Crewdson v Niland & Ors

[2001] NSWADT 87

CITATION:	Crewdson -v- Niland & Ors [2001] NSWADT 87
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gerard Crewdson RESPONDENTS Carmel Niland Helia Gapper Raoul Salpeter Teresa Anderson
FILE NUMBER:	011015
HEARING DATES:	01/05/01 23/05/01
SUBMISSIONS CLOSED:	05/23/2001
DATE OF DECISION:	06/29/2001
BEFORE:	Innes G - Judicial Member; Farmer L - Member; McDonald O - Member
APPLICATION:	Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	58/98 Crewdson v Director General, Department of Community Services 67/98 Crewdson v Central Sydney Area Health Service Casey v Entrad Corporation Ltd (EOC 92-179) Sloey v State Transit Authority [1999] NSWADT 49
REPRESENTATION:	APPLICANT In person FIRST TO THIRD RESPONDENTS A Moses, barrister FOURTH RESPONDENT J Clark, barrister
ORDERS:	Orders made on 23 May 2001 ; 1. This complaint is dismissed for want of prosecution pursuant to s 111 (1) (a) of the Anti-Discrimination Act. ; 2. No order is made as to costs.

Reasons for Decision

1 This decision deals with a complaint of victimisation under s 50 of the Anti-Discrimination Act of NSW lodged by the complainant against the four respondents on 21 January 1999.

2 Hearings in this matter took place on 1 and 23 May 2001 to deal with applications by the complainant for interim orders, and applications by the respondents under s 111 of the Act. The complaint was finalised on the second of these hearing days.

BACKGROUND

3 The complaint has a complicated history. This is set out very clearly by a differently constituted Tribunal in NSW ADT 60 of 2000 dated 16 May 2000. This Tribunal adopts that explanation of the history and quotes it here in full.


5 This case has a long and complex history. This summary is drawn from documents filed by the President, in particular, the statement of Ms Jillian Moir dated 11 November 1999 and from the documents filed by Mr Crewdson. To the best of my understanding there are no disputes between the parties concerning the material facts in the case. What is in dispute is the President’s interpretation of the section of the Act which deals with victimisation, section 50, and the President’s exercise of his discretionary power to decline to entertain a complaint under section 90 of the Act.

6. Mr Crewdson commenced employment with the Department of Community Services (DOCS) in September 1990. In 1997, when Mr Crewdson was working as a residential care assistant in a group home for people with intellectual and physical disabilities run by DOCS he was referred, by DOCS, to HealthQuest for an assessment of his fitness to continue work. On 29 October 1997 HealthQuest recommended to DOCS that Mr Crewdson “is currently unfit for work and in need of further psychiatric assessment and consideration of treatment”. HealthQuest recommended that Mr Crewdson “should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest”. DOCS acted upon this recommendation and on 29 October 1997 it directed Mr Crewdson to cease work. At first Mr Crewdson was on sick leave and when this leave expired he remained an employee of DOCS on leave without pay.

7 On 30 December 1997 Mr Crewdson lodged a complaint with the President against DOCS and HealthQuest alleging unlawful discrimination under the disability provisions of the Act. At Mr Crewdson’s request the complaint was characterised throughout as one of ‘presumed’ disability discrimination. I take this to be a reference to the fact that Mr Crewdson did not believe that he suffered from any disability but, in making his complaint to the President, he was relying upon the provisions of section 49 A of the Act which, in general terms, provides that a reference in the Act to “a person’s disability,” includes a reference to a disability that the person is thought to have, or a disability that person had in the past or was thought to have had in the past.

8 In April 1998 Mr Crewdson broadened his complaints against DOCS and HealthQuest to include allegations of victimisation contrary to section 50 of the Act. He also lodged complaints of ‘presumed’ disability discrimination against the Health and Related Employees Association and the Medical Appeals Panel. On 7 May 1998 the complaints of disability discrimination and victimisation against DOCS were referred to the Equal Opportunity Tribunal by the President on the ground that he did not believe that the complaints could be conciliated. On 15 May 1998 Mr Crewdson’s complaints against HealthQuest were also referred to the Equal Opportunity Tribunal on the ground that they could not be conciliated.

9 On 21 September 1998 Mr Crewdson applied to the Equal Opportunity Tribunal for an interim order that he be reinstated in his employment with DOCS. That application, which was adjourned to 12 October 1998, was not finalised as it was overtaken by other events.

