French v Sydney Turf Club Ltd (No 2)

[2003] NSWADTAP 54

Appeal Panel - Internal

CITATION:	French v Sydney Turf Club Ltd (No.2)[EOD] [2003] NSWADTAP 54
PARTIES:	APPELLANT Margaret French RESPONDENT Sydney Turf Club Pty Ltd
FILE NUMBER:	029032
HEARING DATES:	19/06/03
SUBMISSIONS CLOSED:	06/19/2003
DATE OF DECISION:	11/06/2003
DECISION UNDER APPEAL:	French v Sydney Turf Club Ltd (No.2) [2002] NSW ADT 98
BEFORE:	Hennessy N - Magistrate (Acting President); Ireland G - Judicial Member; Taksa L - Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	212/96
DATE OF DECISION UNDER APPEAL:	06/11/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Interpretation Act 1987
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Cargill Australia Limited v Higginson (No.2) (EOD) [2002] NSWADTAP 33 Citadin Pty Ltd (No. 2) v Eddie Azzi Australia Pty Ltd & DJL v Central Authority (2000) 170 ALR 659 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 French v Sydney Turf Club & Anor [1999] NSWCA 195 French v Sydney Turf Club Ltd [2002] NSWADT 24 French v Sydney Turf Club Ltd (No. 2) [2002] NSWADT 98 French v Sydney Turf Club Ltd [2003] NSWADTAP 10 General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
REPRESENTATION:	APPELLANT In person RESPONDENT R Warren, counsel
ORDERS:	1 The respondent's application for costs is dismissed

1 This issue in these proceedings is whether the appellant, Ms French, should be ordered to pay the respondent’s costs. The Appeal Panel dismissed Ms French’s appeal (French v Sydney Turf Club Ltd [2003] NSWADTAP 10) and noted, at [25], that

Although the Appeal Panel foreshadowed to Ms French that costs may be awarded against her if she
failed to identify a question of law, the STC did not apply for costs, and no costs order is made.

2 On 8 April 2003 the respondent wrote to the Tribunal pointing out that in paragraph 4 of their Reply to the Notice of Appeal which was filed on 27 February 2003, the respondent stated that “the appeal should be dismissed with costs.” The respondent did not mention their application for costs at the hearing and the Appeal Panel was under a misapprehension that the respondent had not applied for costs. Consequently we decided to give the respondent an opportunity to provide written submissions in relation to the costs application and to give the appellant an opportunity to respond. We advised the parties that we would then decide the question of costs “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

3 Ms French submitted that the Appeal Panel is functus officio (ie it has discharged its duty) because it has already dealt with the question of costs and made no order.

Background

4 The history of Ms French’s complaint in this Tribunal is a long one. On 15 May 1995, she lodged a complaint of unlawful discrimination under the Anti-Discrimination Act 1977 with the President of the Anti-Discrimination Board. On 13 February 1998, the Equal Opportunity Tribunal (the predecessor to the Equal Opportunity Division of the Administrative Decisions Tribunal) held an inquiry into the matter and dismissed the complaint. Ms French appealed to the Supreme Court on various questions of law. The Supreme Court dismissed the appeal on 23 June 1998. Ms French then appealed to the New South Wales Court of Appeal. On 18 June 1999, Giles JA (with Priestley JA concurring and Meagher JA dissenting) set aside the Equal Opportunity Tribunal’s dismissal of part of Ms French’s complaint and ordered that the matter be remitted to the Equal Opportunity Tribunal for that part of the complaint to be dealt with according to law. (See Frenchv Sydney Turf Club & Anor [1999] NSWCA 195.)

5 The Tribunal re-heard that part of the complaint that had been remitted by the Court of Appeal. The Tribunal reserved its decision, but in the meantime Ms French applied to re-open her case. On 27 February 2002, the Tribunal found that the interests of justice did not require that leave to re-open the case be granted. Accordingly, that application was dismissed. (French v Sydney Turf Club Ltd [2002] NSWADT 24.) The Tribunal ultimately dismissed Ms French’s complaint. (French v Sydney Turf Club Ltd (No. 2) [2002] NSWADT 98.) It is that decision from which she appealed to the Appeal Panel.

