Chand v Rail Corporation of New South Wales No 3

[2010] NSWADTAP 11

Appeal Panel - Internal

CITATION:	Chand v Rail Corporation of New South Wales (No 3) [2010] NSWADTAP 11
PARTIES:	APPLICANT Bimla Chand RESPONDENT Rail Corporation of New South Wales
FILE NUMBER:	079026
HEARING DATES:	4 November 2009 and 5 February 2010
SUBMISSIONS CLOSED:	5 February 2010
DATE OF DECISION:	2 March 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Smyth M - Judicial Member; Monaghan-Nagle L - Non-Judicial Member
CATCHWORDS:	Costs - power of Appeal Panel to award costs in relation to proceedings at first instance - suppression of names of respondent’s witnesses.
DECISION UNDER APPEAL:	Chand v State Rail Authority [2007] NSWADT 90
FILE NUMBER UNDER APPEAL:	051080
DATE OF DECISION UNDER APPEAL:	03/01/2010
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Blake v Norris [1990] 20 NSWLR 300 Amaca Pty Ltd v Cremer (as executor of the estate of the late Winifred Cremer) [2006] NSWCA 164 NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23 Calderbank v Calderbank [1975] 3 ALL ER 333 Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72 Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263 Hingston v Lynch (EOD) [2010] NSWADTAP 1 Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201 LD v Director General, Department of Education and Training and anor [2009] NSWADT 14 State of New South Wales (Justice Health) and another v Dezfouli [2008] NSWADTAP 69 Z v University of A, Dr D & B (No 4) [2002] NSWADT 14
REPRESENTATION:	APPELLANT In person RESPONDENT K Nomchong, counsel
ORDERS:	1. Leave is granted for RailCorp to appeal out of time against the Tribunal’s failure to determine its costs application in relation to two adjournments at first instance 2. Leave is granted for the appeal to extend to the merits of the Tribunal’s failure to determine RailCorp’s costs applications in relation to two adjournments at first instance 3. Ms Chand is to pay RailCorp’s costs of the two adjournment applications as agreed or as assessed under the Legal Profession Act 2004 4. The remaining applications for costs are refused 5. RailCorp’s application for suppression and related orders is refused.

REASONS FOR DECISION

Introduction

1 These proceedings relate to several applications for costs under s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act) and to an application for a suppression order. The Tribunal at first instance dismissed Ms Chand’s complaints of discrimination and harassment against RailCorp without making any order as to costs: Chand v State Rail Authority [2007] NSWADT 90. In particular, the Tribunal did not address, in its reasons for decision, applications by RailCorp that Ms Chand pay its costs in relation to two successful adjournment applications. We refer to RailCorp’s costs applications to the Tribunal at first instance as the ‘adjournment costs applications’. Nor did the Tribunal give the parties an opportunity to make an application for costs after the decision was handed down. RailCorp had foreshadowed during the hearing that if the complaints were dismissed, it intended to apply for the costs of the entire proceedings. After the hearing, Ms Chand’s counsel wrote to the Tribunal indicating that she wished to apply for costs when the decision had been handed down. We refer to these applications as the ‘foreshadowed costs applications.’

2 Ms Chand appealed to the Appeal Panel against the Tribunal’s decision to dismiss her complaints. After extending the appeal to the merits of the Tribunal’s decision on certain issues, the Appeal Panel dismissed the appeal and ordered that any application for costs be made within 28 days of the date of the decision: Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27. RailCorp applied for costs in relation to the appeal and in relation to the entire proceedings at first instance. Ms Chand also applied for her costs in relation to the first instance proceedings and in relation to the Appeal Panel proceedings. In summary, the parties now make the following costs applications before the Appeal Panel:

1. that Ms Chand pay RailCorp’s costs of the two adjournment applications at first instance;

2. that Ms Chand pay RailCorp’s costs in relation to the entire proceedings at first instance;

3. that Ms Chand pay RailCorp’s costs in the Appeal Panel proceedings;

4. that Ms Chand pay RailCorp’s costs of making the applications set out in 1-3 above;

5. that RailCorp pay Ms Chand’s costs in relation to the entire proceedings at first instance; and

6. that RailCorp pay Ms Chand’s costs in the Appeal Panel proceedings.

3 RailCorp has also applied for a suppression order in relation to the names of their witnesses and other employees and for its costs in relation to that application. We deal firstly with the applications for costs listed above and then with the application for a suppression order.

Costs provision

4 Section 88 of the ADT Act states that:

(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.

5 Section 88 in its present form commenced on 1 January 2009. The amended provision applies to “applications and proceedings that were made or commenced, but not finally determined before the commencement of the substantive amendment concerned”: ADT Act Schedule 5, Part 11, Cl 43. RailCorp’s costs applications were made on 25 May 2009, five months after the amended provision came into effect. The adjournment costs applications were made, but not finally determined, before 1 January 2009. Ms Chand queried whether parliament was entitled to enact legislation which had a retrospective effect. She did not put any submission to the Appeal Panel in relation to that concern and we are satisfied that s 88 as amended is the relevant provision.

Issues

6 The Appeal Panel has jurisdiction to award costs under s 88 in relation to the ‘proceedings before it’. An issue arose as to whether those proceedings include the entire proceedings at first instance. If not, RailCorp sought an extension of time to appeal against the failure of the Tribunal at first instance to address its adjournment costs applications: ADT Act, s 113(3)(b).

7 The questions and the answers we have reached can be summarised as follows:

1. Does the Appeal Panel have jurisdiction to hear the adjournment costs applications made at first instance? No.

2. Should the Appeal Panel give leave for RailCorp to appeal against the Tribunal’s failure to make a decision in relation to those applications even though the applications are out of time? Yes.

3. Did the Tribunal err by not determining the adjournment costs applications and should the appeal be extended to the merits in relation to that failure? Yes.