10 Around this time settlement discussions took place between Mr Crewdson and the legal practitioners who represented DOCS and HealthQuest. The two matters formerly before the Equal Opportunity Tribunal were case number 58/98 Crewdson v Director General, Department of Community Services and case number 67/98 Crewdson v Central Sydney Area Health Service . It appears that HealthQuest is an organisation which operates under the auspices of the Central Sydney Area Health Service.

11 During October 1998 an agreement was reached between the parties to settle the two cases which were pending before the Equal Opportunity Tribunal (now the Equal Opportunity Division of this Tribunal). A deed, purporting to record the terms of the settlement, was prepared and executed by Mr Crewdson, Ms Carmel Niland (the Director General of the Department of Community Services) and Dr Helia Gapper (the Director of HealthQuest).

12 Mr Crewdson was not legally represented in the settlement discussions and it appears that he signed the deed without legal advice. He was in fact in New Zealand at the time he executed the deed residing with his brother Mr A.J. Crewdson. It appears that the legal practitioners who acted for DOCS and the Central Sydney Area Health Service in relation to the matters before the Equal Opportunity Tribunal and the settlement of those cases were a barrister, Ms Therese Anderson, and a solicitor employed in the office of the State Crown Solicitor, Mr Raoul Salpeter.

13 On 6 November 1998 the two cases referred to in paragraph 10 were listed before the Equal Opportunity Division of this Tribunal, which by that stage had assumed the jurisdiction previously exercised by the Equal Opportunity Tribunal. Mr Crewdson did not appear before the Tribunal and on that date Ms Rogers, a solicitor from the State Crown Solicitor’s office, appeared for the respondents. Ms Rogers informed the Tribunal that she had been asked by Mr Crewdson’s brother to mention the matter on his behalf. Ms Rogers read to the Tribunal a document described as ‘Joint Public Statement’ which was Annexure ‘B’ to the deed. That statement was:


Mr Gerard Michael Crewdson resigned from his employment as a residential care assistant in the Department of Community Services on 2 October 1998.

Prior to his resignation, Mr Crewdson alleged that the Department of Community Services and the Central Sydney Area Health Service had subjected him to discrimination and/or victimisation within the meaning of the Anti-Discrimination Act 1977.

As a result of discussions between the parties, Mr Crewdson now acknowledges that neither the Department of Community Services nor the Central Sydney Area Health Service subjected him to discrimination and /or victimisation within the meaning of the Anti-Discrimination Act 1977.

The Department of Community Services acknowledges that Mr Crewdson was a satisfactory employee.

The Tribunal then dismissed Mr Crewdson’s complaints against the Director General of the Department of Community Services and the Central Sydney Area Health Service.

14 The deed was placed in evidence, by Mr Crewdson, in the current matter before the Tribunal. Whilst it is unnecessary to consider the contents of that document in order to determine this appeal, for the sake of completion, I should record some of its key provisions:


(a) the State of New South Wales agreed to pay Mr Crewdson the sum of $22,000, plus his outstanding leave entitlements, in settlement of all of the proceedings before the Tribunal.

(b) Mr Crewdson agreed to publicly acknowledge by means of a joint public statement that the State of New South Wales and the Central Sydney Area Health Service had not subjected him to discrimination and/or victimisation within the meaning of the Act.

(c) Mr Crewdson agreed that the Tribunal should dismiss his complaints.

(d) Mr Crewdson agreed to submit his written resignation from his employment with DOCS from 2 October 1998.

(e) Mr Crewdson agreed to release the State of New South Wales and the Central Sydney Health Service from all claims in relation to his employment with DOCS and his health assessment by the Central Sydney Area Health Service.

(f) the parties agreed that the deed may be pleaded in bar to any proceedings commenced by any other party in connection with any of the matters referred to in the deed.

(g) with the exception of the joint public statement the parties agreed not to disclose the contents of the deed except as they may be required to do so by law.


15 On 21 January 1999 Mr Crewdson lodged with the President complaints of victimisation under section 50 of the Act against Ms Niland (the Director General of DOCS), Dr Helia Gapper (the Director of HealthQuest), Mr Raoul Salpeter (solicitor from the Crown Solicitor’s Office) and Ms Therese Anderson (barrister).

16 In his letter of complaint to the President Mr Crewdson stated:


Respondents:

(1) Carmel Niland Director General DOCS

(2) Helia Gapper Director HealthQuest

(3) Raoul Salpeter Senior Solicitor Crown Solicitors Office

(4) Therese Anderson Barrister employed by the above.

Date alleged Unlawful Action enacted: 6/11/98

Particulars of Unlawful Action:

1. Section 50(1)(a) states:

“It is unlawful for a person (“the discriminator”) to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has: - brought proceedings against the discriminator or any other person under this Act”.

