Aydemir v Redegalli

[2011] NSWADT 198

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Aydemir v Redegalli [2011] NSWADT 198

Hearing dates:

5 August 2011

Decision date:

18 August 2011

Jurisdiction:

Equal Opportunity Division

Before:

Magistrate N Hennessy, Deputy President

Decision:

1. The respondent's application for costs is refused.

2. The respondent is ordered to pay the applicant $500 being the costs of responding to the respondent's application for an apology.

Catchwords:

COST - complaint withdrawn and dismissed after first case conference - whether costs incurred at Anti-Discrimination Board recoverable - whether complaint lacked merit - jurisdiction to order applicant to apologise to respondent - part of application has no tenable basis in law

Legislation Cited:

Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997

Cases Cited:

Haas v Hosking (No 2) [2010] NSWADT 203
AT v Commissioner of Police [2010] NSWCA 131

Category:

Costs

Parties:

Cigden Aydemir (Applicant)
Sergio Redegalli (Respondent)

Representation:

Counsel
Paul Batley (Applicant)
D Rofe QC (Respondent)
Legal Aid NSW (Applicant)

File Number(s):

111007

REasons for decision

Introduction

1. EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): Ms Aydemir complained to the President of the Anti-Discrimination Board (ADB) that a large mural painted on an external wall of a building owned by Mr Redegalli breached the racial vilification provisions of the Anti-Discrimination Act 1977 ( AD Act ). The mural depicted a red ring with a red diagonal line through the middle of the ring. Inside the ring was an outline of a woman wearing a burqa and niqab. The caption on the top part of the ring said, "SAY NO TO BURQAS".

1. The President of the ADB referred the complaint to the Tribunal. At the first case conference, Ms Aydemir said that she was applying for Legal Aid NSW to represent her. The Tribunal set down a timetable and scheduled a second case conference. Ms Aydemir was granted legal aid. Prior to her filing any material, her lawyer telephoned and then wrote to Mr Redegalli's lawyer offering to discontinue the proceedings on the basis that there be no order as to costs. Mr Redegalli did not accept that offer. Ms Aydemir withdrew the proceedings and they were dismissed. Mr Redegalli now applies for costs and for a letter of apology. Ms Aydemir opposes those applications and applies for her costs in relation to Mr Redegalli's costs and apology applications. This application has been determined 'on the papers': Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76.

1. I note that both parties appear to be under a misapprehension that leave is necessary for parties to be represented by a lawyer at hearings in the Equal Opportunity Division. No such leave is required: ADT Act , s 71(1)(b).

Costs provisions

1. The Tribunal has power to award costs in relation to these proceedings: ADT Act , s 88(3) and AD Act , s 110. However, the general rule is that each party to proceedings is to bear their own costs: ADT Act , s 88(1). Costs may only be awarded if the Tribunal is satisfied that it is fair to do so having regard to the matters set out in s 88(1A): ADT Act , s 88(1A). Section 88 states the general rule and then sets out the circumstances in which it may be considered fair to award costs. Section 88 also defines the term "costs" and gives the Tribunal power to determine by whom and to what extent costs are to be paid.

88 Costs

(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.

Respondent's costs application

Basis for application

1. Mr Rofe, representing Mr Redegalli, relied on two of the considerations listed in s 88(1A) in support of the application for costs. The first was the relative strength of the claims made by each of the parties (s 881A(c)) and the second was "any other matter that the Tribunal considers relevant" (s 881A(e). In relation to the relative strength of the claims, various submissions were made as to why the complaint was unlikely to have been successful if it had proceeded. The only "other matter" that I could glean from the submissions was the time it took the applicant to withdraw the matter.

1. Mr Rofe said that his client's costs totalled $2,250 comprising $1,425 for work done in December 2010 (while the complaint was still at the ADB) and $825 for a conference after Ms Aydemir had offered to withdraw the complaint. Mr Rofe does not appear to have included the costs of him appearing for his client at a case conference before the Tribunal on 9 March 2011.

1. To ensure procedural fairness, I invited Mr Rofe to provide submissions in reply to the applicant's application for costs. When making those submissions, Mr Rofe added to his costs application the sum of $750 for a telephone conference with Mr Redegalli and the settling of the submissions in reply.

Response to costs/apology application

1. Mr Bately, counsel for Ms Aydemir, submitted that the strength of the party's claims is usually addressed after a hearing, whether it be a substantive, summary dismissal or leave hearing, when the Tribunal has come to a view as to the merits of the application. Because the application was withdrawn prior to any such view being formed, the Tribunal is not in a position to fairly assess the strength of the applicant's claim. In the alternative, Mr Batley responded to the points Mr Rofe's made about the merits of the complaint.

1. Mr Bately rejected the suggestion in Mr Rofe's letter that, "Legal Aid Authorities were not impressed by the merits of the complaint made." Mr Bately pointed out that Ms Aydemir was granted legal aid. He added that if the Tribunal proposes to make a finding as to why the application was withdrawn, he asked to be heard on that issue.

1. Mr Bately submitted that the President of the ADB, not Ms Aydemir, invoked the jurisdiction of the Tribunal by referring the complaint. However, it is apparent from the President's letter referring the complaint to the Tribunal dated 24 January 2011, that the complaint was referred on the basis that both parties wished it to be referred and the President formed the view that it was appropriate in the circumstances to do so: AD Act , s 93C(d).