4. Should Ms Chand be ordered to pay RailCorp’s costs in relation to the two adjournments? Yes.

5. Does the Appeal Panel have jurisdiction to hear the foreshadowed costs applications? No.

6. Should the Appeal Panel order that Ms Chand pay RailCorp’s costs in relation to the Appeal Panel proceedings? No.

7. Should the Appeal Panel order that RailCorp pay Ms Chand’s costs in relation to the Appeal Panel proceedings? No.

8. Should the Appeal Panel order that Ms Chand pay RailCorp’s costs in relation to its costs applications? No.

Does the Appeal Panel have jurisdiction to hear the adjournment costs applications made at first instance?

8 Adjournment costs applications. Ms Chand successfully applied for the hearing to be adjourned on two occasions. RailCorp applied for its costs in relation to those adjournments. The Tribunal reserved its decision but did not determine the costs applications in its written reasons. While Ms Chand asserted that her counsel also applied for costs in relation to the adjournment applications, the transcript records her counsel as saying ‘I could make my own costs application, but I don’t think it’s necessary.’ (Transcript of 24 November 2006, page 55, line 34.)

9 Jurisdiction. At the hearing on 4 November 2009 in relation to the costs applications, the Appeal Panel raised the issue of whether it had jurisdiction to entertain the application for costs in relation to the proceedings at first instance. The parties were given an opportunity to file and serve written submissions on that issue.

10 Ms Chand’s submission. Ms Chand submitted that the Tribunal's silence in the reasons for decision in relation to RailCorp’s adjournment costs applications means that it had decided not to make those orders. Ms Chand pointed to parts of the transcript of proceedings as indicating the Tribunal’s attitude to an application for costs. Regardless of any indication by the Tribunal of its preliminary views during the course of the proceedings, it did not make a decision about costs either orally or in its written reasons for decision.

11 RailCorp’s submissions. RailCorp submitted that the term ‘proceedings’ in s 88 of the ADT Act incorporates the whole of the proceedings before the Appeal Panel including the hearing at first instance and any interlocutory applications. RailCorp supported that construction with arguments relating to the meaning of ‘proceedings’, the definition of costs in s 88 and the implications of Practice Note 22.

12 Meaning of ‘proceedings’. Counsel for RailCorp submitted that although the word ‘proceedings’ in s 88 is not defined, it is clear that the term relates to the whole of the matter before the Tribunal, whether constituted at first instance or as the Appeal Panel. The word ‘Tribunal’ is defined in s 4 as being the ‘Administrative Decisions Tribunal of New South Wales established by the Act’. As such it incorporates the Tribunal in whatever capacity in which it sits: ADT Act, s 24. There is no reference in s 88 or elsewhere to any particular manifestation of the Tribunal (Appeal Panel, Tribunal at first instance) having different powers to award costs. RailCorp’s submission goes on to analyse the manner in which the term ‘proceedings’ is used elsewhere in the ADT Act.

13 The word ‘proceedings’ is a general one and is capable of such a variety of meanings that dictionary definitions are not of much use: Blake v Norris [1990] 20 NSWLR 300 at 306 per Smart J; Amaca Pty Ltd v Cremer (as executor of the estate of the late Winifred Cremer) [2006] NSWCA 164 at [75]. As with any exercise in statutory interpretation the context in which the term appears and the intention of the legislature are pivotal. Section 88 states that, ‘The Tribunal may award costs in relation to proceedings before it . . .’ The proceedings before the Appeal Panel are appeals commenced pursuant to s 113 of the ADT Act either on a question of law or, with leave, on the merits of the Tribunal’s decision. Section 113 states that:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal under this Part:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
(2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against the exercise of an interlocutory function (within the meaning of section 24A) by of the Tribunal except by leave of the Appeal Panel.

14 The only proceedings ‘before’ an Appeal Panel are appeals on any question of law and, with leave, appeals as to the merits of the Tribunal’s decision. In relation to appeals on questions of law, the Appeal Panel must ‘determine the appeal’: s 114. Similarly, if leave is granted to appeal on the merits, the Appeal Panel is to decide what the correct and preferable decision is: s 115.

15 RailCorp recognised that the powers of the Appeal Panel in relation to appealable decisions are constrained by s 113, 114 and 115 but said that the power to make costs orders under s 88 are not so constrained. That submission does not take into account the fact that the Appeal Panel only has power to make a costs order in relation to proceedings ‘before it’. Apart from the aspects of the Tribunal’s decision with which the Appeal Panel dealt after extending the appeal to the merits of the Tribunal’s decision, the proceedings before the Tribunal at first instance were never ‘before’ the Appeal Panel. Only the appeal was ‘before’ the Appeal Panel. There is nothing to suggest that the legislature intended any different interpretation.

16 Definition of costs. RailCorp’s second submission was that the definition of ‘costs’ in s 88(4) is not comprehensive but includes ‘costs of or incidental to proceedings in the Tribunal’. Because the definition is not restricted to any particular application before the Tribunal, RailCorp said that the definition extends to the costs of the entire proceedings as well as the costs application itself. Again, we do not accept that submission because the Tribunal’s power to award costs, however defined, is a power which is confined to the proceedings before it.

17 Implications of Practice Note. Finally, RailCorp submitted that the Tribunal’s Practice Note 22 leaves open the possibility of the Appeal Panel determining an outstanding application for costs at first instance. The Practice Note states that:

The costs rules that apply at the Divisional level also apply to proceedings before the Appeal Panel. . . .If an appeal is lodged while the Divisional Tribunal still has before it an application for costs, normally the Divisional Tribunal will decide the costs application so that finality is achieved at that level.

18 RailCorp’s submission was that while the Practice Note suggests that it is desirable that the Tribunal determine any costs application before an appeal is heard, it is not mandatory. According to RailCorp, that leaves open the possibility of the Appeal Panel determining a costs application that was made a first instance. We do not accept that interpretation of the Practice Note. In our view, the implication from the Practice Note is that if the Tribunal at first instance does not determine the costs application before the appeal is resolved, it will need to do so after the Appeal Panel has handed down its decision, if the application is still pressed.

19 Conclusion. The Appeal Panel has power to entertain costs applications in relation to proceedings ‘before it’. The applications for adjournment were not proceedings before the Appeal Panel. Consequently we have no jurisdiction under s 88 to entertain RailCorp’s adjournment costs applications.