2. On 6/11/98 Complaints of Unlawful Discrimination and Victimisation that I had made against my Employer DOCS and HealthQuest were dismissed in the Equal Opportunity Tribunal not by a full and open hearing into those Complaints but by means of a Joint Public Statement I had been forced to sign in which I acknowledged that no Unlawful Discrimination or Victimisation had taken place.Judge Murrell referred to this Statement as my “apology”.

3. Section 50 of the Act states “any detriment in any circumstances”

4. I assert that any circumstances could conceivably include the circumstance of well-resourced Respondents taking advantage of a vulnerable Complainant to force the dismissal of a Complaint within the EOT prior to a full public hearing of the evidence and on terms that are unfair, unjust or unreasonable for the complainant.

5. I alleged that my respondents took deliberate advantage of my financial vulnerability to press upon me an unfair and unjust Public Statement of Apology as a pre-condition of my being granted financial relief.

6. I allege that this Joint Statement was also set as a condition for my being granted a Statement of Satisfactory Service.

7. I allege that my resignation from DOCS was also set as a condition of my being granted financial relief and a Statement of Satisfactory Service.

8. I allege therefore that by their action of setting such conditions and by the pressure they exerted to guarantee my compliance, the Respondents subjected me to detriments that would be in breach of s 50 of the AD Act.

9. I allege also that I was subjected to a detriment in that I was forced to sign a Statement that I knew to be untrue and that I knew would be read out in the Tribunal.

10. I allege that I was subjected to these detriments as a direct result of my having brought proceedings under the AD Act against the Respondents.

11. I allege that by discrediting me as a Complainant, this Statement also sought to prevent me from taking further action of any sort under the NSW AD Act connected with my employment with the NSW Public Service.

12. I allege therefore that the Joint Public Statement drafted by the Respondents represents Unlawful Victimisation within the meaning of s 50 of the AD Act.

13. I allege that the Provisions of the Deed of Release that gave rise to this Joint Public Statement also represent Unlawful victimisation within the meaning of the AD Act 1977.

17 On 12 August 1999 the President wrote to Mr Crewdson to inform him that he had declined the complaints of victimisation against Ms Niland, Dr Gapper, Mr Salpeter and Ms Anderson pursuant to section 90(1) the Act. The President informed Mr Crewdson that “after considering carefully all the relevant information you have provided the Board, I am satisfied that what you have alleged does not disclose a contravention of the NSW Anti-Discrimination Act ”. The President attached to his letter a document described as ‘Statement of Reasons prepared in accordance with section 49(3) NSW Administrative Decisions Tribunal Act 1997’. In that document the President set out his understanding of Mr Crewdson’s complaint, his understanding of the elements of section 50 of the Act, the list of the matters which he took into consideration in reaching his decision and then, under the sub-heading ‘Reasons for my decision’, the President stated:

The reasons that I decided to decline your complaint on the basis that I am satisfied that it does not disclose a contravention of the Anti-Discrimination Act, 1977 are as follows:

• It cannot be the intention of the ADA to include the prospect that the terms of a Deed of Release signed by the parties under the auspices of the ADT could be seen as subjecting a person to a detriment on the grounds that they have lodged a complaint under the Act.
• Even if it is the case that the ADA was intended to cover such an allegation, your complaints do not make out the necessary elements of victimisation because:
• by an objective measure you have not suffered a detriment as you have accepted a clear benefit in the negotiations with the respondents, in the form of financial compensation and a statement of service; and
• even if you have suffered a detriment, it has not arisen “on the ground of” you having made a complaint, but as a consequence of engaging in settlement negotiations to resolve the complaint. Victimisation under the Act requires an element of retaliation on the part of the respondent in inflicting the detriment, and it is clear that the actions of the respondents were taken in the context of resolving the complaint, not because you had made the complaint.

18 On 9 September 1999 Mr Crewdson appealed to this Tribunal, pursuant to section 90(3) of the Act, for a review of the President’s decision to decline his complaint of victimisation. In his application Mr Crewdson sought review on the following grounds:


(a) the President’s decision arbitrarily restricts the definition of section 50 of the Act

(b) the President’s decision ignores all relevant/available evidence

(c) the President was biased or there was a conflict of interest.

19 Following a directions hearing the parties filed documents with the Tribunal and the matter was listed for hearing on 3 December 1999. On that occasion the hearing of Mr Crewdson’s appeal did not proceed as the judicial member then comprising the Tribunal granted Mr Crewdson’s application that he (the judicial member) disqualify himself because the judicial member had earlier heard Mr Crewdson’s application for an interim order referred to in paragraph 9. The matter was listed for hearing before me on 17 January 2000.

