BELL & DECASTELLA AND ROB DE CASTELLA’S SMARTSTART FOR KIDS LTD (Discrimination)
[2013] ACAT 66
•27 September 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BELL & DECASTELLA AND ROB DE CASTELLA’S SMARTSTART FOR KIDS LTD (Discrimination) [2013] ACAT 66
DT 11/27 and 12/01
Catchwords: DISCRIMINATION - general principles as to costs – Tribunal’s power to award costs – interpretation of sections 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 – presumptive rule that each party bear their own costs – departure from the presumptive rule
List of legislation: ACT Civil and Administrative Tribunal Act 2008
ss. 6, 7, 48 & 49
List of cases:
Bell & De Castella and Rob De Castella’s Smartstart For Kids Limited (Discrimination) [2013] ACAT 27
Calderbank v Calderbank [1975] 3 WLR 586
CIC Australia Ltd v ACT Planning and Land Authority; Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96
Gindy v Chief Minister & ACT Government and Ors (Discrimination) [2011] ACAT 67
Jarrad v Santamaria [2005] SASC 196
Kloska v National Jewish Association (Discrimination) [2009] ACAT 8
White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806
List of Texts/ David Bamford, Principles of Civil Litigation, Lawbook Co
Papers(2010)
J R S Forbes, Justice in Tribunals, third edition, The Federation Press 2010
Simon Smith "'Vexatious Litigants and their Judicial Control – the Victorian Experience" (1989) 15 (1) Monash University Law Review 48.
Tribunal: Ms J Lennard, Senior Member
Date of Orders: 27 September 2013
Date of Reasons for Decision: 27 September 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 11/27 and 12/01
BETWEEN:
WILLIAM JOHN BELL
Applicant
AND:
FRANCOIS ROBERT DE CASTELLA
Respondent
And
ROB DE CASTELLA’S
SMARTSTART FOR KIDS LIMITED
Second Respondent
TRIBUNAL: Ms J. Lennard, Senior Member
DATE: 27 September 2013
ORDER
The Tribunal Orders that:
The applicant is to pay on an indemnity basis the following costs of the respondents:
a)50% of the costs arising from the conduct of the hearing on 25 and 26 June 2012;
b)100% of the costs arising from dealing with the email correspondence generated by the applicant between 26 June 2012 and the date of this order, except for those emails which dealt with the application for disqualification of the Senior Member; and
c)100% of the costs arising from the hearing conducted on 30 August 2012.
Costs are to be calculated at the Supreme Court scale.
Costs should be agreed.
If the parties are unable to reach agreement as to costs within 21 days of the date of this order:
a)the respondents are to file and serve a bill of costs using the form provided in the Court Procedures Rules 2006;
b)the applicant is to file and serve a document setting out any objections to the bill within 7 days of service of the bill;
c)the parties are to participate in a conference at a time and place directed by a Tribunal Registrar;
d)the Tribunal Registrar is to consider the bill and any objections, and make a recommendation to the original Tribunal about the amount of costs to be paid under order 1 of these orders. The original Tribunal shall consider the recommendation of the Tribunal Registrar and make an order as to the amount of costs to be paid under order 1 of these orders; and
e)in the event that the Tribunal Registrar’s conference fails to achieve a recommendation, the matter is to be relisted before the original Tribunal, which will consider the information provided pursuant to orders 4(a) and (b) above and make an order as to the amount of costs to be paid under order 1 of these orders .
………………………………..
Ms J Lennard
Senior Member
REASONS FOR DECISION
On 26 April 2013 the Tribunal made the following orders in this matter:
1.The applications as to costs are adjourned.
2.The respondents are to file and serve submissions as to costs on or before 17 May 2013.
3.The applicant is to file and serve a response on or before 31 May 2013.
4.The applications are otherwise dismissed.
The respondents filed submissions on the question of costs on 17 May 2013. The applicant also filed submissions on 17 May 2013 and amended submissions later on the same day.