Should the Appeal Panel give leave for RailCorp to appeal against the Tribunal’s failure to make a decision in relation to the adjournment costs applications even though the application is out of time?

20 Principles for determining leave out of time. The general rule is that an appeal must be made within 28 days after the Tribunal gives the party reasons for the decision. However, the Appeal Panel may allow an appeal to be made out of time: ADT Act, s 113(3). Such an application should be assessed in accordance with the interests of justice in the circumstances: NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23 at [5]. Relevant considerations include the length of the delay, the reasons for the delay, diligence in lodging the application after it came to notice that there were circumstances justifying an appeal, the nature of the decision below, any prejudice to the other party and the merits of the grounds of appeal: Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [6].

21 Length of the delay. The Tribunal’s reasons for decision were given on 17 April 2007. The time for lodging an appeal was by 15 May 2007. RailCorp is seeking to appeal on 4 November 2009, two and a half years late.

22 Reasons for delay. RailCorp says that while they were aware that the Tribunal had not determined its costs applications, they did not file an appeal against that failure because they were under the impression that the issue of costs at first instance and on appeal could be dealt with at the completion of the proceedings. It was RailCorp’s view that the Appeal Panel had jurisdiction to determine an application for costs in relation to the proceedings at first instance.

23 Diligence of RailCorp. RailCorp says that it was unaware until 4 November 2009 that the Appeal Panel may take the view that it did not have jurisdiction to deal with costs at first instance. RailCorp immediately applied for an extension of the time should its primary submission about jurisdiction not be accepted.

24 Nature of decision below and effect on RailCorp. If the Appeal Panel does not accept RailCorp’s application out of time it will be deprived of a determination in relation to its adjournment costs applications.

25 Prejudice to Ms Chand. RailCorp submitted that there would be no prejudice to Ms Chand because both parties have made an application for costs of the entire Tribunal proceedings. However, the application for leave to appeal out of time only relates to the failure of the Tribunal to determine the adjournment costs applications. Ms Chand would clearly be prejudiced by the possibility of a costs order being made against her if the appeal is accepted out of time.

26 Merits of the grounds of appeal. The Tribunal failed to exercise its jurisdiction by not determining the adjournment costs applications. That failure amounts to an error of law which would justify the Appeal Panel either remitting the matter to the Tribunal at first instance or determining the applications itself.

27 Conclusion. Although the appeal is significantly out of time, it was not unreasonable for RailCorp to have assumed that it could seek costs on appeal. As far as we are aware, that particular issue has not previously been decided. RailCorp should not be deprived of a determination in relation to its applications in circumstances where it was genuinely under the impression that it would be able to re-new its applications before the Appeal Panel. As soon as it became aware of the possibility that the Appeal Panel did not have jurisdiction to entertain its application, RailCorp applied for an appeal to be accepted out of time. We have concluded that the appeal has merit. While Ms Chand is prejudiced in the sense that granting leave opens the way to a costs order being made against her, she has also had the opportunity to apply for costs orders against RailCorp. In all the circumstances it is in the interests of justice that leave should be granted to allow RailCorp to appeal out of time against the Tribunal’s failure to determine its adjournment costs applications.

Did the Tribunal err by not determining the costs application and should the appeal be extended to the merits in relation to that failure?

28 A failure to exercise jurisdiction is a fundamental error of law. Given the extensive delays that have already characterised these proceedings, we give leave for the appeal to extend to the merits in order to determine those applications: ADT Act, s 113.

Should Ms Chand be ordered to pay RailCorp’s costs in relation to the two adjournments?

29 On 26 October 2006 Ms Chand applied for 11 hearing days commencing on 1 November 2006 to be vacated. Directions had been made for the filing and service of pleadings and evidence. Those directions were vacated on 9 August and further directions made. On 9 October 2006, RailCorp applied to the Tribunal for an extension of the timetable because Ms Chand had filed her material out of time. On 12 October 2008, RailCorp was given until 18 October to file the remainder of its material and Ms Chand was given until 25 October to reply. The hearing dates remained unchanged. RailCorp filed Ms Messenger’s affidavit (annexing 4 volumes of material) on 18 October 2006 in accordance with the timetable.

30 On 23 October Ms Chand wrote to the Tribunal requesting that the hearing dates be vacated. That application was heard on 26 October 2006. The Tribunal granted the application in part by vacating the first three days of hearing, 1, 2 and 3 November. The hearing was then re-scheduled to take place for 8 days from 6 – 15 November. On 6 November, Ms Chand again applied for an adjournment which was initially refused but granted after lunch when new counsel appeared. The matter was listed to resume on 9 November. The matter was ultimately heard over 6 days: 6, 9, 10, 13, 15 and 24 November. Five days were vacated, 1, 2, 3, 7 and 8 November.

31 The grounds for the first adjournment application are summarised in RailCorp’s submissions of 2 October 2009 as follows:

a) Ms Chand no longer had legal representation;

b) Ms Chand was obtaining an affidavit from a witness named Andrew Lynch (no affidavit was ever filed);

c) if the matter were adjourned Ms Chand would ask Mr Oliveri to act for her again;

d) Ms Chand wanted time to prove that documents submitted by RailCorp were ‘re-created’;

e) Ms Chand was unable to deal with the material filed by RailCorp, in particular the affidavit from Ms Messenger filed on 18 October 2006;

f) documents had not been produced by RailCorp in response to a summons (even though the production of those documents had been previously the subject of a ruling by the ADT); and

g) some documents had not been delivered to her by her previous solicitors.