20 At that hearing no oral evidence was taken but both parties relied on the documents which had been filed and spoke to their written submissions. At the conclusion of the proceedings on 17 January 2000 the parties were granted leave to file further written submissions. Mr Crewdson availed himself of that opportunity and filed a document titled ‘Applicants Final Submission’ on 28 January 2000.

4 The Tribunal in the decision from which the above quote is taken made its decision and orders as follows-

58 In this case, for the reasons given, I have decided that the President’s decision to decline Mr Crewdson’s complaint of victimisation on the ground that it does not disclose a contravention of the Act should be set aside. In keeping with the submission made by Ms Eastman I have also decided that the preferable course is to remit this matter to the President for reconsideration in accordance with the reasons for decision rather than to substitute my own decision for that of the President. To do otherwise would be to put the Tribunal in the invidious position of appearing to have made a conclusive finding about the merits of a case which may ultimately make its way back here for determination. As no application was made for costs it is unnecessary for me to consider this issue.

59 The Tribunal makes the following orders:


1. Application allowed.

2. Decision of the respondent to decline to entertain the complaint of victimisation lodged by the applicant on 21 January 1999 set aside.

3. Matter remitted to the respondent for reconsideration in accordance with the Tribunal’s reasons for decision.


5 The matter was thus remitted to the President of the Anti-Discrimination Board who investigated it and determined that it was not a matter suitable for conciliation. He therefore referred the matter back to the Tribunal pursuant to s 94 (1) (a) of the Act so that a hearing could take place. This occurred in January 2001.

6 Following this referral the complainant lodged an application for urgent interim orders with the Tribunal. It was an application that the interim orders he had sought in the proceedings where settlement had occurred should now be made. This application was before the Tribunal in this hearing.

7 The respondents lodged applications for dismissal under s 111 of the Act. The first, second and third respondents lodged one application, and a second application was lodged by the fourth respondent.

8 All of the material referred to above, with supporting documentation, was before the Tribunal on the two days of hearing.

THE HEARING

9 At the commencement of the hearing the complainant sought an adjournment. He argued that because of his lack of financial resources, and the fact that he was currently homeless, he was unable to proceed. However, he did concede that this had been the situation since late 1999, and that it was unlikely to change. He also put to the Tribunal that to have the two matters (his interim order applications and the s 111 applications) heard together was beyond his resources to cope with, given his personal situation, and the fact that he was unrepresented. He further asserted that this hearing should await a decision in a different division of this Tribunal which had not yet been brought down, although the hearing was completed.

10 The respondents opposed the adjournment. They asserted that the complainants situation was unlikely to change, so an adjournment would not assist. They said that the decision in the other division of the Tribunal had no direct bearing on this decision. Further, the fourth respondent argued that further adjournment would cause her further costs, and that the Tribunal had a responsibility to act as promptly as possible.

11 Finally, the respondents proposed that if dealing with the two applications was beyond the complainant's resources the Tribunal should firstly deal with the s 111 applications, and if they were unsuccessful proceed to the interim orders sought by the complainant.

12 The Tribunal decided not to grant the adjournment application for the reasons submitted by the respondents, and moved on to how the two issues - interim orders and s 111 applications - should be dealt with.

13 The Tribunal formed the view that, in all of the circumstances, the s 111 applications should be dealt with first. It noted the complainants argument that he was in an emergency crisis situation with regard to his finances and accommodation, but also noted that this had been the case for several years.

14 It also found arguments by the respondents persuasive. Firstly, the interim orders sought related to re-employment of the complainant by the Department of Community Services. The Department were not a party to these proceedings, although their Director-General was, and so they may need to be heard. Secondly, the fourth respondent argued that she had not been served with the interim order application, and if the interim order did not directly apply to her she should not have to sit through the determination of that issue prior to the determination of the s 111 applications. Whilst not making a final determination on either of these points, the Tribunal viewed them as persuasive reasons to take the course it chose.

15 The Tribunal further noted that the granting of injunctive or interim relief is a balancing exercise, in which the rights of all the parties had to be considered. Considering the length of time that the complainant had been in his current circumstances, and the potential impact particularly on the fourth respondent, the balance fell in favour of dealing firstly with the s 111 application.

16 The Tribunal then went on to explain how it would deal with the s 111 application. This was an explanation which was repeated, both by the Judicial Member, and the representatives of all respondents, on a number of occasions on both the first and second days of the hearing.