General Principles as to Costs
a)Costs are intended primarily as compensation for the successful party, not punishment for the unsuccessful party.
b)Costs awards are said to rely upon the principle that a successful party is entitled to compensation for at least some of the expenses to which they have been put by reason of the litigation.
c)An award of costs is not intended to be a comprehensive compensation for all costs incurred by the successful party: what is compensated are the legal costs including disbursements incurred by the successful party in vindicating its legal rights. It does not compensate for the disruption, distress or other financial costs that may have been associated with the litigation.[1]
d)Where there is a statutory conferral of the power to award costs, courts and tribunals exercise discretion. That discretion is absolute and unfettered unless constrained by statute. It must be exercised judiciously, not arbitrarily.[2]
Costs in ACAT
[1] David Bamford, Principles of Civil Litigation, Lawbook Co, 2010 at [11.60]
[2] Op cit at [11.50]
Sections 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 [the ACAT Act]provide:
48Costs of proceedings
(1)The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
(2)However—
(a)if the tribunal decides an application in favour of the applicant—the tribunal may order the other party to pay the applicant the filing fee for the application; or
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c)subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
(d)if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32 (2) (Frivolous and vexatious applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.
(3)For subsection (2) (d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.
Examples—holding costs
· interest and lender imposed charges associated with a loan
· costs of engaging workers and subcontractors and hiring equipment for a development
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
49Costs for contravening an order
(1)The tribunal may award costs against a party for contravening an order under section 48 (2) (c) only if satisfied that it is in the interests of justice to do so.
(2)In deciding whether it is in the interests of justice to award costs, the tribunal must consider the following:
(a)whether the contravention was deliberate or could easily have been avoided;
(b)whether (and if so, the extent to which) the contravention has affected the tribunal’s ability to hear the application promptly;
(c)the importance to the community of people being able to afford to bring applications to the tribunal.
(3)The tribunal may consider any other relevant matter.
(4)Costs are payable in accordance with the scale of costs in the rules under the Court Procedures Act 2004 applying in relation to the Supreme Court.
Section 48 (1) of the Act provides the Tribunal with a starting point or presumptive rule that each party must bear their own costs. That presumptive rule is qualified by the proviso unless this Act otherwise provides. The Act does otherwise provide in section 48, subsection (2) and section 49. The departure from the presumptive rule permitted in
subsection (2) and section 49 is prescribed, limited and, for the most part, generally speaking, relates to the conduct of a party to the proceedings. The concluding words of section 48 (1), or the Tribunal otherwise orders, confers upon the Tribunal a discretion which may be exercised in accordance with section 48 (2) and section 49 of the Act.In CIC Australia Ltd v ACT Planning and Land Authority; Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96 (31 May 2013) Justice Penfold considered the interpretation and application of section 48 of the ACAT Act. Her Honour concluded that section 48 confers a narrow costs power on the Tribunal, being the power to make the order specified in section 48 (2) and only in the circumstances specified in that provision[3].
[3] CIC Australia Ltd v ACT Planning and Land Authority; Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013 ] ACTSC 96 (31 May 2013), at paragraph 82.
The Tribunal must then determine what is meant by section 48(2)(b): if the Tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the Tribunal was dealing with the application, the Tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction.
Legislative provisions of this kind cover the manner of pursuit of the litigation and the conduct of the matter, including persistence in a hopeless line of argument, a refusal to make a concession that clearly should be made, or deliberate failure to comply with procedural directions. Such provisions do not contain a power to award costs to successful parties as a matter of course, nor do they contain a power to award indemnity, as distinct from party and party costs[4].
[4] JRS Forbes, Justice in Tribunals, third edition, The Federation Press, 2010, at 16.64
An award of costs does not automatically follow the outcome in ACAT. There must be factors evident in the matter, or in the manner in which the matter was conducted, which would justify the Tribunal moving from the presumption that each party bears their own costs. Where proceedings are “clearly frivolous and vexatious”, the Tribunal may consider an award of costs[5].
Unreasonable delay or obstruction before or while the Tribunal was dealing with the application
[5] Kloska v National Jewish Association (Discrimination) [2009] ACAT 8, at 51
The ACAT Act does not provide guidance as to what type of conduct would fall within ‘under reasonable delay or obstruction’. Neither the second reading speech nor the explanatory memorandum for the ACT Civil and Administrative Tribunal Bill 2008 provide any guidance to Tribunal members in the determination of whether an award of costs should be made. The Tribunal therefore examines case law which may assist in making such a determination.
In Jarrad v Santamaria [2005] SASC 196 (31 May 2005) the court, considering a provision which allowed an award of costs where one party had acted ‘in bad faith or unreasonably [6], awarded costs against an unsuccessful applicant where the evidence did not support the assertions made in the application, the affidavits contained significant hearsay and the unsatisfactory and misleading nature of the evidence was such as to lead to the conclusion that the proceedings were brought unreasonably.
