BELL & ROBERT DE CASTELLA AND ROB DE CASTELLA’S SMARTSTART FOR KIDS LIMITED (Discrimination)
[2014] ACAT 9
•16 December 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BELL & ROBERT DE CASTELLA AND ROB DE CASTELLA’S SMARTSTART FOR KIDS LIMITED (Discrimination) [2014] ACAT 9
AA 13/20
Catchwords: APPEAL - DISCRIMINATION – reasons for removing the appeal to the Supreme Court under section 83(2) of the ACT Civil and Administrative Tribunal Act 2008: benefit of formal approach in the Court, protection of costs order for successful party, and consideration of the manner in which the appellant conducted previous proceedings against the respondents
Legislation: ACT Civil and Administrative Tribunal Act 2008, s 83
Tribunal: Ms E. Symons - Presidential Member
Date of Orders: 16 December 2013
Date of Reasons for Decision: 20 February 2014
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL
AA 13/20
BETWEEN:
WILLIAM JOHN BELL
Appellant
AND:
ROBERT DE CASTELLA and
ROB DE CASTELLA’S SMARTSTART
FOR KIDS LIMITED
Respondents
TRIBUNAL: Ms E. Symons - Presidential Member
DATE:16 December 2013
ORDER
On the oral application of the Respondents to remove the matter to the ACT Supreme Court pursuant to section 83(2) of the Civil and Administrative Tribunal Act 2008 the Tribunal orders that the matter be removed to the ACT Supreme Court.
………………………………..
Ms. E. Symons
Presidential Member
REASONS FOR DECISION
On 16 December 2013, the Tribunal ordered, on the oral application of the solicitor for the respondents, that this appeal be removed to the ACT Supreme Court pursuant to section 83(2) of the Civil and Administrative Tribunal Act 2008 (the ACAT Act). On 30 December 2013, Mr Bell (the appellant) requested Reasons for Decision (the Reasons). These are the Reasons.
The Reasons explain why the Tribunal has concluded that the appellant’s application for appeal from an ACAT decision filed on 22 October 2013 be removed to the ACT Supreme Court.
Essentially, the Tribunal has concluded that the matter is one which would be well served by the more formal approach of the ACT Supreme Court and the conduct of hearing within the procedural framework of the Court, and by the successful party to an appeal having the protection of a costs order.
Preliminary
The appellant was the applicant in discrimination proceedings against the respondent which had been referred to the Tribunal by the ACT Human Rights and Discrimination Commissioner pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act).
After hearings before the Tribunal on 25 and 26 June 2012, 23 July 2012 and 30 August 2012, the Tribunal published its Reasons for Decision and made the following orders on 26 April 2013:
(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.
On 27 September 2013 the Tribunal published its Reasons for Decision (the costs decision) and made the following orders in relation to the costs applications:
(1)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.
(2)Costs are to be calculated on the Supreme Court scale.
(3)Costs should be agreed.
(4)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 anticipate in a conference at a time and place 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 the 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 made 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.
On 8 May 2013, the Appellant filed an application for appeal. In lieu of completing the section entitled ‘Reasons for Appeal’ he filed a 35 page attachment. He stated in the attachment:
NATURE OF THE CASE
1.I wish to appeal the Tribunal decision in DT 111/27 & DT 12/01 – William John Bell v Francois Robert de Castella & SmartStart for Kids Ltd – on the ground of an apprehension of bias by the adjudicator, Senior Member Lennard, in the oral hearing and decision-making process of this case.
2.I contend that the Senior Member did not apply the rules in relation to the evidence of the parties and the general conduct of the hearing process in an even-handed manner and failed to treat the applicant and the respondents the same.
3.As a consequence, this gave rise to an apprehension of bias where a fair-minded lay observer might reasonably apprehend that the senior member might not bring an impartial mind to the questions before her to decide.
….
QUESTIONS OF LAW
4.I rely on the definition of even handed treatment identified by Justice Habersberger in Leon Holdings Pty Ltd v O’Donnell (2009) VSC 430 at 72:
5.….. [Excerpt set out]
6.I rely on the categories of an apprehension of bias identified by Justice Deane in Webb v R (1994) 181 CLR 41 at 74:
7.…. [Excerpt set out]
8.