17 The Tribunal stated that the respondents would firstly have the opportunity to make submissions on the s 111 application, and present evidence supporting those submissions. Then the complainant would have the opportunity to make submissions on the s 111 applications, and indicate the evidence which supported his submissions. Finally, the two respondents, and then the complainant, would have the chance to make final submissions.

18 The complainant continued throughout the hearing to argue that the way in which the Tribunal had decided to proceed was wrong. He asserted that the Tribunal could not consider the s 111 application prior to him having the opportunity to place all of his evidence before the Tribunal. The Tribunal explained that such an application could be made at any time during the inquiry, and that if it were made before all of his evidence were proved and presented, and before the respondent had the opportunity to fully rebut such evidence, for the purposes of the s 111 application the complainants evidence would be assessed "at its highest value". In other words, for the purposes of considering the s 111 applications, the complainants evidence would be assumed to be the fact. The complainant either could not understand this explanation, or chose not to accept it.

19 Conduct of the hearing was difficult. As the transcript demonstrates in many places, the complainant continued to cavil with rulings of the Tribunal, particularly on the second day. Also, both during submissions and in cross-examination of the fourth respondent, the complainant continually attempted to "create opportunities" to return to issues upon which the Tribunal had already ruled, rather than focussing on the matter currently before the Tribunal. The Tribunal recognised that the complainant was not represented, and did not have formal legal training, and was therefore more prepared to tolerate this conduct. However, as the hearing continued, the complainant demonstrated a strong grasp of the legal issues and a capacity to research and adequately prepare material for the hearing. Therefore, whilst he was not legally represented, he was better equipped than the average unrepresented litigant.

20 After morning tea on the first day the hearing proceeded to deal with the s 111 applications. It is not necessary for this decision to consider submissions made in this regard, as later occurrences made them irrelevant. Suffice it to say that submissions were made on behalf of the first, second and third respondents and evidence was put before the Tribunal. The fourth respondent then made her initial submissions, and was being cross-examined when the first day of hearing ended.

21 Because of the approach taken by the complainant described in paragraph 20 above, and because of the length of time already taken for cross-examination, at the end of the first day the Tribunal sought to clarify the areas which the complainant still needed to cover in cross-examination of the fourth respondent. The complainant agreed that there were two areas, what had occurred subsequent to the Tribunal hearing on 21 September 1998, and the deed of release itself. The Tribunal ruled that these would be the only areas allowed to be dealt with in cross-examination on the next day of hearing.

22 At the end of the first day 23 May was set as the next date for hearing. This date was convenient to all parties. The complainant did express some reluctance about this hearing date, but gave no specific reasons as to why it was inconvenient.

23 Prior to the second hearing day the complainant appealed the Tribunal's decision as to how it would proceed with the two issues - the interim order applications, and the s 111 applications. He sought a stay of the proceedings until this appeal was heard. That stay was considered by the President of the Tribunal, one judicial and one non-judicial member on 22 May 2001, but not granted.

24 Also prior to the second hearing day the complainant sought an adjournment of the proceedings. The Tribunal, after seeking submissions from the respondents, considered this application on the papers, and gave its decision as follows on 17 May 2001:


"1. The applicant in this matter applied for an adjournment in a letter dated 14 May 2001. This letter was provided to the respondents, and the first, second and third respondents indicated their opposition in a letter dated 16 May 2001.

2. The Complainant wrote a further letter dated 17 May 2001 adding to his application.

3. The Tribunal was satisfied that this was a matter which they could determine in the absence of the parties pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

4. There were three reasons for the adjournment application. The first was the physical and psychological stress that Mr Crewdson is under due to his current lack of employment and accommodation. However, this situation had not changed since a similar adjournment application was made on 1 May 2001 and there was no suggestion in the Complainant’s letter, or the attached letter from a Centacare psychologist, that this situation was likely to change in the near future. The Tribunal was not prepared to grant an adjournment on this basis.

5. Secondly, the complainant advised that he had commenced an action in the Industrial Relations Commission dealing with the same subject matter with which this case deals. That action was commenced subsequent to the action in the Equal Opportunity Division and the Complainant advanced no reasons as to why the Industrial Relations Commission action should take precedence. The Tribunal is therefore the view that the Industrial Relations Commission action should await the determination of the matter by the Administrative Decision s Tribunal.

6. Finally the complainant indicated that he was unavailable on 23 May 2001 because he was the agent for another party in an Industrial Relations Commission hearing. However, the date for this hearing was set after the setting of the date for the adjournment hearing in the ADT matter. The complainant should inform the Industrial Relations Commission that he is unavailable on 23 May 2001 and request an alternative hearing date from that Commission. If the Commission is not prepared to change its hearing date the applicant in that matter may need to obtain an alternative representative.