[6] Section 189 (2a) of the Summary Procedure Act .
In White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806 (14 July 1998) the Federal Court considered the issue of whether solicitors acting for a party where proceedings were commenced with no or substantially no prospects of success, should be liable for costs. The court noted that the courts must be open to any party who claims that he or she has been wronged and seeks to vindicate a right to compel the enforcement of an obligation. The court noted that the authorities do not support the proposition that simply instituting or maintaining a procedure on behalf of a client which has no or substantially no prospect of success would invoke the jurisdiction [to award costs]. There must be something more namely, carrying on that conduct reasonably. It is not clear what is encompassed by “unreasonably” initiating or continuing procedures if they have no or substantially no chance of success. It seems to me that it involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceedings for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.[7]
[7] White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806 (14 July 1998), at page 76.
The court also noted that bringing litigation in relation to the same matter on several occasions is potentially vexatious and may amount to an abuse of process. The court stated: the concept of “abuse of process” in this context involves a party using court proceedings and procedures for a purpose unrelated to the objectives which the court process is designed to achieve. The concept of “abuse of process” was considered by the High Court in Williams v Spautz (1992) 174 CLR 509. The decision makes it clear that: “central to the tort of abuse of process is a requirement that the party who has instituted the proceedings has done so for a purpose or to effect an object beyond that which the legal process offers…. It is the predominant purpose of the litigation which is the relevant criterion and it is not necessary for the improper purpose to be the sole purpose of the litigation before abuse of process can be established.
The Federal Court noted the case of Goldsmith v Sperrings Ltd [1997] 1 WLR 478, where it was stated that court proceedings may not be used for the purpose of obtaining some collateral advantage to the applicant. It was noted, however, that if it could be shown that a litigant was pursuing an ulterior purpose unrelated to the subject matter of litigation and that, but for his ulterior purpose, he would not commence proceedings at all, then this is an abuse of process.
Application of discretion in this matter
ACAT is primarily a ‘no cost’ jurisdiction. This is consistent with the stated purposes of ACAT set out in sections 6 and 7 of the ACAT Act: that the procedures of ACAT should be as simple, quick, inexpensive and informal as is consistent with achieving natural justice and observing procedural fairness. Section 48 makes it clear that parties in ACAT should bear their own costs unless the Tribunal orders otherwise; where one party has caused unreasonable delay or obstruction before or while ACAT is dealing with the matter, then ACAT may make an order for costs. It should be noted that such a costs order is confined to those costs which arise from the unreasonable delay or obstruction.
Unreasonable delay or obstruction can arise from the manner in which the party conducts their case and would encompass bringing an unmeritorious action, where the bringing of an action amounted to bad faith or abuse of process. Bad faith may be demonstrated by
i)unsatisfactory evidence, that is where the assertions of the party are not supported by any evidence which is relevant, reliable or probative;
ii)where a party commences an action for a primary motive not related to the legal issues;
iii)where a party commences multiple actions based upon the same or largely similar facts;
iv)where the proceedings had no chance of success, and the applicant knew that; and
v)conduct of a party during the time the Tribunal is dealing with the matter where that conduct is not properly related to the progress of the matter.
The respondents submit that the following factors should be viewed by the Tribunal as sufficient to justify a departure from the presumptive rule that each party bear their own costs.
a)The transcript of the proceedings shows unreasonable delay and obstruction on the Applicant’s part, firstly, for bringing an unmeritorious claim that was admitted by the applicant to have no connection to the relevant legislation, and secondly, for drawing out the proceedings with complaints of bias and unfair process and by not properly presenting evidence.
b)The applicant is a vexatious litigant. The applicant has brought the proceedings unreasonably and has failed to show any evidence of unlawful discrimination. The applicant is using the Tribunal processes to create further costs for the respondents because he is vexed following the completion of his role in the Indigenous Marathon Project. The applicant’s persistently vexatious behaviour is evidenced by his vigorous pursuit of the respondents in other proceedings, including:
i) Fair Work Australia – C 2011/2528 – which considered allegations of unfair dismissal, discrimination on a number of grounds and employee entitlements;
ii) ACAT XD 10/1708 – a claim for mobile phone entitlements;
iii) ACAT XD 11/145 – a claim for alleged entitlements flowing from the alleged employment contract;
iv) Human Rights Commission Complaint – 001 – 1101005 – involving allegations including discrimination on the basis of political conviction, profession and race;
v) Human Rights Commission Complaint – 120401606 - complaining of discrimination as a result of the submissions made in these proceedings;
vi) ACAT DT 5 of 2013; and
vii) ACAT XD 13/522 – a claim for retrospective remuneration for the applicant’s voluntary services.