32 The Tribunal granted that application. It is useful to set out in full the Tribunal’s oral reasons for decision on 26 October 2006:

Firstly, so far as the applicant Ms Chand is concerned she brings this application because she finds herself in the position where although she's had two solicitors involved in this matter the most recent solicitor Mr Oliveri has only advised her earlier this week that he would not be in a position to continue to act for her. Ms Chand has advised the Tribunal that the consequence of that advice is that she is now without representation and if the matter proceeds on this occasion to a hearing she would need to be unrepresented during that hearing. Ms Chand has drawn to the Tribunal's attention the prejudice that she is concerned that she would suffer by being required to prepare herself without legal assistance for that hearing and that would involve her amongst other things but in particular in familiarising herself with a large number of documents which were only filed or served on her by the respondent or by her then solicitor on 18th of October. No criticism is levelled at the respondent’s solicitors or legal representatives for that lateness because that was in accordance with directions given by this Tribunal.

The applicant has pointed out and quite properly that from her point of view in effect from the 23rd of October, the date on which she received the documents personally, she has had little time to assess those documents and prepare either her own evidence or evidence of prospective witnesses who may be able to support the case that she’ll put to the Tribunal. In response to those matters put by the applicant, Counsel for the respondent has drawn to the attention of the Tribunal the history of the development through case conferences at this Tribunal, the timetables set with the concurrence of the applicant’s then legal representatives and which included in particular the setting down of . . .the 11 days for the hearing of this matter commencing on the 1st of November. That direction was given at a case conference before this Tribunal on 10 May 2006. In effect the applicant would or should have known of the hearing dates at least for a period of six months.

The applicant has also drawn the Tribunal's attention to what could be said to be the voluminous nature of the material that has been served by the respondent on the 18th of October. In relation to those documents Counsel for the respondent points out that the documents do not contain material that would be novel to the applicant as the material in those documents is material that has previously been disclosed in proceedings before the Industrial Relations Commission. Those proceedings were between the present parties to this matter. The applicant also is concerned about documents which she claims she has not seen and which were the subject of a summons or summonses to produce. The counsel for the respondent referred to a case conference before this Tribunal held on 15th of February 2006 in which Judicial Member Britton gave directions concerning the production of documents which excluded certain documents that were the subject of orders under the Freedom of Information Act.

The respondent states that the documents that were directed to be produced were in fact lodged with the registry of this Tribunal in some cases before and maybe in some cases soon after 15 February 2006. The applicant on the other hand states that although she has sought access to those documents at the registry, the registry has not been able to locate those documents. This in itself is not a matter that would justify adjourning the hearing but it is a matter that should be investigated to ensure that the documents that have been produced are made available to Ms Chand immediately.

In summary, the situation that is before the Tribunal today involves a balance between the degree of prejudice that may be suffered by the applicant on the one hand by having to proceed to present her complaints to the Tribunal on the 1st November . . . and on the other hand the prejudice which the respondent has put before the Tribunal in written submissions that were handed to the Tribunal in this present application. The further important aspect in the consideration of the balance of those prejudices is the fact that this Tribunal, in the case conferences that have been held concerning the management of the hearing of this matter, has stressed that the hearing dates would not be vacated except in the most extreme circumstances.

The Tribunal is not convinced that the situation relating to Ms Chand is such an extreme circumstance that the prejudice that she points to overrides the prejudice that the respondent would suffer if the matter does not proceed and the disruption to the program of this Tribunal if the matter did not proceed. However in deference to the situation that Ms Chand finds herself in, this Tribunal considers that some concession should be made to her and that she should be given some additional time to prepare for the hearing but without unduly interfering with the program that was set down for the hearing back on 10 May 2006. Accordingly, it is the view of the Tribunal that the hearing dates for this matter which were set down to commence on 1st November would be postponed so that the first hearing date will be Monday 6 November and that the hearing will proceed for the balance of the dates fixed that is through to the 15th of November. The Tribunal so orders. (Emphasis added.)

33 In relation to the second successful application for an adjournment made by Ms Chand’s new counsel, Ms Gormly, on the afternoon of 6 November 2006, the extent of the Tribunal’s reasons were as follows:

IRELAND: It's my reluctant assessment, I say reluctant because it goes against, I think, the wishes of this tribunal that matters before it be disposed of at the quickest opportunity. But having regard to the requirements of natural justice I think we might have to give you that extra time. Ms Nomchong I've cut across what you were saying, I'm sorry. I got your message though, you don't like it. . . .

IRELAND: But I still feel that given all the circumstances we don't have a lot of choice, we don’t have any choice really, but to grant Ms Gormly this extra time to prepare. But Ms Gormly, and I say this to you and particularly to Ms Chand, I will not entertain any further applications. Ms Chand, I want you to understand that, I've said this to you till I'm blue in the face, I must be going red in the face, because you've made innumerable applications for adjournment and they've been disallowed. It's only out of deference to Ms Gormly's that we're considering vacating these extra days.

It's probably no comfort to you to reserve your position on costs for those days, but I'm prepared to do that, but in the long run it may not be of much worth. But certainly there will be that aspect to it. I think technically that I have to hear argument forward, but you may well be entitled to order for these days.

NOMCHONG: Well, certainly we will maintain our position in relation to costs. The only thing I wanted to say, your Honour, is that the first application for adjournment was made by Mr Oliveri--

. . .

IRELAND . . . it is the order of this Tribunal that at the request of Ms Gormly acting now for the applicant, we will vacate the further hearing of this matter until 10am on Thursday morning. I reserve to the respondents the right to make an application for an order for costs for these three days, Monday, Tuesday and Wednesday, but that's a reserving of the application for costs and we will hear argument from the parties concerning that application at the end of the hearing of the matter before the Tribunal.

34 The parties made further submissions at the end of the hearing.

35 Ms Chand’s main submission in response to the application for costs is that the affidavit of Ms Messenger, which RailCorp filed on 18 October 2006, annexed four volumes of material. That was the reason, she said, that her solicitor Mr Oliveri, ceased to act for her and which prompted her to apply for an adjournment of the proceedings. RailCorp withdrew any reliance on Ms Messenger’s affidavit on the final day of the hearing. RailCorp says that it did not need to rely on the material in the affidavit because the evidence contained in that affidavit had been given during cross-examination of witnesses. RailCorp also pointed out that three of the four volumes of material attached to Ms Messenger’s affidavit were Ms Chand’s own emails, so that material could not have taken her by surprise. Secondly, the same material had been served on Mr Oliveri a month earlier in related proceedings before the Industrial Relations Commission.