7. Overall the Tribunal is of the view that all parties will be served by a speedy resolution of this matter and is not prepared to grant the adjournment sought."


25 At the commencement of the second day of the hearing the complainant made an application that the Tribunal should disqualify itself because it had demonstrated bias both on the first day of the hearing and in its decision prior to the second day. He asserted that the Tribunal had demonstrated that it had pre-judged issues, and that it consistently ruled against him during the hearing. He provided no basis for this assertion. The Tribunal formed the view that, without support for this assertion, it did not constitute a basis for it to disqualify itself, and that such an action would cause inconvenience to all parties, and further delay a decision being made in this matter.

26 The complainant also asserted that he had been denied natural justice by the Tribunal. His basis for this assertion was that the Tribunal had decided to hear the s 111 applications before he had a chance to put his evidence on the record. The Tribunal again explained the process that was to take place, and that the complainant would have an opportunity to put his evidence forward. Over numerous interjections by the complainant the Tribunal ruled that it had not denied natural justice, and directed that the complainant continue with his cross-examination of the fourth respondent.

27 The complainant then challenged the restrictions placed on him for cross-examination. The Tribunal reiterated its ruling made on May 1 in this area.

28 The complainant then advised the Tribunal that he was seeking to withdraw the complaint. He said that he was doing so under duress, as a result of the unconscienable conduct of the Tribunal. He said that the position he was taking was due to poverty, lack of resources and stress. He asserted that to continue with the hearing would only lead to a miscarriage of justice.

29 After the assertion of this position several times by the complainant the Tribunal sought the views of the respondents. The first second and third respondents submitted that, if the complainant was not prepared to continue with the hearing of the complaint, the Tribunal should dismiss it for want of prosecution pursuant to s 111 (1) (a) if it was satisfied that the complainant did not wish to pursue the complaint. They asserted that the reasons for the complainant not wishing to proceed were baseless.

30 After a brief adjournment the fourth respondent agreed with these submissions, and argued that dismissal of the complaint by the Tribunal would provide more certainty that this matter would not be re-agitated by the complainant. She indicated that if the complaint was dismissed she would seek costs.

31 The Tribunal took a further adjournment so that it could consider its position, allow the fourth respondent (who was still being cross-examined) to instruct her representative, and allow the complainant to assess the situation before embarking on a potentially irretrievable course of action. Between the two adjournments the Tribunal again explained the way it intended to proceed, and assured the complainant that his evidence would be considered for the purpose of the s 111 applications as described.

32 The complainant, when questioned again after both adjournments and the explanation, indicated that he did not wish to continue with the hearing of his complaint. The possible consequences were explained by the Tribunal and he reiterated his position. The Tribunal then dismissed the complaint for want of prosecution pursuant to s 111 (1) (a) of the Act.

REASONS FOR DISMISSAL

33 From his demeanour and the evidence that he has put before the Tribunal, the complainant is quite clearly absolutely convinced of the validity of his complaint. He is so persuaded to this view that any finding which differs from the path he seeks to take he regards as demonstrating some form of bias against him, or some mistake in law. He takes any such finding very personally, and the process clearly causes him stress. This situation is unlikely to change no matter when the process takes place.

34 The complainant has clearly also spent much time researching the legal issues surrounding his complaint, and has made himself well aware of legal procedure. He is therefore more well informed than most unrepresented litigants appearing in this jurisdiction.

35 Despite this, when the complainant indicated to the Tribunal that he did not want to proceed, the Tribunal made strenuous efforts to both explain how the process would be conducted if it were continued, and to ensure that the complainant was aware of the consequences of the position he sought to take. It also took two adjournments, in part to give the complainant the opportunity to consider his position.

36 The Tribunal was also mindful of the impact of the complainant's behaviour, and the position he was taking, on the respondents. The complainant's continued questioning of the Tribunal's rulings were extending the duration of the hearing quite markedly. When the complainant indicated that he did not wish to proceed, if the Tribunal had just adjourned the hearing to another day the respondents would have incurred further unnecessary costs.