viii) The respondents note that proceedings numbered 4 (a) – (e) above have been successfully defended by the respondents.
ix) The respondents have incurred substantial legal costs repeatedly defending similar proceedings in jurisdictions that do not traditionally award costs.
x) The applicant’s case in this matter had no prospects of success, and the applicant knew that proceedings had no prospects of success.
xi) The proceedings were brought by the applicant in an effort to undermine the credibility of the respondents, the work of the respondents and the value of the Indigenous Marathon Project.
xii) The applicant’s motivation for bringing the proceedings was to annoy and harass the respondents. This is supported by evidence that the applicant endeavoured to attract media interest to his proceedings against the respondents.
The applicant primarily made submissions in relation to matters already canvassed and dealt with in the reasons for decision issued on 26 April 2013. In relation to costs the applicant appears to make the following submissions:
a)that the respondents had caused delay and obstruction in that they had resisted the applicant’s approach to conciliate the matters;
b)that the respondents had caused delay because they made an application to have the matter dismissed as vexatious; and
c)that some delay had been caused by the lack of availability of the DVD ‘Running to America’.
Is the Tribunal satisfied that there are circumstances or matters of sufficient weight which justify an order that the applicant pay the costs of the respondents? The Tribunal notes that no one factor is determinative of this issue. The Tribunal is satisfied that the conduct of the applicant caused unreasonable delay or obstruction before or while the Tribunal was dealing with the application. The applicant persisted in bringing a matter which to his knowledge had little or no chance of success; he was unable to establish that he had the relevant attributes of race or political conviction; his evidence was largely in narrative form and unsupported by any independent reliable or relevant evidence; and the Tribunal finds that he was more likely than not motivated by a desire to harass Mr de Castella rather than a genuine belief that he had been discriminated against. It would be manifestly unjust should the applicant be able to misuse the forum provided by a ‘no cost’ jurisdiction to pursue Mr de Castella in this manner and it would be equally unjust for the respondents to be left to pay all of their own considerable costs in defending a vindictive, frivolous and vexatious prosecution. In reaching its conclusion the Tribunal took into account the following.
a)The applicant failed to substantiate any of the complaints of discrimination. In the majority of these complaints the applicant failed to produce evidence that established that the conduct of the respondents amounted to unfavourable treatment; and in relation to all of the complaints, failed to establish a causal connection to the attributes of race, profession or political conviction. The applicant failed to establish that the attributes of race or political conviction were relevant to his situation. Merely being unsuccessful in the matter is not of itself enough to justify an award of costs against the applicant. However, where the applicant has produced no evidence to substantiate his claims; and where he made a deliberate choice not to call witnesses whose evidence he alleged would substantiate his claims; and where in the course of the proceedings the applicant conceded that he was unlikely to be able to establish the causal connection between the conduct complained of and the attributes he outlined, the Tribunal is entitled to consider each of these factors in determining whether to depart from the presumption that each party will bear their own costs. These factors indicate that the applicant commenced an action knowing it had little or no chance of success; and that the evidence put forward by the applicant was not relevant or probative, and was not substantiated by any independent witness. The Tribunal concludes that it is more likely than not that a primary motivation for the applicant was to harass or cause inconvenience to the respondents
b)The applicant provided as evidence the DVD ‘Running to America’. This evidence was not supplied to the Tribunal at the commencement of the hearing. The Tribunal notes that it is the applicant’s obligation to ensure that material the applicant seeks to put into evidence is available to the Tribunal. When the DVD was viewed, the applicant failed to comply with the Tribunal’s directions to provide a timeline to indicate which parts of the video supported his assertions, but chose instead to file the timeline produced as publicity material by the documentary filmmaker. Nothing in the video supported the assertions made by the applicant, save for the assertion that he had played an important role in the development of the Indigenous Marathon Project, an assertion that was conceded by the respondents and accepted by the Tribunal in the course of the first two days of hearing. Thus, the day spent viewing the DVD was time thrown away.
c)The applicant was self-represented, and was allowed a great deal of latitude in the evidence, manner of presentation of his case and cross examination. The Tribunal notes that a great deal of time was wasted on unmeritorious arguments, irrelevant and non-probative evidence and accusations of wrongdoing against the respondent Robert de Castella, his legal representative and Tribunal staff. Many of the oral and written submissions made by the applicant were at best tangential to the issues properly before the Tribunal.