9..I rely also on a category identified by the Senior Member at page 50, para 8 f of her Reasons for Decision..[1]
[1] The Tribunal recognises a further category: conduct in the hearing. A reasonable apprehension of bias may arise from hostility, sarcasm or aggression shown by the tribunal member towards a party, or the representative or witness for a party in the course of a hearing.
QUESTIONS OF FACT
7. Questions of fact involved in the appeal are dealt with under the following headings:
· The 2nd allegation of unfavourable treatment; Project coach remuneration
· Hearsay evidence: family always comes first
· New evidence: patronising and racist remarks
· Costs
· Non-disclosure of interests
· Sworn evidence
· The video evidence
· Credit of the parties
· Hearing the oral evidence: time constraints
· Attributes identified by the applicant
· Bullying the applicant.
[From pages 3 to 34 the appellant set out the detail of these Questions of Fact and Law]
REMEDY SOUGHT
I am seeking that the decision in DT 11/27 & DT 12/01 be set aside, and that the matters be reheard.
On 19 May 2013, the appellant, by email, notified the tribunal that he wished to lodge a further appeal by way of additional information on Question of Facts under the heading “New evidence: the DoHA grant acquittal documents.” He filed this application for appeal and a three page attachment on 20 May 2013.
On 22 October 2013, the appellant filed an Application for an Appeal against the Decision dated 27 September 2013 (the costs decision). In that Application he stated that he seeks the costs orders being set aside and dismissed. The Tribunal has summarised the appellant’s submissions in relation to costs orders (1)-(4) being set aside, as follows:
Order 1. The applicant pursued his case in good faith on the basis of the parties bearing their own costs (section 48(1) ACAT Act); he was not subject to orders relating to delay or obstruction during the hearing; he did not contravene any order during the hearing; there is no justice served by attempting to financially punish a senior citizen on a low and restricted income; he exercised his legal entitlements to discover pertinent and relevant facts including a possible negotiated outcome and it is inappropriate to attribute costs when the respondents had every opportunity to settle the matter by a simple written apology; there is an incommensurate and punitive nature to the quantum of indemnity costs in the order.
Order 2 – nullifies the interests of justice in section 49(2)(c) of the ACAT Act. He would have to engage counsel, which would be a prohibitive cost for him, as ‘costs calculated at the Supreme Court scale are legalistic, highly technical for an ordinary citizen and subject to discretion by the Court registrar.’
Order 3 – is contrary to the interests of justice as the respondent has refused to negotiate or conciliate the applicant’s request for an apology and has employed legal counsel to exploit superior knowledge of judicial procedures to prevent a just and reasonable outcome to the applicant’s claim. ‘[I]t is likely the respondents would claim a quantum of costs that would make it impossible for the applicant to agree.’
Order 4 – ‘further delays a reasonable and just outcome in the case and is contrary to the interests of justice in terms of costs and the interests of the applicant and the respondent.’
The two applications for appeal were listed for a Directions Hearing on 16 December 2013. At the Directions Hearing (the hearing) the appellant represented himself. He was accompanied by Mr Denis Smith. Ms Mulherin, Solicitor from Dibbs Barker, represented the respondents. At the commencement of the hearing, Ms Mulherin made an oral application that the matter be removed to the ACT Supreme Court pursuant to section 83(2) of the ACAT Act on two grounds:
i)for the management of the appeal and the formalized processes available with the Supreme Court and the Court Procedures Rules, and
ii)to invoke the cost protections available to successful parties on appeal to the Supreme Court.
The Appellant opposed the application. He said he wished the matter to be dealt with by the tribunal’s appeals panel “because I am aware of the nature of my grounds of appeal against the senior member’s decision. I would prefer it to be dealt with within the structure of ACAT. I am confident in its processes.”
Applicable legislation
Section 83 of the ACAT Act states:
83Removal of applications from tribunal to Supreme Court
(1)If the parties to an application or an appeal (a matter) jointly apply to have the matter removed to the Supreme Court, the tribunal must order that the matter be removed to the Supreme Court.
(2)If a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may, if it considers it appropriate, order that the matter be removed to the Supreme Court.
