) of the CAT Act. In doing so the RTBU contends that at no time during Ms Andrews’ employment with the Rail Authority, did she consider the RTBU had acted in a discriminatory way towards her. As noted at paragraph [19] of the Decision, Ms Andrews as recently as 1 March 2017 was positively flattering towards the RTBU and the members of its staff. It was not until her retirement dinner in 2018, at paragraph [27] of the Decision, that Ms Andrews says she formed a basis for a contention that the RTBU’s conduct towards her was influenced by her race, gender or disability.

14. Putting aside the complexities of pleading a case of unlawful discrimination, when looking at the complaint and the points of claim filed in the proceedings, the only reasonable view that can be formed is that the approach taken by Ms Andrews was a ‘scatter gun’ approach as referred to in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAB 29 at [39] to [40].

15. The RTBU costs exceed $30,000 but it seeks an order that Ms Andrews pay its costs in an amount fixed at $25,301.56, within 28 days of the order, or, in the alternative, that Ms Andrews pays its costs in amount agreed or, failing agreement, as assessed.

Ms Andrews’ response to the application for costs

16. Ms Andrews filed written submissions in response to the RTBU’s application for costs. She draws to our attention the Tribunal’s jurisdiction is ordinarily a no costs jurisdiction. She contends that the RTBU was well aware she was representing herself and questioned the use by the RTBU of a lawyer and a barrister in defending the matter which has resulted in significant costs incurred by the Union. She says that the RTBU’s decision to employ the services of a solicitor and barrister was ‘unnecessary’ and also ‘extravagant’. She goes on to state:

‘It is clear now how hypocritical the RTBU are in regards to payment for legal services. The RTBU claim to be a non-profit organisation, and yet they have, or will, happily pay for the services of another lawyer and a barrister, but would not allow me, at the time an innocent financial member, the same courtesy, even when the RTBU already has a legally trained employee on the payroll.’

17. Ms Andrews submits that the RTBU should not succeed in its application for costs and makes some criticism as to the late service of submissions with respect to the application for costs.

Consideration

18. As set out in the Decision, notably at paragraphs [56] and [57], [59] and [60], we have found that Ms Andrews’ claim was entirely misconceived and lacking in substance. It had no tenable basis in fact or law and was for those reasons dismissed. We took into consideration the fact that Ms Andrews was not legally trained. Her points of claim were therefore not articulated in a form that would be expected of a legal practitioner. Despite the lack of particularity of the claim, the evidence brought in the substantive proceedings failed to prove and establish that she was the subject of ‘less favourable treatment’ in relation to the alleged benefit or service provided to her by the RTBU. The evidence also did not support Ms Andrews’ claims that the RTBU refused or failed to provide a service to her in a particular way.

19. Having considered, particularly the matters set out in sections 60(3)(c) and (e), we are satisfied that there are special circumstances warranting an award of costs. We do not need to find that the special circumstances are extraordinary or exceptional (Younan v Commissioner of Fair Trading (No. 2)). We find that due to Ms Andrews’ claim having no tenable basis in fact or law and being otherwise misconceived or lacking in substance, that the RTBU should be entitled to an order for costs.

20. We have considered the RTBU’s submissions that costs of the proceedings are in excess of $30,000. However, the RTBU seeks an order for costs in costs in a fixed amount of $25,301.56. We are not satisfied that we should undertake a costs assessment exercise, despite having considered the matters set out in 203 Castlereagh Street Pty Limited.

21. Ordinarily, the Tribunal is a no costs jurisdiction (s60(1) CAT Act). However, for the reasons set out above, we have found there are special circumstances which warrant a costs order being made in favour of the RTBU pursuant to s60(2) of the CAT Act. To balance the interest of the parties, namely NCAT being a no costs jurisdiction, our finding concerning ‘special circumstances’ and to bring the proceedings to finality, we find that the respondent’s legal costs should be fixed in an amount of $5,000.

22. The order of the Tribunal is that the applicant is to pay the respondent’s costs fixed at $5,000 plus GST.

Orders

23. The Tribunal orders as follows:

1. A hearing of the respondent’s costs application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act, 2013.

2. The applicant is to pay the respondent’s costs in the amount of $5,000 plus GST pursuant to s60(2) of the Civil and Administrative Tribunal Act, 2013.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 December 2021