Barake v Red and White Star Cabs Co-operative Limited trading as Maitland, Beresfield and Raymond Terrace Taxi Services
[2011] NSWADT 262
•15 November 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Barake v Red & White Star Cabs Co-operative Limited trading as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 262 Hearing dates: On the papers Decision date: 15 November 2011 Jurisdiction: Equal Opportunity Division Before: R J Wright SC, Judicial Member Decision: The Tribunal orders:
1. the Respondent's application for costs be dismissed.
Catchwords: Costs - Summary Dismissal Legislation Cited: Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)Cases Cited: Barake v Red & White Star Cabs Co-operative Limited trading as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222
KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8
AT v Commissioner of Police [2010] NSWCA 131Category: Costs Parties: Tarake Barake (Applicant)
Red & White Star Cabs Co-Operative Ltd trading as Maitland, Beresfield & Raymond Terrace Taxi Services (Respondent)Representation: Neisha Shepherd (Applicant)
Penmans Solicitors (Respondent)
File Number(s): 111020
REasons for decision
EQUAL OPPORTUNITY DIVISION (R J Wright SC, Judicial Member): The Tribunal has before it an application by the Respondent that the Applicant pay its costs of this proceeding.
On 16 September 2011 the Tribunal made orders in relation to the Respondent's application to have the Applicant's complaint dismissed under s 102 of the Anti-Discrimination Act 1977 ("the ADA") as follows:
1.Unless an application is made in accordance with order 2 and is successful, the complaint be dismissed in whole.
2.The Applicant have leave to file and serve an application to amend his complaint under s 103 of the Anti-Discrimination Act accompanied by all affidavits upon which he wishes to rely within 10 days of the date of these orders being made.
3.The Respondent file and serve any affidavits in reply (including evidence as to the amount of any costs that would be thrown away if leave to amend were granted) within 17 days of the date of these orders being made.
4.Any application to amend filed by the Applicant under order 2 be listed for hearing on a date to be fixed by the Registrar not earlier than 24 days after the date of these orders.
No application for leave to amend his complaint was made by the Applicant within the time specified in order 2 of those orders. Accordingly, the Applicant's complaint has been dismissed in whole.
By letter dated 29 September 2011 to the Registrar of the Tribunal, copied to the solicitors for the Applicant, the Respondent indicated that it wished to make an application for costs under s 88 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"). The Registrar gave directions as to the filing of written submissions in relation to costs and informed the parties that the Tribunal intended to deal with the application for costs on the papers without an oral hearing, under s 76 of the ADT Act. Both parties have filed written submissions and there has been no objection to this application being dealt with on the papers. The Tribunal considers it appropriate in this case to proceed under s 76.
Relevant Statutory Provisions
Section 88 of the ADT Act provides:
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 .
In respect of s 88(3) of the ADT Act, s110 of the ADA provides:
110Tribunal may award costs
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint.
Accordingly, the Tribunal has power to award costs in the present matter, which involved a complaint under the ADA.
Relevant Circumstances
The Applicant, Mr Barake, was a bailee taxi driver who worked in the Maitland area of the Hunter Valley. He was born in Lebanon and is of the Islamic religion. The Respondent, Red & White Star Cabs Co-operative Limited trading as Maitland, Beresfield & Raymond Terrace Taxi Services, was a co-operative one of whose functions was to provide radio network services to taxi drivers in the Maitland area.
On 9 March 2010 Mr Barake lodged a complaint under the ADA with the Anti-Discrimination Board ("the Board") alleging racial discrimination in employment in contravention of s 8 of the ADA. No other substantive contravention of the ADA was relied upon by the Applicant. A conciliation conference was held on 26 August 2010 but the matter was not resolved. The President of the Board referred the complaint to the Tribunal under s 93C(b) of the ADA and the President's Report was filed in the Tribunal on 1 March 2011.
The Tribunal's first case conference in the matter was held on 6 April 2011 and during that conference the question was raised whether the complaint should be based on s 8 of the ADA, racial discrimination in employment, or some other section of the Act. The conference was adjourned so that the Applicant's legal representatives could consider that matter.
On 7 April 2011, the Respondent's solicitors wrote to the Applicant's solicitors in the following terms:
We refer to the first case conference which took place yesterday before Magistrate Hennessey of the Administrative Decisions Tribunal. We are strongly of the view that your client's claim cannot succeed against our client as your client was not and has never been employed by our client.
We are of the view that your client's application should be immediately withdrawn. If the claim is not withdrawn we intend to rely on Section 88(1A)(c) of the Administrative Decisions Tribunal Act 1997 in order to obtain a Costs Order against your client on the basis that your client's claim has no tenable basis in fact or law.