36 In addition to the submissions made to the Tribunal, RailCorp says that the reasons advanced in relation to the adjournment applications, summarised above at [31], were not made good. According to RailCorp, Ms Chand’s conduct in making vexatious, unfounded or unsubstantiated claims in support of her adjournment applications is a relevant factor in support of a costs order being made against her.

37 The Tribunal may award costs against Ms Chand in relation to the adjournments granted by the Tribunal if it is fair to do so: ADT Act, s 88. It may be fair to do so, where, for example, the adjournment came about through no fault of RailCorp. RailCorp served its material, in accordance with the Tribunal’s directions, on 18 October, two weeks before the hearing was due to commence. Ms Chand’s solicitor, Mr Oliveri, apparently formed the view that he was unable to respond to the material in that time and would not be able to continue to act for Ms Chand. Although we do not have the benefit of hearing directly from Mr Oliveri, it is a concern that he chose to cease to act rather than applying for the adjournment himself. That concern is reinforced by the fact that he resumed acting for Ms Chand on 9 November, after the adjournment had been granted. We agree with RailCorp that the remaining reasons put forward by Ms Chand as justifying an adjournment were not made out. In any case, whether it was Mr Oliveri or Ms Chand who ‘caused’ the adjournment, Ms Chand did not submit that any costs order should be made against Mr Oliveri personally rather than against her. In all the circumstances it is fair for Ms Chand to pay the costs of the adjournment. That conclusion is supported by the Tribunal’s comment that the adjournment was granted, not because of the prejudice to Ms Chand of refusing the application but merely ‘in deference to the situation Ms Chand finds herself in’.

38 In relation to the second adjournment, the Tribunal felt compelled to give new counsel, Ms Gormly, an opportunity to prepare for the hearing. Ms Chand had been ready to proceed with Mr Oliveri representing her on 1 November, but for the filing of Ms Messenger’s affidavit. The fact that Ms Chand chose to engage counsel at such a late stage is not a decision about which RailCorp should be out of pocket. RailCorp was disadvantaged on each occasion because they came ready to proceed with the matter. In all the circumstances, it is fair that Ms Chand pay RailCorp’s costs arising from the adjournment applications. We note that although originally listed for 11 days, the matter was ultimately heard over 6 days.

Does the Appeal Panel have jurisdiction to hear the foreshadowed costs applications?

39 Although RailCorp and Ms Chand foreshadowed that they would make an application for costs of the entire proceedings before the Tribunal those applications were not made. It was not until after the Appeal Panel handed down its final decision that each party formally made those applications. As the Appeal Panel only has power to make a costs order in relation to proceedings ‘before it’ and the entire proceedings at first instance were not before us we do not have jurisdiction to entertain the applications. More detailed reasoning in relation to this issue is set out at [12] to [19] above.

Should the Appeal Panel order that Ms Chand pay RailCorp’s costs in relation to the Appeal Panel proceedings?

40 Background. RailCorp applied for costs in relation to the proceedings before the Appeal Panel. That application was supported on the basis of its offers of compromise, Ms Chand’s non-compliance with the timetable, the lack of merit of the appeal and the offensive and improper allegations made by Ms Chand. Ms Chand opposed the application saying it was an abuse of process.

41 Offers of compromise. RailCorp made numerous offers to Ms Chand to settle the proceedings at first instance and, following the appeal, the appeal proceedings. In particular, on 27 January 2006, RailCorp offered to settle the first instance proceedings by the payment of $16,000 to Ms Chand. A number of offers were subsequently made to settle both the first instance proceedings and the concurrent proceedings in the Australian Industrial Relations Commission (AIRC). Four offers were made during the period of 13 April 2006 to 13 July 2006 to settle both the first instance proceedings and the AIRC claims for $30,000. Later offers were made to settle the first instance proceedings for $20,000 and then $10,000.

42 In relation to offers to settle the appeal, those offers were also made ‘without prejudice save as to costs. ’ Letters dated 7 October 2009, 23 October 2009 and 30 October 2009 were admitted without objection at the hearing on 4 November 2009. Ms Chand objected to a subsequent letter dated 1 February 2010, bearing the same heading. We admitted that letter as the authorities on which Ms Chand relied in support of her objection did not stand for the proposition that letters bearing such a heading should not be admitted. We also admitted an email from Ms Chand to the Chief Executive Officer of RailCorp and a letter from her dated 28 January 2010 rejecting RailCorp’s offer. The latest offer to Ms Chand was made on 1 February 2010. Essentially RailCorp agreed to discontinue all costs applications and not to enforce orders for costs in other proceedings in return for Ms Chand withdrawing her appeal to the Court of Appeal, consenting to the suppression application and signing a Deed of Release in the usual terms. Ms Chand rejected that offer.

43 Significance of offers to settle. The fact that an offer of settlement has been made and refused is not a factor listed in s 88 as relevant when determining whether it is fair to make a costs order. Nevertheless, the Tribunal may take into account any matter that it considers relevant: s 88(1A)(e). In costs applications in the Retail Leases Division the Tribunal has taken into account the fact that:

(a) a successful party in proceedings has made an offer of compromise of the dispute before the conclusion of the proceedings;

(b) the unsuccessful party has unreasonably rejected the offer; and

(c) the terms of the offer were more favourable to the unsuccessful party than the orders made by the Tribunal.

44 This approach is analogous with costs rules in the Supreme and District Courts and the principles laid down in Calderbank v Calderbank [1975] 3 ALL ER 333: see Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72. Those principles have also been taken into account in proceedings in the Equal Opportunity Division: Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263 (13 October 2009); Hingston v Lynch (EOD) [2010] NSWADTAP 1 (7 January 2010). RailCorp submitted that when deciding whether to make a costs order the Appeal Panel should take into account the fact that Ms Chand declined offers of settlement that would have been more advantageous to her than the current outcome.