37 Further, whilst this Tribunal was not given the opportunity to make a decision on the merits of the complaint, it did bear in mind the comments made by a differently constituted Tribunal on 16 May 2000 from which the history of this decision was quoted earlier. That Tribunal said-

"51 As the foregoing analysis illustrates all of the reasons advanced by the President in support of his decision to decline Mr Crewdson’s complaint are, at the very least, open to challenge. Interestingly, the President failed to identify what I consider to be the weakest part of Mr Crewdson’s complaint. Mr Crewdson will have great difficulty, I believe, in establishing that any of the four named respondents subjected him to anything. To “subject” is relevantly defined in the Macquarie Dictionary to mean “to cause to undergo or experience something”. In its context in section 50 of the Act the word must mean that a person is forced, required or perhaps coerced to experience something which is a detriment. The objective facts appear to be that the respondents offered to settle the litigation and that Mr Crewdson accepted the offer. There is no suggestion that the respondents required, forced or coerced Mr Crewdson to settle his litigation. The choice to settle was made by Mr Crewdson and he exercised that choice when he signed the deed. It would seem that the respondents cannot be held liable, under section 50, for the operation of whatever internal factors caused Mr Crewdson to accept the offer of settlement.

52 Mr Crewdson has argued that it was a case of “well-resourced Respondents taking advantage of a vulnerable Complainant”. If he can prove this, which I doubt, for he has advanced no evidence of any improper behaviour by any of the respondents during the settlement negotiations, it may be possible for Mr Crewdson to argue elsewhere that the deed should be set aside, but I fail to see how it can be said that the respondents subjected him to anything, even if a court were to find that deed which records the settlement is unconscionable. Nevertheless this weakness in Mr Crewdson’s case does not lead to the conclusion that his complaint fails to disclose a contravention of the Act. It may lead the President to the conclusion that the complaint is “misconceived” or “lacking in substance” and Mr Crewdson may then elect, bearing in mind the President’s assessment of the strength of his case, whether to take the risk of litigating his complaint before the Tribunal."

38 The Tribunal was not minded to simply allow the complainant to withdraw his complaint. Given the history of the matter, and the complainant's unpreparedness to provide a direct answer to a direct question, the Tribunal was loath to rely on an oral withdrawal. It did not raise the possibility of a written withdrawal as it was conscious of previous allegations of duress made by the complainant, and of the comments that the complainant had already made about the Tribunal. It also took into account the strenuous submissions of all respondents in opposition to this course of action.

39 For all of these reasons the Tribunal formed the view that bringing the matter to finality via a dismissal for want of prosecution was its only option.

40 The Tribunal is of the view that it has the capacity to dismiss on this basis pursuant to the part of s 111 (1) (a) which allows dismissal, at any stage of an inquiry, if satisfied that "for any other reason the complaint should not be entertained". Whilst the normal rules of statutary interpretation provide that an inclusive list of reasons ought to be read narrowly to only include the specific reasons in that list, this section appears to have been drafted more broadly to allow for "any other reason" and want of prosecution would certainly fall into that category. The Tribunal is not aware, in this or similar jurisdictions, of a precedent for this action, but is of the view that the section is broad enough to allow for it.

COSTS

41 Following the advice to the parties of the Tribunal's decision, the first second and third respondents indicated that they were not seeking an order for costs. The fourth respondent, however, did seek costs.

42 She firstly relied on the case of Brett v Almatrah (1998) 2 VR 83 as authority for the proposition that a legal practitioner, representing herself, was entitled to seek such costs. The Tribunal accepts this authority.

43 She sought costs of $4552,80, representing 2 half days for the case conference and preparation, and 2 full days for the hearing. There was also a further $52,80 for photocopying costs. These amounts were not challenged, and the Tribunal accepts them.

44 Ms Anderson submitted that she was appearing as an individual not entitled to crown representation, and that this complaint had caused her to loose time from her practice.

45 She asserted that the complaints against her were without basis, and that the complainant should not have taken action against her as an individual.

46 Ms Anderson stated that the Tribunal had power to award costs pursuant to s 114, and that s 114 (2) was only a guide to the Tribunal as to how costs should be awarded. s 114 provides


114. Costs

(1) Except as provided by section 111 (2) and subsection (2) each party to an inquiry shall pay his or her own costs.

(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.


47 Ms Anderson submitted that this situation was an exception in the terms of s 114 (2) in that an undue amount of time had been spent on the matter, and that the complainant had continually cavilled with the Tribunal's rulings.

48 The complainant referred to the case of Casey v Entrad Corporation Ltd (EOC 92-179) which involved the withdrawal of a complaint during the hearing. In this case the Tribunal was satisfied that the complainant's reasons for withdrawing were genuine, and the circumstances did not justify an order for costs. He also relied on Sloey v State Transit Authority [1999] NSWADT 49

although this case was less relevant because it dealt with the awarding of costs against the respondent when the applicant had been successful. However, the complainant argued that the Tribunal had taken into account the poor financial circumstances of the complainant in comparison to the well-resourced respondent.