On 27 April 2011, a further case conference was held at which the representative of the Applicant informed the Tribunal that the case based upon s 8 of the ADA was being maintained but the case also fell within s 10 of the ADA which relates to racial discrimination against contract workers. It does not appear, however, that s 10 was actually relied upon subsequently by the Applicant.
On 18 May 2011, the solicitors for the Respondent wrote to the solicitors for the Applicant again and said:
We put you on notice that we intend to apply under Section 102 of the Anti-Discrimination Act, 1997 for summary dismissal of your client's claim. That application will be made forthwith and we will let the Member know at the case conference which is listed to take place at 2.30pm this afternoon. We will also be seeking an indemnity costs order against your client.
At the case conference on 18 May 2011, the application under s 102 of the ADA was set down for hearing with a timetable for the filing of evidence and submissions.
When on 8 June 2011 the Respondent's solicitors served on the Applicant its written submissions in relation to the application under s 102 of the ADA, they reiterated that their instructions were to seek an indemnity costs order against the Applicant.
On 13 July 2011, the Tribunal heard the Respondent's application under s 102 of the ADA to have the complaint (relying only on a contravention of s 8(2) of the ADA) dismissed on the basis that the complaint was misconceived or lacking in substance (within s 92(1)(a)(i) of the ADA) and/or on the basis that the conduct alleged, if proven, would not disclose a contravention of the provisions of the ADA relied upon (within s 92(1)(a)(ii)). During that hearing, no application for costs was made to the Tribunal by either party.
On 16 September 2011, the Tribunal determined that on the proper construction of the words "employee" and "employer" in s 8(2) of the ADA the Applicant was not an employee of the Respondent nor was the Respondent relevantly an employer - Barake v Red & White Star Cabs Co-operative Limited trading as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222. To that extent, the complaint was misconceived. This finding also provided the basis for the Tribunal concluding that the complaint lacked substance and that, even if proved, the conduct would not amount to a contravention of s 8(2) of the ADA. As was noted in the Tribunal's reasons for decision, the only substantive provision relied upon by the Applicant at that time was s 8(2) of the ADA.
The Tribunal did not, however, find that the actual conduct alleged by the Applicant was trivial or could not constitute unlawful racial discrimination, if it was proved to have occurred in circumstances which attracted the operation of the ADA, for example conduct in relation to the provision of services - see s 19 of the ADA. For these reasons, the Tribunal held in its reasons for decision ([2011] NSWADT 222 at [74] and [75]) that:
74The Tribunal, however, does not wish to prevent a matter which may have some substance being heard if this is consistent with equity, good conscience and the substantial merits of the case. Allegations of racial discrimination such as those raised by Mr Barake are serious matters and should not be lightly dismissed. It is important that employers and providers of services ensure that their directors, staff and those for whom they are responsible comply with the ADA in carrying out their duties.
75Accordingly, before the Tribunal makes any order dismissing the complaint in its present form, it is prepared to grant leave to Mr Barake to apply within a short period to amend his complaint under s 103(1) of the ADA. ...
The Applicant did not avail himself of the opportunity given to him to seek to amend his complaint.
Submissions
In summary, the Respondent submitted that it was fair to award it the costs in the proceeding having regard to the way in which the Applicant conducted the proceedings and the relative strengths of the claims made. These two factors were said to be relevant to the exercise of the costs discretion by operation of s 88(1A)(b) and (c) respectively.
In response, the Applicant noted that no request for an order for costs was made by the Respondent at the hearing on 13 July 2011. He also drew attention to the Tribunal's Practice Note Number 22, "Costs: Guideline", and in particular paragraph 9, which " encouraged " parties to advise the Tribunal at the conclusion of the hearing if they wished to make an application for costs and which went on to state:
Parties are not encouraged to apply for costs after receiving the reasons for decision. Such an application leads to unnecessary delays in the finalisation of the matter. ...
The particular significance of this for the Applicant was submitted to be that: " Had the application for costs been made at the hearing, then the Applicant would have been put on notice that the Respondent was pursuing their costs application, and this may have affected his decision with regards to whether he wanted to amend his complaint under section 103 of the Anti-Discrimination Act. "
Further, it was submitted in summary that the Applicant's conduct of the proceeding did not fall within s 88(1A)(a) or (b). Nor did s 88(1A)(c) or (d) justify in the present case a departure from the ordinary position in the Tribunal that each party its own costs.
In reply, the Respondent correctly pointed out that the Costs Guideline did not preclude it from applying for costs after the hearing on 13 July 2011. In addition, it was also submitted in effect that the Tribunal's findings in its decision of 16 September 2011 ([2011] NSWADT 222), and especially those at [56] and [57], establish that there was no tenable basis in fact or law for the Applicant's complaint.
Is it "Fair" to Depart from the Ordinary Rule?
