Battenberg v The Union Club (No 3)

[2005] NSWADT 126

CITATION:	Battenberg v The Union Club (No 3) [2005] NSWADT 126
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Andrew Battenberg RESPONDENT The Union Club
FILE NUMBER:	011069
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	03/02/2005
DATE OF DECISION:	06/08/2005
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Bolt M - Non Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4 Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 Wilde v University of Sydney (No 2) [2004] NSWADT 16
REPRESENTATION:	APPLICANT No appearance RESPONDENT K Eastman, barrister
ORDERS:	The Applicant is to pay 50 per cent of the Respondent’s costs as agreed or assessed excluding the costs of 28 April 2003, or any of the costs incurred in relation to the Respondent’s strike out motion

1 The Applicant, Andrew Battenberg, complained that the Union Club had discriminated against him and victimised him because he had made a complaint of discrimination. Those complaints were referred to this Tribunal and were dismissed in a decision published on 9 December 2004, Battenberg v The Union Club [2004] NSWADT 285. The Union Club now applies for the costs of these proceedings.

2 On 23 December 2004, the Respondent Club advised the Tribunal that it consented to the costs application being dealt with “on the papers”. The Applicant’s solicitors wrote to the Tribunal on 18 January 2005 and advised that their client objected to the matter being dealt with in this way and asked for the opportunity to make oral submissions.

3 The matter was set down for a directions hearing on 7 February 2005. No appearance was entered for the Applicant nor was the failure to appear explained.

4 At that hearing Judicial Member Britton determined that the issues for determination raised by the Respondent’s costs application could be adequately determined in the absence of the parties (s 76 of the Administrative Decisions Tribunal Act 1997) and directed the Applicant to file and serve his submissions on the Respondent’s submissions within 14 days. (The Respondent’s submissions were attached to its initiating application which was filed and served on 23 December 2004). The Registrar forwarded a copy of those directions to the Applicant’s solicitor, Mr Sal Russo, on 9 February 2005. No submissions have been received from the Applicant.

5 The Respondent applied on 7 February for the costs of that day.

Discretionary costs rule

6 Section 110(1) of the Anti-Discrimination Act 1977 (“the Act”) provides that each party to an inquiry shall pay his or her own costs. However, s 110(2) grants the Tribunal a discretion to “make such orders as it thinks fit” where it “is of the opinion in a particular case that there are circumstances that justify it doing so”.

7 The principles underlying this provision are well known and have been the subject of detailed consideration by the Equal Opportunity Division of the Tribunal: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10; Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4; Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25; Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36; Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45; Maylor (No. 2 ) v Mid North Coast Area Health Service [2001] NSWADT 118 and Wilde v University of Sydney (No 2) [2004] NSWADT 16.

8 The Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski observed at [63]-[65], that s 114 of the Act (now s 110) does not prescribe a test to be applied, but rather creates a presumption in subsection (1) and a discretion in subsection (2). The Panel cautioned that this discretion must be exercised judicially, and no authority or rule can determine whether, in any particular case, an order should be made: Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998. The Panel went on to say at [67] that in order to justify awarding costs “there has to be something over and beyond a normal course of circumstances”:

This should be understood to mean nothing other than that the presumption in section 114(1) 'must yield' when in a particular case there are circumstances justifying the making of a costs order ( Penfold v Penfold (1980) 144 CLR 311 at page 315). To similar effect, there may be in a particular case 'circumstances which justify the departure from the general rule' ( Australian Postal Commission v Dao & Anor (No 2) (1986) 6NSWLR 497 at 505).

9 Section 88 of the Administrative DecisionsTribunal Act 1997 provides that, subject to the Tribunal’s own rules and any other legislation, costs will only be awarded “if [the Tribunal] is satisfied that there are special circumstances warranting an award of costs”.

10 Practice Note 12, re-issued on 11 May 2005, deals with costs. It sets out the following examples of “special circumstances” which may warrant an order for costs under s 88(1):

whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(vii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(viii) 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.

11 To put the Respondent’s submissions in context, it is necessary to briefly set out the history of these proceedings.

12 The Applicant’s complaints were referred to the Tribunal by the President of the Anti-Discrimination Board on 4 September 2001. Mr Long, the solicitor for the Applicant at that time, requested, applied for and was granted an adjournment of the first case conference held on 25 September 2001.