45 The offers of compromise made at first instance are not relevant to an application for costs in relation to the Appeal Panel proceedings. The only application before the Appeal Panel is an application for costs in relation to the appeal. Putting to one side Ms Chand’s appeal to the Court of Appeal, the terms of RailCorp’s offer of compromise in the Appeal Panel proceedings are more favourable to Ms Chand in monetary terms than the orders we have made. Ms Chand is now liable for the costs of her two adjournment applications at first instance. However, the making of an offer to settle, essentially on the basis that each party walks away from all proceedings, is not an offer which, in the circumstances of this case, justifies departing from the ordinary costs rule.

46 Non-compliance with timetable. On 30 May 2007, the Appeal Panel issued a timetable requiring Ms Chand to file submissions by 28 June 2007. After consulting the parties a hearing date was fixed for 21 August 2007. On 18 June Ms Chand requested an extension of one week (to 5 July 2007) to lodge her submissions and the Appeal Panel granted that request. Having not received the transcript of the Tribunal proceedings by the anticipated date of 20 June, Ms Chand applied for a further extension of the timetable and an adjournment of the hearing date until 4 to 6 weeks after receiving the entire transcript. The Appeal Panel allowed Ms Chand until 20 July 2007 to file her submissions but directed her to provide the further and better particulars requested by RailCorp by 6 July 2007. The adjournment application was stood over to the hearing date on 21 August. Ms Chand responded to the request for further and better particulars within time. In her application for an adjournment on 21 August, Ms Chand submitted that she had been involved in concurrent proceedings before the Australian Industrial Relations Commission, she did not have access to the entire transcript for a sufficient time to prepare her written submissions and she was not legally represented. The Appeal Panel refused the application for an adjournment. RailCorp did not submit that Ms Chand’s non-compliance with the timetable caused them any prejudice. It is not ‘fair’ in all the circumstances to make a costs order against Ms Chand for non-compliance with the timetable.

47 Merits of the appeal. According to RailCorp, the first Notice of Appeal lodged by Ms Chand on 19 May 2007 was poorly drafted and claimed, among other things, that she had been denied procedural fairness because her lawyer, Mr Oliveri had not been given sufficient time to read RailCorp’s materials. RailCorp submits that that allegation was misconceived and vexatious. The second ground of appeal alleged that the Tribunal had made factual findings when there was no evidence to support those findings. The impugned findings were not identified leading RailCorp to request further and better particulars. RailCorp also submitted that both the Tribunal and ultimately the Appeal Panel dismissed each of Ms Chand’s complaints and that they lacked merit. Ms Chand was not represented when she first lodged the Notice of Appeal. The fact that the appeal was poorly drafted is a reflection of that fact. Costs orders should not routinely be made merely because a self-represented appellant lacks the skills to draft a cogent Notice of Appeal.

48 RailCorp’s application for costs an abuse of process. Ms Chand submitted that RailCorp’s application for costs constitutes an abuse of process and ‘an attempt . . . to use the process of the Tribunal to further harass me and cause additional costs.” RailCorp is entitled to apply for costs pursuant to s 88 of the ADT Act. We do not agree that it constitutes an abuse of process however we decline to make a costs order against Ms Chand in relation to the Appeal Panel proceedings.

Should the Appeal Panel order that RailCorp pay Ms Chand’s costs in relation to the Appeal Panel proceedings?

49 Introduction. Ms Chand’s application for costs was based on her claims about RailCorp’s conduct at first instance, assertions that RailCorp had not behaved as a ‘model litigant’ and that the Independent Commission Against Corruption (ICAC) had made findings of corruption against RailCorp.

50 Conduct prior to the commencement of proceedings and at first instance. Ms Chand said that RailCorp failed to settle her complaint before terminating her employment and that by doing so it failed to apply a commercial basis to its dealings and did not act in the public interest. Ms Chand also said that her costs application was brought about as a ‘corollary’ to RailCorp’s costs applications due to its ‘abuse of the court processes by submitting 2000 pages of irrelevant evidence and cross-examining Ms Chand over four days on extraneous matters’. All these allegations relate to conduct before proceedings were commenced or conduct during the hearing before the Tribunal at first instance. They are not relevant to the proceedings before the Appeal Panel.

51 Failure of RailCorp to be a ‘model litigant’. Ms Chand alleged that RailCorp had failed to comply with its obligations to act as a model litigant. The standards of behaviour for government agencies involved in litigation are set out in the Premier’s Memorandum 97-26 Litigation Involving Government Agencies. Ms Chand says that the fact that RailCorp has applied for costs demonstrates that it is not acting as a model litigant. Secondly, Ms Chand said that RailCorp failed to act as a model litigant in the appeal proceedings by labelling her appeal submissions as ‘vexatious and without merit’ prior to her obtaining legal representation. Finally, RailCorp failed to file and serve a notice of contention or a cross appeal in relation to the evidence of Mr Hinien until the Tribunal gave leave for it to do so in March 2008. RailCorp’s response to those submissions was that it is not incumbent upon them to settle any matter on a commercial basis nor do any of the other allegations breach any provision of the model litigant policy. We agree with that submission.

52 Failure to take into account findings by ICAC about corruption. Ms Chand alleged that the Tribunal had failed to take into account the findings made by the ICAC in regard to corruption within RailCorp extending over many years and the failure by the management of RailCorp to properly address this corruption. She said that the ICAC findings were a matter of public record. In her view RailCorp should be ordered to pay her costs to ‘put a stop to big organisations in future running proceedings as RailCorp did in the ADT and the appeal.’ RailCorp’s response to that submission is that any findings by ICAC are irrelevant to these proceedings and, in any case, costs should not be awarded against RailCorp for an alleged omission by the Tribunal. We agree with those submissions.

53 Ms Chand did not put forward any basis on which it was ‘fair’ to make a costs order against RailCorp in relation to an appeal lodged by her.

Should the Appeal Panel order that Ms Chand pay RailCorp’s costs in relation to their costs applications?

54 RailCorp also applied for costs in relation to their costs applications made in May 2009. That application was based, in part, on Ms Chand’s conduct in persistently making applications for a stay or an adjournment and because of the language she used when corresponding with RailCorp and the Tribunal.