Section 88(1) of the ADT Act has been taken as establishing the " ordinary rule " ( KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8 at [26]) or the " general principle " ( AT v Commissioner of Police [2010] NSWCA 131 at [33]) that each party should be bear its own costs in respect of proceedings in the Tribunal.
Nonetheless, under s 88(1A), the Tribunal does have power to award costs " but only if it is satisfied that it is fair to do so having regard to " what is in effect, given the terms of s 88(1A)(e), a non-exhaustive list of relevant factors. In relation to the application of this section, the Court of Appeal has held in AT v Commissioner of Police [2010] NSWCA 131 at [33]:
That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. 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 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.
The terms of subs 88(1A) have been set out above. Section 3(b) to (g) of the ADA provide:
3Objects of Act
The objects of this Act are as follows:
...
(b)to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
(c)to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,
(d)to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal,
(e)to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,
(f)to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,
(g)to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.
Of those objects, the Tribunal considers that, in matters arising under the ADA, the most significant are (b) and (c). In particular, it is essential that the Tribunal be accessible to persons who wish to raise a complaint of unlawful discrimination. The Tribunal should bear in mind that if it became a general practice to award costs against unsuccessful applicants in ADA matters, this might well inhibit potential complainants from seeking to invoke the Tribunal's jurisdiction under the ADA and constitute at least a partial barrier to access.
In addition, the costs orders of the Tribunal should also seek to promote and ensure the efficient, effective, fair, informal and expeditious conduct of matters by the parties and their representatives. This is primarily achieved by awarding costs against a party whose conduct is not conducive to that end.
The Respondent was successful in its application under s 102 of the ADA. This by itself would not, however, normally be sufficient to entitle it to a costs order given the terms of s 88(1) of the ADT Act. In the circumstances, the Respondent submits that it would be fair to order costs in its favour having regard to s 88(1A)(b) and (c) and, in particular:
a) The way in which the Applicant has conducted the proceeding; and
b) The relative strength of the claims made by him.
Section 88(1A)(b), upon which the Respondent relies, requires that the Tribunal consider " whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings ". The Tribunal does not consider that by making his complaint and defending the application for summary dismissal, the Applicant could be said to have unreasonably prolonged the time taken to complete the proceeding.
The Respondent did not seek to rely upon s 88(1A)(a) and should not be criticised for not doing so. There was nothing in the Applicant's conduct that has been brought to my attention which could be described as conduct in the proceeding that unnecessarily disadvantaged the Respondent.
The other factor specifically identified by the Respondent as justifying an order for costs in its favour was s 88(1A)(c), namely, " 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 ".
In relation to the question of whether the Applicant's claim had no tenable basis in fact or law, it is true that the Tribunal did summarily dismiss the Applicant's complaint in whole. This only occurred, however, because the Applicant chose not to seek to amend his complaint and because the Tribunal found that on the proper construction of s 8 of the ADA there was no employer/employee relationship between the Respondent and the Applicant. The rejection of the Applicant's submissions on the meaning of " employer " did not mean that the arguments advanced by the Applicant's counsel in relation to the construction of the words " employer " and " employee " were lacking in substance or were so hopeless as to attract criticism for ever having been advanced. Indeed, the situation was to the contrary. The submissions by both counsel at the hearing of the strike out application were properly considered, appropriate in both content and length and of assistance to the Tribunal in reaching its conclusion. Although the Applicant's submissions were ultimately not accepted, it would not be correct to conclude in this case that the Applicant " made a claim that had no tenable basis in fact or law ".
The Tribunal accepts that the attention of the Applicant was drawn on a number of occasions to the difficulties that he might encounter if he relied only on racial discrimination in employment, under s 8 of the ADA. Further, he was certainly warned that if he was unsuccessful the Respondent intended to seek costs against him, even on an indemnity basis. These factors do not, however, establish by themselves that it is fair to order that costs be paid by the Applicant in this case.
The allegations of racially motivated discriminatory conduct made by the Applicant were not trivial and did not appear, as far as the Tribunal could judge from the limited material available to it on an application under s 102 of the ADA, to lack substance. The Applicant failed on what was essentially a technical ground, namely, the proper construction of the words " employer " and " employee " in s 8(2) of the ADA.
The Tribunal accepts that determining whether there is an employer/employee relationship between two parties in the circumstances that arose in this case was not a simple matter having regard to the common law and the relevant statutory provisions. In adopting the course he did, the Applicant did not overcomplicate a simple issue but rather assisted to dispose of a difficult issue expeditiously and appropriately, as did the Respondent.
For these reasons and in all the circumstances, the Tribunal is not satisfied under s 88(1A) of the ADT Act that it would be fair to award costs in favour of the Respondent in respect of the application under s 102 of the ADA or the proceeding as a whole.
Orders
Accordingly, the order of the Tribunal will be:
1.the Respondent's application for costs be dismissed.
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Decision last updated: 15 November 2011
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