1. Because Ms Aydemir's consent was required before the complaint was referred, it cannot be said that it was the President alone who invoked the jurisdiction of the Tribunal. Consequently this submission is not relevant.

1. Finally, Mr Bately submitted that awarding costs against Ms Aydemir before any evidence has been filed may have the effect of discouraging people from lodging complaints with the ADB. He said that because the complaint has been brought in the Equal Opportunity Division, which is the Division concerned with human rights, care needs to be taken not to discourage genuine applications because of the threat of a costs order: Haas v Hosking (No 2) [2010] NSWADT 203.

Consideration

1. In AT v Commissioner of Police [2010] NSWCA 131, at [33] Basten J emphasised that the general rule is that each party pays his or her own costs. However, the criterion of fairness represented a "relatively low hurdle for an applicant seeking an order." His Honour went on to say that:

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 sub-s (1A), but subject to the generality of paragraph (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.

1. The nature of the Tribunal's jurisdiction in the Equal Opportunity Division is that it is a human rights jurisdiction designed to provide a remedy for discrimination, harassment, vilification and victimisation. The objects of the ADT Act include "to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair." Both these matters suggest that in the Equal Opportunity Division, the compensatory purpose of an award of costs, will generally not be enough to make it 'fair' for costs to be awarded.

1. In this case, the applicant attended a case conference on 9 March 2011 in circumstances where her application for legal aid was pending. The Tribunal gave the applicant 6 weeks to file and serve Points of Claim and evidence in support of her complaint. This relatively generous time frame was probably given in anticipation that Ms Aydemir would receive a response to her application for legal aid in the meantime. The applicant was granted legal aid and on 27 April 2011, Ms Aydemir's lawyer telephoned Mr Redegalli's lawyer to advise that the complaint would be withdrawn on condition that there be no application for costs. That offer was confirmed by letter on the same day. Mr Redegalli rejected the offer, but Ms Aydemir nevertheless withdrew her complaint. The Tribunal was advised of her intention to do so on 16 May 2011. The complaint was formally dismissed on 1 June 2011.

1. Contrary to Mr Rofe's submission, there was no undue delay in the applicant withdrawing the complaint once she had obtained legal representation. Withdrawal in these circumstances does not constitute a concession that the application lacked merit, nor can such an inference necessarily be drawn. In the absence of a hearing where findings of fact are made and legal argument presented, it is not appropriate for the Tribunal to draw a conclusion as to the merits of the complaint.

1. Nothing about the circumstances of this case makes if "fair" for the applicant to be ordered to pay the respondent's costs.

Respondent's application for applicant to be ordered to apologise

1. Mr Rofe submitted that there would appear to be no limitation on the Tribunal making an order that Ms Aydemir apologise to Mr Redegalli for the "nasty and unjustified attack" which was "defamatory" and "hurtful".

1. The Tribunal only has the powers given to it by legislation. Mr Rofe did not identify any power that the Tribunal has to order an applicant to apologise. There is none. The Tribunal has power to order a respondent to publish an apology if it finds the complaint to have been substantiated in whole or in part: AD Act , s 108(2)(d). The Tribunal has no power to order an applicant to apologise to a respondent in any circumstances. With respect, that fact should have been patently obvious to Mr Rofe and he should not have wasted the applicant's and the Tribunal's time by raising it.

Applicant's costs application

Submissions

1. Mr Batley applied for an order that Mr Redegalli pay Ms Aydemir's costs of the costs and apology applications. He submitted that it would be fair to do so because those applications had no tenable basis and unreasonably prolonged the proceedings: AD Act , s 88(1A)(b) and (c). He relied on the correspondence between the parties, the Respondent's written submissions and the fact that most of the costs incurred by Mr Redegalli relate to the consideration of Ms Aydemir's complaint by the ADB. Because Mr Rofe did not itemise the costs of him attending the case conference on 6 March 2011, the only costs incurred by Mr Redegalli in relation to the Tribunal proceedings were incurred after 27 April when Ms Aydemir's lawyer indicated that her client intended to withdraw the complaint.

Response to application

1. When given an opportunity to respond to the applicant's application, Mr Rofe said no more than that he disagreed with the proposition that it was fair for him to pay the applicant's costs of his client's costs/apology applications.

Consideration

1. As s 88(4)(b) defines costs to include costs "of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application" a party is entitled to apply for costs incurred at the Anti-Discrimination Board as well as costs incurred before the Tribunal.

1. Mr Redegalli's application for costs and for an apology lack merit and have been refused. When considering whether it is fair to award costs, one matter to which the Tribunal may have regard is the relative strengths of each party's claim and whether a party has made a claim that has no tenable basis in fact or law. While the costs application is without merit, it had a tenable legal basis and I do not consider it fair in all the circumstances for Mr Redegalli to pay the costs of that application. The application for an apology is in a different category. I am satisfied that it is fair to order Mr Redegalli to pay the costs of that application because it has no tenable legal basis.

1. To avoid further costs being incurred in assessing these costs if they are not agreed, I have determined the amount of those costs: ADT Act , s 88(2)(a).

Order

1. The respondent's application for costs is refused.

2. The respondent is ordered to pay the applicant $500 being the costs of responding to the respondent's application for an apology.

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Decision last updated: 18 August 2011