13 A further case conference was held on 4 October 2001 at which directions were made for the parties to file and serve their evidence. The Applicant was to file and serve his material by 1 November 2001 but failed to do so. The Respondent consented to an extension of the deadline for compliance to 19 November 2001 but the Applicant failed to comply by this date. At the request of the Respondent the matter was re-listed for directions on 14 February 2002 to address the non-compliance.

14 On 28 February 2002, the Applicant provided the Tribunal (and apparently the Respondent) with unsigned statements and Points of Claim. A signed statement by the Applicant was later filed which contained a number of alterations to the original statement which were not “marked up”.

15 In June 2002, a summons to produce documents was issued at the request of the Respondent. The summons was directed to the Applicant. On 12 September 2002, at the Return of Summons before the Tribunal, Counsel for the Applicant, Mr Dupree, advised that a number of objections were to be made to the summons.

16 At hearing on 23 October 2002, Mr Dupree raised before the Tribunal, for the first time, his contention that the summons was in effect otiose as it had not been properly served. The Applicant led no evidence to support this contention. (See Battenburg v Chief Executive Officer & Secretary, Union Club [2002] NSWADT 219 at [8]-[10].)

17 The Tribunal observed at [47] and [48]:

[t]he arguments, when eventually put for the Applicant on both the set aside application and service issue in our opinion were unsustainable and lacked merit.

It is apparent that the determination of the issues before the Tribunal was delayed as a direct result of the conduct of the Applicant. As a result the Respondent has been put to unnecessary expense and the Tribunal’s resources wasted.

18 It is noteworthy that at the close of hearing on 23 October 2002 Mr Dupree announced that he had not brought to the hearing any of the documents listed in the summons and if the application to set aside the summons was not granted he would need to seek further instructions. (see Battenburg v Chief Executive Officer & Secretary, Union Club [2002] at [41]).

19 In a judgement handed down on 31 October 2002, the Tribunal dismissed the motion to set aside the summons and ordered the Applicant to pay the Respondent’s costs.

20 The matter was subsequently set down to be heard on 9 and 10 December 2002. On 26 November 2002, the Applicant issued three summonses in respect of an extensive range of documents returnable on the eve of the hearing. The Respondent contended that the documents sought were largely irrelevant to the matters in issue and applied to have those summonses set aside. The Applicant required some of the Respondent’s witnesses for cross-examination on its set aside application. The first day of hearing, 9 December, was taken up with arguments about the summonses.

21 At the end of the first day of hearing an amended Points of Claim was handed up that was broader in scope than the original. (see Battenberg v The Union Club [no.2] [2003] NSWADT 187 at [29] and [33].)

22 The matter was not finalised on10 December 2002 and was adjourned to a date to be fixed. There was considerable difficulty in finding agreed dates and eventually the matter was listed for three days in April 2003.

23 In March 2003, the Respondent applied for an order for security of costs. That application was dismissed: Battenberg v Chief Executive Officer & Secretary, Union Club [2003] NSWADT 88.

24 The matter proceeded to hearing and, at the close of the Applicant’s case, the Respondent applied under s 111(1) for the matter to be struck out on the ground that the Applicant’s complaints of discrimination and victimisation lacked substance. That application was dismissed: Battenberg v The Union Club [no.2] [2003] NSWADT 187.

25 After that decision was handed down there was again difficulty in finding suitable dates. The matter was eventually listed for two days in February 2004.

Submissions

26 The Respondent submits that the special circumstances referred to in Practice Note 12 exist in this case, namely:

- the Applicant's claim had no tenable basis in fact.

- the Applicant has been responsible for prolonging unreasonably the time taken to complete the proceeding and has failed to comply with various directions.

27 The Respondent argues that much of the delay in finalising this matter has been the result of the Applicant failing to comply with the directions made by the Tribunal.

28 It asserts that it made genuine attempts to resolve the issue of the outstanding costs order (made by the Tribunal in respect of the summons) order and the matter generally. It points to the Calderbank letters sent to the solicitors for the Applicant on 28 November 2002 and 16 April 2003. It points also to the settlement conference initiated by the Applicant on 10 November 2003, which was unsuccessful.

29 It contends that the Applicant’s case proceeded on the basis of supposition and speculation as to the reason for his treatment by the Club. It points to the Tribunal’s finding in Battenberg v The Union Club [2004] NSWADT 285 at [73] that “the Applicant presented as an unreliable witness whose evidence could not be accepted except when not disputed or independently corroborated”.