49 The complainant further submitted that he had not wanted the proceedings to be dealt with in the way the Tribunal had decided to deal with them, and he therefore should not be punished for something for which he was not responsible. He submitted that the Tribunal had not made a decision on the merits of the complaint, and therefore refuted Ms Anderson's assertions that the complaints against her were baseless.

50 It is clear law that, in this jurisdiction, as a general rule, parties will bear their own costs. s 114 (2) is a clear statement of this. For a Tribunal to find differently, the circumstances must be exceptional.

51 In this case, because the complaint was dismissed pursuant to s 111 (1), this position is modified somewhat by the provisions of s 111 (2) which provides


(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.

However, it does not automatically follow that because a complaint is dismissed pursuant to s 111 (1) that costs should be awarded against the complainant. In fact there are many decisions in this Tribunal where, in such circumstances, no costs order has been made.


52 The fact that Ms Anderson was appearing as an individual, without entitlement to crown representation, is certainly a factor for consideration. The need to participate in the hearing did take her away from her practice, but this is true of any respondent to a discrimination complaint. To award costs on this basis alone would be a strong disincentive to complainants and would, in the Tribunal's view, be against the spirit of the legislation.

53 As has been stated previously, the Tribunal did not have the opportunity to make its decision on the merits of this complaint, although earlier comments by a differently constituted Tribunal were noted in this regard. Therefore Ms Anderson's assertion that the complaints were baseless cannot be taken into account in assessing the question of whether costs should be awarded.

54 The Tribunal notes, ironically, that the peremptory actions of the complainant in deciding not to pursue his complaint probably saved the fourth respondent costs, as the matter was likely to have extended into a third day on the s 111 applications, and to have taken one more day at least in a final hearing if the s 111 applications had been unsuccessful.

55 The Tribunal accepts Ms Anderson's submissions that an undue amount of time was spent on this matter, and agrees that the complainant spent much time cavilling with the Tribunal's rulings. However, this is balanced to some degree by the observations in the previous paragraph.

56 The Tribunal is of the view that Casey's case, referred to by the complainant, is distinguishable because the complainants action in withdrawing in that matter was solely due to the stress weighing on her as the result of running the proceedings as an unrepresented litigant. Whilst this is true to a degree in this matter, part of the complainant's reason for not continuing here was his assessment- clearly honestly believed, although in the view of the Tribunal factually flawed- that the Tribunal was biased against him. Therefore, the Tribunal does not feel bound to follow the decision in Casey.

57 Whilst Sloey's case deals with a quite different set of circumstances, the Tribunal is prepared to give some weight to the complainant's parlous financial situation as compared with the first, second and third respondents, represented by the crown. However, balanced against this are the facts that firstly - whilst Ms Anderson did not assert that she was in the same financial circumstances as the complainant - she is an individual representing herself. Secondly, this was not a situation where the complainant had been successful. Rather, it is a situation where he ceased to participate during the proceedings.

58 Finally, the Tribunal gives no weight to the complainants attempted abrogation of responsibility because the proceedings were not conducted as he would have liked. It is trite law that, within the bounds of the rules of natural justice, any litigant taking on proceedings submits him or herself to the decisions of the court or tribunal by so doing.

59 The Tribunal has weighed the above factors in determining whether these particular circumstances are such that they should constitute an exception to the rule in s 114 (2) of the Act. Whilst Ms Anderson is a legal practitioner, her position is no different from that of any other respondent faced with a complaint of discrimination referred for determination. Despite the comments of the differently constituted Tribunal on 16 May 2000, the President of the Anti-Discrimination Board did not decline this complaint on this referral, he referred it for determination because it was not amenable to conciliation. In this instance there is no doubt that the complainant genuinely believes that Ms Anderson's conduct was discriminatory, and that it fitted within the scope of the Act. The complaint was not frivolous, although (from the evidence available at the point when the proceedings were terminated) it was clearly misguided.

60 Taking into consideration the general financial status of the applicant, and his personal condition, and taking into account that on one view these conditions were a result of the incidents that formed the basis for this action, the Tribunal is of the view that on balance these circumstances are not exceptional, and makes no order as to costs. Whilst the behaviour of the complainant in the way he conducted himself at the hearing was inappropriate, it was based on a genuine although misguided belief in the correctness of his assertions. Further, his withdrawal, whilst also inappropriate, actually shortened the hearing.

ORDERS

61 The Tribunal makes the following orders-

(1) This complaint is dismissed pursuant to s 111 (1) of the Anti-Discrimination Act for want of prosecution.

(2) No order is made as to costs.