Cooper v Western Area Local Health Network (No 2)
[2012] NSWADT 138
•19 July 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Cooper v Western Area Local Health Network (No 2) [2012] NSWADT 138 Hearing dates: 17 and 18 October 2011 Decision date: 19 July 2012 Jurisdiction: Equal Opportunity Division Before: J Needham SC, Deputy President
N Hiffernan, Non-Judicial Member
J McClelland, Non-Judicial MemberDecision: The application for costs by the applicant should be dismissed.
Catchwords: Application for costs - successful applicant - weighing of factors going to fairness of costs order - application dismissed. Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977Cases Cited: Cooper v Western Area Local Health Network [2012] NSWADT 39
AT v Commissioner of Police, NSW [2010] NSWCA 131
In Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128Category: Costs Parties: Catherine Cooper (Applicant)
Western NSW Local Health Network (First Respondent)
Colin Locke (Second Respondent)Representation: C Cooper (Applicant in person)
McIntosh McPhillamy & Co (First Respondent)
Campbell Paton & Taylor (Second Respondent)
File Number(s): 111032
REASONS FOR DECISION
J Needham SC, Deputy President; N Hiffernan, Non-Judicial Member; J McClelland, Non-Judicial Member:
The Tribunal determined this matter on 9 March 2012 (reasons Cooper v Western Area Local Health Network [2012] NSWADT 39) in which a complaint of sexual harassment was substantiated as against the second respondent and dismissed as against the first respondent, the applicant's employer. An order was made that the second respondent pay the sum of $10,000 to the applicant. The parties thereafter made submissions on costs. Those submissions were:-
a) Applicant:
Letter 9 March 2012 seeking costs against the second respondent;
letter 16 March 2012, seeking costs in the sum of $6,000.
b) First respondent:
letter 11 April 2012 making no application for costs; and
further letter 11 April 2012 querying whether the applicant's letter of 16 March 2012 sought costs against the first respondent.
c) Second respondent:
Letter 7 May 2012 making submissions against an order for costs.
The Tribunal is of the view that the totality of the correspondence above indicates that the applicant seeks her costs, in the sum of $6,000, against the second respondent and does not seek costs against the first respondent. The first respondent makes no application for costs.
The applicant's costs application
The applicant raised a number of issues, in particular the fact that she had received legal advice until shortly before the hearing. She also referred to a letter, which is apparently a letter which was marked "without prejudice", dated 1 September 2012. On the basis of the second respondent's solicitor's characterisation of this letter as being sent "without prejudice", we have not read it and have disregarded the description of its contents in the letter of 9 March 2012.
In her submissions, the applicant raised the issue that she had no representation at the hearing, when the other parties did, and referred to the stress which accompanied that circumstance.
The second respondent's response to the application for costs
On behalf of their client, Mr Locke's solicitor's submitted that the conduct of the proceedings did not fall within any of the sub-sections in s 88(1A)(a)(i)-(v). They note that it was not their conduct, but the applicant's, which caused an adjournment of the initial hearing shortly prior to its listing date.
It was submitted on behalf of Mr Locke that the defence was not untenable in "fact or law" (see sub-s 88(1A)(c)) and pointed out the financial hardship which the order of damages against him will cause.
The first respondent's position
The first respondent's position can be briefly stated. It does not seek an order for costs, and the applicant's request for costs can really only be read as an application for costs against Mr Locke. It is noted that the applicant did not submit otherwise after receiving the submissions of the first respondent.
Consideration
The applicant's application for a costs order must be based on s 88 of the Administrative Decisions Tribunal Act 1997, which provides (relevantly):-
88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
...
(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.
Section 88, therefore, allows a costs order to be made only if the Tribunal is satisfied that it is fair to do so, on one of the bases of sub-paragraphs 1A(a) to (e). The provisions relating to fairness were was examined in AT v Commissioner of Police, NSW [2010] NSWCA 131 where the Court of Appeal said:-
[33] That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.
From this passage three propositions can be drawn:-
a) no costs must be ordered if the Tribunal is not satisfied that it is fair to do so;
b) the relevant fairness must be grounded in one of the criteria set out in the Act; and
c) the compensatory nature of costs must be taken into account when assessing "fairness", and that consideration will "generally" favour the successful party.
Despite factor (c), the Tribunal remains in principle a "no-costs" jurisdiction.
In Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128, the Tribunal referred to AT v. Commissioner of Police and noted the relevance to the Objects of the Anti-Discrimination Act 1977 including sub-ss 3(b) and (c) which provide:-
(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner...
In Wong, the Tribunal ordered that a proportion of the respondent's costs thrown away by an adjournment caused by the applicant be paid, having regard to the objects of the Act and the interest of the Tribunal in not penalising applicants unnecessarily.
In this case, the second respondent failed. He failed because, as the Tribunal found in relation to the complaint, the handing of the sexually explicit note to the applicant was "unwelcome conduct of a sexual nature" and that a reasonable person would have found the note offensive, humiliating or intimidatory. It was, in our view, difficult to view the circumstances in any other way. The matter however does not quite reach the threshold of being "untenable in fact or law". The factor pointed to by Mr Locke - that the action was taken in the context of a friendship of long-standing and was an error of judgment - is what keeps it from being untenable. Mr Locke misjudged the effect it would have on the applicant, and indeed misjudged its objective offensiveness.
As against that misjudgement, the Tribunal does not view Mr Locke as having run the proceedings in a way which would trigger the unfairness set out in sub-s (1) of s 88(1A). The submissions made by Mr Locke's counsel, and the cross-examination of the applicant, were run economically and without seeking to cause any undue distress to the applicant. It was a matter that was fairly run in the two days allocated to it.
Similarly, no conduct of Mr Locke or his legal representatives prolonged the hearing unreasonably (sub-s 88(1A)(c)). In fact, it was Ms Cooper's application for the adjournment that resulted in the matter being adjourned. There is no evidence of any costs incurred by the adjournment but practical reality suggests there must have been at least some impact on Mr Locke in costs thrown away.
In this matter, the elements are finely weighted. On the one hand, Ms Cooper has been successful. That is not sufficient on its own to invoke "fairness" in having a costs order. She will, she says, suffer difficulty in meeting her solicitor's costs. On the other hand, Mr Locke has defended his case in a properly run proceeding. He has defended it, not by attacking the applicant's conduct or by making untenable propositions, but by acknowledging the nature of the letter and seeking to categorise it as falling within an exception to the Act. We have found that this was not correct, but it is not "untenable". He says he will suffer difficulty if a costs order is made against him.
Finding on costs
Having weighed all of the above in the balance, and bearing in mind that the Tribunal is not generally a jurisdiction of costs orders, we find that the application for costs by the applicant should be dismissed.
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Decision last updated: 19 July 2012
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