d)The respondents would have incurred legal costs in dealing with the huge volume of email correspondence initiated by the applicant. This email correspondence was generated by the applicant during the time the Tribunal was dealing with the matter. The vast majority of this email correspondence was not relevant to the legal issues nor to the progress of the matter. The applicant persisted in the email correspondence despite being advised by the Tribunal that it was inappropriate.
e)This is a long-running dispute between the parties. The applicant has instituted multiple cases, each of them based upon the same evidence and assertions and characterised by a lack of success. In the course of the proceedings, the applicant spent some time accusing both the respondents and their legal representative of dishonesty and fraud.
f)In relation to the evidence presented during the hearing and the voluminous correspondence and written submissions made by the applicant during the time the matter was before the Tribunal, the Tribunal is of the view that these proceedings were not instituted for the bona fide purpose of having the Tribunal adjudicate on the issues in dispute, but were rather instituted to harass, annoy and aggravate the respondent Rob de Castella, and the allegations of discrimination were made without reasonable grounds[8]. The Tribunal finds that the application was vexatious, and to the knowledge of the applicant, without a reasonable chance of success.
g)The Tribunal further finds that the applicant did not have a genuine belief that he had been discriminated against, and that he instituted these proceedings in the face of the determination by the Human Rights Commissioner that his complaints lacked substance[9], and conceded on several occasions during the hearing of the matter that he had no chance of establishing a causal connection between the conduct complained of and the attributes identified.
h)The applicant after two days of hearing during which the majority of the evidence had been heard by the Tribunal, made an application that the Senior Member hearing the case should disqualify herself. The Tribunal notes that the applicant was not legally represented but nevertheless the application for disqualification on the grounds of bias was misconceived. The Tribunal member had made a disclosure to the parties at the commencement of this matter and the applicant had not objected. He conceded this in his application for disqualification. In those circumstances, the application had little chance of success[10]. Nevertheless, the Tribunal is of the view that parties before it ought to feel that matters of such high importance ought to be ventilated. A party ought not to feel restrained from making an application for disqualification of the member on the basis of a perception of bias by the threat of potentially adverse order as to costs.
i)ACAT, in view of the remedial nature of the Discrimination Act 1991, afforded the applicant an opportunity to present his case in full. The applicant was not legally represented, although the Tribunal notes that he is not without experience of litigation.
[8] see for further discussion of vexatious litigation Soden v Kawolski [ 2011] FCA 318 (7 April 2011), Lord Kinnaird v Field [1905] 2 Ch 306 and Isaacs case [1941] as discussed in Simon Smith "'Vexatious Litigants and their Judicial Control – the Victorian Experience" (1989) 15 (1) Monash University Law Review 48.
[9] see Gindy v Chief Minister & ACT Government and Ors (Discrimination) [2011] ACAT 67 – where the tribunal is satisfied that the applicant genuinely believes that they have been the subject of discrimination and that it was not the applicant's intention or motivation to annoy, harass, or do anything other than to pursue a legitimate grievance, the tribunal may refuse to make an order for costs against the applicant.
[10] see the appendix to the decision
The Tribunal considers that 50% of the cost of the initial two days of hearing, the entire cost of the final day of hearing and the cost of the time required to deal with the voluminous email correspondence generated by the applicant, arises from unreasonable delay and obstruction caused by the applicant.
In all the circumstances, the Tribunal is satisfied that there are circumstances or matters of sufficient weight which justify a departure from the presumptive rule that each party should bear their own costs. In all the circumstances, it is reasonable that the applicant should pay those costs of the respondents which arise from an unreasonable delay or obstruction caused by the applicant.
………………………………..
Ms J. Lennard
Senior Member
PUBLICATION DETAILS
FILE NUMBER: | DT 11/27 & DT 12/01 |
PARTIES, APPLICANT: | William John Bell |
PARTIES, RESPONDENT: | Robert Francois De Castella and Smart Start for Kids Ltd |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | Mr Robens – Dibbs Barker |
TRIBUNAL MEMBERS: | Ms J. Lennard – Senior Member |
DATES OF HEARING: | |
PLACE OF HEARING: |
Bell & de Castella and Rob de Castella’s Smartstart for Kids
Limited (Discrimination) [2013] ACAT 27
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