55 On 29 May 2009 Ms Chand wrote to the Tribunal in relation to RailCorp’s application for costs and suppression of names. She noted that the solicitor acting for RailCorp is Mr Joseph Catanzariti. In that letter, Ms Chand wrote:

Mr Catanzariti is the President of the Law Society of New South Wales and, as such, must be taken to be more than usually aware of the obligations of solicitors under the Professional Conduct and Practice Rules of the Law Society of New South Wales.

My position is that the application made by RailCorp for costs pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 (NSW) is vexatious and oppressive and an abuse of the process of the Tribunal. I note that RailCorp was recently criticised in the strongest of terms by the Independent Commission Against Corruption for ‘turning a blind eye’ to corruption within it organisation. . .

It is clear that RailCorp, in making its application for costs against me, is not acting as a model litigant. This must be apparent to Mr Catanzariti, yet he is supporting RailCorp in its application.

56 On 22 June 2009, at a case conference in which Ms Chand attended by phone, she reiterated an earlier application to have the costs application stayed pending the outcome of an appeal to the Court of Appeal. She said that the ‘normal practice’ of the Tribunal was to stay an application for costs when there was an appeal against the substantive decision. She also said that she needed more time to prepare for the costs application because she was engaged in Court of Appeal proceedings. The Appeal Panel extended the timetable but refused the stay. We noted that, contrary to her suggestion, there was no ‘normal practice’ in relation to these circumstances. Ms Chand wrote to the Tribunal again requesting that the costs application be stayed ‘in light of the fact that the Notice of Appeal has been filed in the Supreme Court.’ On 7 August 2009 the Tribunal wrote to the parties refusing Ms Chand’s request and advising that the timetable would remain in place. Ms Chand did not file her written submissions by 10 August 2009 as directed. On 11 August she wrote to the Tribunal reiterating that it was not possible for her to comply with the timetable. In that letter she wrote:

In my respectful view the conduct of RailCorp – apparently condoned and/or supported by the Administrative Decisions Tribunal – represents nothing less than an attempt by a statutory corporation which is obliged to act as a model litigant to use the processes of the Tribunal to bully and harass me.

I refer you to the decision of Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201 where the conduct of State Rail (now RailCorp) was strongly criticised by Justice John Basten in similar circumstances.

57 The 11 August letter also made allegations against RailCorp and its participation in ICAC hearings and states that, ‘It is improper for the ADT to proceed with the hearing of the costs application’. Despite being advised by the Tribunal that it intended to hear the application Ms Chand wrote again on 21 August 2009 requesting that the timetable be amended. The Appeal Panel granted Ms Chand an extension of one month to file and serve her evidence.

58 Language and behaviour. RailCorp applied to the Appeal Panel to strike out those parts of Ms Chand’s submissions where she makes offensive scandalous or improper allegations against the RailCorp, its employees and its legal representatives. These allegations include: misleading the Tribunal, being complicit in an abuse of process, corruption, acting improperly and/or unethically. RailCorp also referred to Ms Chand’s conduct in the hearing room which included talking over the top of both the legal representatives for RailCorp and the Tribunal members, raising her voice and cavilling with decisions made against her. RailCorp submitted that this rudeness is a matter which the Tribunal should take into account in concluding that it would be appropriate to make a costs order against her.

59 Conclusion. Ms Chand vigorously and persistently attempted to avoid or delay a hearing in relation to RailCorp’s costs applications. Those efforts were partially successful, as the hearing date was not set down until 5 months after the applications were first made. We do not accept Ms Chand’s submission that RailCorp has failed to act within the model litigant guidelines. Those guidelines do not oblige RailCorp make any particular offer of settlement or to accept Ms Chand’s offers of settlement. Nor do they prevent RailCorp from making an application for costs. The circumstances in the case of Mahenthirarasa to which Ms Chand referred in her 11 August letter, were different from the circumstances of this case. In that case the successful appellant sought costs against RailCorp’s predecessor, the SRA. That application was opposed on the basis that the SRA did not oppose the appeals but rather filed a submitting appearance save as to costs. The result was that the Court of Appeal did not have the assistance of the SRA’s submissions. The Court formed the view that the SRA’s approach was inconsistent with the principles applicable to a model litigant. Ms Chand’s reference to ICAC findings is also irrelevant.

60 The language Ms Chand has used and the allegations she has made about RailCorp’s lawyers in her correspondence of 29 May 2009 and 11 August 2009 is not justified. She also has difficulty waiting for her turn to speak and accepting the Tribunal’s rulings. These behaviours have meant that RailCorp has had to respond to numerous applications and allegations from Ms Chand which it should not have had to spend time addressing. However, we have taken into account that Ms Chand was self represented in relation to the costs applications and was understandably concerned about the possibility of a costs order being made against her. While not condoning her behaviour, we are not persuaded that it is fair to make a costs order against her.

Application for suppression order and for costs of that application

61 RailCorp made the following application:

1. That in Chand v State Rail Authority [2007] NSWADT 90; Chand v State Rail Corporation of New South Wales [2007] NSWADTAP 54 and Chand v Rail Corporation of New South Wales (No 2) [2009] NSWADTAP 27 and in any decision in relation to the present application, any and all references to the following persons be replaced with their initials:

Mr Jan Plichta, Mr Peter Dempsey, Mr John Hinien, Ms Nirmala Joshi, Mr Joe Cadry and Mr John Pais.

2. Any further publication of those decisions without the use of the initialised pseudonyms be prohibited.

3. Access to the file for each of the file numbers 051080 and 079026 be restricted to the parties to the proceeding

62 Section 75 of the ADT Act sets out the general rule that hearings are to be open to the public. However, the Tribunal has power, if it is ‘satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason’ to make certain orders including an order prohibiting the disclosure of the name or any other material that identifies or may lead to the identification of any person. The relevant provisions of section 75 are as follows: -

75 Proceedings on hearing to be conducted in public

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.

(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).