Submissions
Ms Mulherin submitted that the application for appeal would be well served by a more formal approach to the process of, in the first instance, drafting the grounds of the appeal; for the parties having appeal books prepared and for there to be some constraints on the way that the appeal is run that is reasonably well provided for in the Court Procedures Rules. She also submitted that a successful party would have the cost protection available on appeal in the Supreme Court. In relation to the appellant’s submission that he had tried and was unable to get pro bono representation, she submitted that there was no impediment for the appellant in representing himself in the ACT Supreme Court.
The appellant submitted that he had approached the Tribunal as it was a no-cost jurisdiction because of his financial circumstances which did not permit him to engage legal counsel. He had tried through the ACT Law Society and the Victorian Law Institute to obtain pro bono legal representation and had not been successful. He expressed his concern at being unrepresented and running the risk of further allegations of vexatious litigation as he said that he had been declared a vexatious litigant in matter DT 11/27 and had had a costs order made against him. He volunteered that “my overview of appeal document which has been prepared professionally goes to the issues of vexatious litigation.”[2]
[2] T7 lines 11-13
The appellant also submitted that he had already stated in his first Application that he wished “this matter to be dealt with in the first instance at the ACAT appeals level.”
Consideration
The Tribunal has considered the submissions from the appellant and the respondents’ solicitor.
The appellant informed the Tribunal that he had been able to engage in this litigation because it was a no cost jurisdiction. He opposes the matter being removed to the ACT Supreme Court because he is confident of the Tribunal’s processes. He is on Centrelink payments and owns the home in which he lives in Melbourne. He has tried, unsuccessfully, to obtain pro bono representation both here and in Victoria.
Ms Mulherin has based her application for the matter being removed to the ACT Supreme Court on two grounds. Firstly, she referred to the formal process of conducting matters in the ACT Supreme Court which would require the parties to file pleadings which complied with the Court Procedures Rules 2006.
It appears to the Tribunal that the appellant has adopted a scattergun approach to his appeals and sought to present “everything” he could under the label of question of law or question of fact to have another go at getting justice, as he sees it, from the respondents. It was immediately apparent that his sole goal was to have his original application reheard or in other words ‘to have another bite at the cherry’.
While, as afar as the Tribunal is aware, there presently is no limitation on the number of pages of supporting material that a party can file in proceedings provided that it contains relevant information, the Tribunal was concerned about the unnecessarily prolific way the appellant has approached this matter. Although he is no stranger to litigation, specificity and brevity do not appear to sit comfortably with him. His first application for appeal was supported by a 35 page attachment. He told the Tribunal that he had been described by the original Tribunal as vexatious.
The second ground relied on by Ms Mulherin was to invoke the cost protections available to successful parties on appeal to the ACT Supreme Court. Ms Mulherin is rightly concerned about the costs associated with the appellant continuing his litigation against the respondents.
Having considered all of the material before the Tribunal and the parties’ respective submissions, the Tribunal was satisfied that this is a matter which would be well served by the formal approach of proceedings in the ACT Supreme Court. The appellant and the respondents would be required to comply with the Court’s processes, and the appellant would be required to conduct his appeal within the Court’s procedural framework. There is no impediment for the appellant in representing himself in the ACT Supreme Court.
The Tribunal is further satisfied that Ms Mulherin’s submission in relation to the protection of a costs order for a successful party to an appeal in the Supreme Court has merit.
Conclusion
For the reasons set out above the Tribunal was satisfied that the respondents’ application to remove the matter to the ACT Supreme Court pursuant to section section 83(2) of the Civil and Administrative Tribunal Act 2008 should be granted.
………………………………..
Ms E. Symons
Presidential Member
PUBLICATION DETAILS
FILE NUMBER: | AA 13/20 |
APPLICANT: | William Jon Bell |
RESPONDENT: | Rob De Castella Smartstart for Kids |
SOLICITORS FOR RESPONDENT | Ms. S Mulherin, Dibbs Barker |
TRIBUNAL MEMBERS: | Ms E. Symons |
DATES OF HEARING: | 16 December 2013 |
PLACE OF HEARING: | Canberra |
3