30 The Respondent further contends that notwithstanding the narrowing of the issues that fell to be resolved after the Tribunal had ruled on its dismissal application, the remaining hearing time was taken up by the Applicant on prolonged and unnecessary cross-examination of its witnesses.

Findings and Conclusions

31 The issue to be determined is whether the circumstances of this case warrant the exercise of our discretion, granted by s 110(2), to award costs. The Respondent, as the party seeking costs, bears the onus of proving that their case falls within one of the narrow range of exceptions to the general provision in this jurisdiction that costs do not follow the event.

32 The presumption underlying s 110 is that the unsuccessful party will not be required to pay the costs of the other side. That presumption ought not to be disturbed without good cause. A determination of whether costs should be awarded requires a balance to be struck between the “chilling effect” of too readily ordering costs against unsuccessful complainants (see Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred.

33 In this jurisdiction the rules of evidence do not apply, and the Tribunal is required to conduct matters informally, not allowing legal form and technicalities to prevail over substance. In that environment it is essential, as the Appeal Panel observed in Tu at [47], that there “be active co-operation [by all parties] with the case management discipline of the Tribunal”.

34 We do not accept the Respondent’s submission that the Applicant’s claim had no tenable basis in fact. While the Applicant’s case was not assisted by the failure to address a number of elements critical to a claim of unlawful discrimination, ultimately the resolution of the matter turned on findings based on conflicting evidence. While the scope of the Applicant’s claims was significantly narrowed following the Respondent’s dismissal application, the Tribunal nevertheless found that a prima facie case had been made out in respect of the balance of the claim: Battenberg v The Union Club [no.2] [2003] NSWADT 187. It is also to be noted that the President of the Anti-Discrimination Board did not decline to entertain the complaint under s 90 of the Act.

35 These proceedings took over three years to complete and have been punctuated by numerous interlocutory applications. The flavour of the Respondent’s submissions would suggest that the Applicant was primarily responsible for that delay. A review of the Tribunal’s file however reveals that a number of factors over which he had no control partly contributed to the length of the proceedings - for example the ten-month delay following the Respondent’s dismissal application.

36 The inescapable conclusion, however, is that the proceedings were unnecessarily extended as a result of the Applicant’s conduct of his case. Examples include non-compliance with the Tribunal’s timetable; the repeated failure to attend directions hearings (4 April 2002, 5 Septembers 2002 and 7 February 2005); the eleventh-hour request for summonses to be issued and the consequent loss of the first day of hearing; the extended cross-examination of the Respondent’s witnesses on matters of peripheral relevance to the proceedings; the lengthy examination-in-chief necessitated by the Applicant’s failure to prepare a comprehensive statement as directed, and the late service of medical evidence. A number of other examples point to what can only be described as a cavalier attitude on the part of the Applicant’s representatives to the proceedings and the Tribunal itself. See, for example, the return to the Tribunal of summonsed documents (Transcript 27 February 2004, pp1, 2; and 28 February pp 161-163).

37 There is no simple formula for determining whether, and to what extent, a party’s conduct has resulted in an opponent incurring costs beyond a level which could be considered reasonable. Sometimes the answer will be simple such as in this case where the Applicant refused to agree to the Respondent’s request that its costs application be dealt with on the papers and then failed to attend the consequent directions hearings. On other occasions the assessment will be more complex because a number of sometimes interrelated factors caused proceedings to be extended. A determination will require all the circumstances surrounding the party’s conduct to be taken into account.

38 In our view, the Applicant’s failure to comply with the directions of the Tribunal, together with the general conduct of his case, resulted in the proceedings being extended unnecessarily. This warrants the exercise of our discretion to make an order for costs under s 110(2).

39 In this matter costs have already been awarded for the hearing on the Respondent’s summons and associated directions hearings.

40 The Applicant should not, in our view, be liable to pay any of the costs incurred in respect of the Respondent’s strike-out motion. This includes the hearing of 28 April 2003.

41 Nor do we think that the Applicant ought to be responsible for all of the Respondent’s remaining costs but rather only that proportion incurred by the Respondent as a consequence of the manner in which his case was conducted. We estimate this proportion to be 50 per cent. Accordingly, we believe the Applicant should pay 50 per cent of the Respondent’s costs.

ORDERS


The Applicant is to pay 50 per cent of the Respondent’s costs as agreed or assessed excluding the costs of 28 April 2003, or any of the costs incurred in relation to the Respondent’s strike out motion.