63 In LD v Director General, Department of Education and Training and anor [2009] NSWADT 14 (27 January 2009) the Tribunal summarised the relevant principles at [7] to [17]. Much of that analysis was based on the Appeal Panel’s decision in State of New South Wales (Justice Health) and another v Dezfouli [2008] NSWADTAP 69. We have not repeated that analysis here however, two points should be highlighted. Firstly, while the Tribunal may make a suppression order if it is satisfied that it is ‘desirable’ to do so, the Tribunal should have regard to the common law principle of open justice. Secondly, the Tribunal should decide what is desirable in accordance with consistent standards and values, not its own particular preferences. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

64 In Dezfouli, the Appeal Panel summarised its main conclusions as to the manner in which section 75(2) should be interpreted at [81]:

It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

65 The only case where a suppression order has been made in this jurisdiction in relation to an adult respondent to a complaint of discrimination or harassment is Z v University of A, Dr D & B (No 4) [2002] NSWADT 14. In that case the Tribunal suppressed the names of the respondents and six other persons for the following reasons summarised by the Appeal Panel in Dezfouli at [74]:

(a) the public airing of serious allegations of impropriety made against the respondents going beyond the Tribunal’s jurisdiction, was likely to damage their reputations severely, causing them greater harm than any harm that might be done to the Applicant;

(b) the Applicant had indicated a desire to cause hurt, distress and embarrassment to many, if not all, the Respondents;

(c) the Applicant’s allegations were not supported by any objective evidence; and

(d) since none of the Respondents, apart from the Respondent University, had played any role in the investigation conducted by the Anti-Discrimination Board, there had been no opportunity, even at an informal level, to test the strength of the many serious allegations made against them: State of New South Wales (Justice Health) and another Dezfouli [2008] N SWADTAP 69 at [74].

66 RailCorp conceded that its application is stronger in relation to Mr Hinien, Mr Dempsey and Mr Plichta who were alleged to have sexually harassed Ms Chand, than it is in relation to the other employees who were the subject of allegations of victimisation. In relation to the allegations of sexual harassment, RailCorp made the following submissions:

a) Mr Dempsey : The allegations of sexual harassment against Mr Dempsey were rejected by the Tribunal and the Appeal Panel because they were outside the complaint period and there was consequently no jurisdiction to entertain them.

b) Mr Plichta : Mr Plichta was Ms Chand’s supervisor. The Appeal Panel found that the alleged incident consisted of Mr Plichta brushing a shopping bag which he was holding across the lower part of Ms Chand’s back while she was waiting to cross the road. According to RailCorp, this allegation was so trivial that it should never have been made but it caused Mr Plichta significant anxiety and exacerbated his medical condition.

c) Mr Hinien : Ms Chand alleged that he had read pornographic magazines in her presence. However, in evidence Ms Chand conceded that he could have been reading a magazine such as Cleo or Cosmopolitan. Mr Hinien denied ever reading any magazines or having any of the alleged conversations with Ms Chand. The Appeal Panel preferred Mr Hinien’s evidence and dismissed the complaint.

67 RailCorp submitted that:

a) The public airing of serious allegations of impropriety is likely to severely damage their witnesses’ personal and professional reputations;

b) Ms Chand has indicated a desire that Mr Plichta, Mr Hinien and Mr Dempsey be publicly shamed;

c) Ms Chand’s allegations were not supported by any objective evidence and were ultimately dismissed both at first instance and by the Appeal Panel.

68 Damage to reputation. RailCorp said that their employees were not embarrassed by the publication of their names on the internet, rather they were concerned that their reputations may be severely tarnished. There was no evidence of any damage to the reputation of any of RailCorp’s witnesses, nor are we persuaded on the basis of RailCorp’s submissions that that is likely to occur. Each of Ms Chand’s allegations has been dismissed for various reasons after consideration by the Tribunal at first instance and the Appeal Panel. There are no adverse findings against any of RailCorp’s employees which would tend to damage their reputation.

69 Desire to shame. RailCorp submitted that the normal course when responding to a suppression application is to neither consent to nor oppose it but to leave the matter to be determined by the Tribunal. While that may be so, Ms Chand was self-represented and cannot be expected to be aware of such conventions. At an early stage, Ms Chand referred to her complaint against Mr Hinien as a ‘counter’ complaint to the request by him to be transferred out of Ms Chand’s unit. RailCorp has interpreted this remark as meaning that Ms Chand’s intention was not to seek redress for his conduct but to punish him for complaining about her. In addition, in a case conference on 22 June 2009 Ms Chand said, “If the suppression application goes ahead, my case has no meaning.” RailCorp submitted that this response shows malice and a continuing intent to damage the reputation of the persons concerned despite the fact that her complaints have been dismissed. While the first comment can be interpreted as indicating a desire to punish Mr Hinien, the second comment is relatively innocuous. One comment made at the beginning of the proceedings does not justify a costs order being made against Ms Chand.

70 No objective evidence. Ms Chand’s allegations were supported, at least to some extent, by her own evidence. The strength of those allegations was tested before the Tribunal at first instance and, to the extent that the Appeal Panel extended the appeal to the merits of the Tribunal’s decision, on appeal. The fact that there was no independent corroboration of those allegations is not a reason to suppress the names of the people against whom the allegations were made.

71 Conclusion. Keeping in mind the principles referred to above, we are not persuaded that any of the matters referred to by RailCorp, either alone or in combination, makes it desirable to make a non-publication order or the other orders sought by RailCorp. We also decline RailCorp’s application for costs in relation to that application as it is not ‘fair’ to do so having regard to the matters set out in s 88(1A).

1. Leave is granted for RailCorp to appeal out of time against the Tribunal’s failure to determine its costs application in relation to two adjournments at first instance.

2. Leave is granted for the appeal to extend to the merits of the Tribunal’s failure to determine RailCorp’s costs applications in relation to two adjournments at first instance.

3. Ms Chand is to pay RailCorp’s costs of the two adjournment applications as agreed or, as assessed under the Legal Profession Act 2004.

4. The remaining applications for costs are refused.

5. RailCorp’s application for suppression and related orders is refused.