The appeal

6 On 10 July 2002, Ms French lodged an appeal against the Tribunal’s decision. The presiding member of the Appeal Panel held four telephone directions conferences with the parties prior to the hearing. At these conferences, the presiding member explained to Ms French that under s 113(2) of the ADT Act, an appeal “may be made on any question of law, and with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.” The presiding member also advised Ms French that the Appeal Panel’s approach was to seek to identify a question of law before considering whether the appeal should be extended to a review of the merits. Ms French tried to obtain legal assistance prior to the appeal hearing, but was unsuccessful and represented herself.

7 The Appeal Panel found that none of the material submitted either verbally or in writing by Ms French identified a question of law as a ground of appeal. Ms French applied for leave to extend the appeal to the merits of the decision. The approach that the Tribunal has consistently adopted in relation to such an application was outlined by the Appeal Panel in Brandusoiu v Commissioner of Police [1999] NSWADTAP

8. The Appeal Panel said, at [4] that:

It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established.

8 Adopting that approach in the present case, the Appeal Panel declined to extend the appeal to the merits of the decision and dismissed the appeal.

Issues

9 On the basis of the parties’ submissions, the following issues arise:

· Is the Appeal Panel functus officio (ie has it discharged its duty) so that it cannot consider the question of whether costs should be awarded?

·If not, which costs provision applies to these proceedings, the provisions in the ADT Act, or the provisions in the Anti-Discrimination Act 1977?

·Whichever provision applies, should the Appeal Panel order the appellant to pay the respondent’s costs?

10 In submitting that the Tribunal was now functus officio in relation to the question of costs, Ms French’s representative relied on the comments of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530:

Once an order disposing of a proceeding has been perfected by the being drawn up as the record of a Court, that proceeding apart from any specific and relevant statutory provision is at an end in that Court and is in its substance, in my opinion, beyond recall by that Court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a Court to have a power to reinstate a proceeding of which it has finally disposed.

11 We agree with the submission of Ms French’s representative that the Appeal Panel has “perfected” its decision by stating at paragraph 25 of its reasons that “no costs order is made.” The extent to which Tribunals can re-open their decisions, once made, was discussed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. In general, the statutory context in which a decision is made will determine this issue. The ADT Act does not give the Tribunal any power to re-open its decisions. The only related statutory provisions are s 87 of the ADT Act and s 48 of the Interpretation Act 1987. Section 87 of the ADT Act allows the Tribunal (which includes the Appeal Panel) to correct “an obvious error in the text of the decision.” Examples given include where

(a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the decision and the statement of reasons.

12 This provision represents what is known as the “slip rule”. That rule covers mechanical defects as well as the situation where the orders or decision made differ from the reasons. (DJL v Central Authority (2000) 170 ALR 659 at 685 per Kirby J.) In this case the Appeal Panel made a deliberate, rather than an accidental, decision not to award costs and the slip rule cannot apply. (Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391.)

13 Section 48(1) of the Interpretation Act 1987 provides that:

If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.

14 In this case, the character of the power concerned is such that it is not exercisable from time to time but is exhausted once exercised.

15 Based on this analysis the statutory context does not allow the Appeal Panel to re-open its decision. Nevertheless, the High Court in Bhardwaj (Gleeson CJ Gaudron, McHugh, Gummow, Hayne & Calinan JJ, Kirby J dissenting) held that if a Tribunal makes a jurisdictional error when making a decision, the decision may be re-made because it was, in law, not a decision at all. Jurisdictional error includes circumstances where the decision-maker has exceeded his or her power (substantive ultra vires) or has made a procedural error such as breaching the rules of procedural fairness (procedural ultra vires). In Bhardwaj the Immigration Review Tribunal (IRT) had conducted a review in the mistaken belief that the applicant had chosen not to attend. In fact Mr Bhardwaj’s agent had sent a facsimile to the IRT advising that Mr Bhardwaj was ill and seeking another hearing date. The High Court found that the decision that the IRT subsequently made was procedurally unfair as well as lacking in jurisdiction.

16 In this case the Appeal Panel made a decision in relation to costs in the mistaken belief that the respondent had not applied for costs. In doing so it denied the respondent (and the appellant) an opportunity to be heard. The failure to afford procedural fairness amounts to jurisdictional error leading to the conclusion that the decision to make no order as to costs is no decision at all. It is also arguable that the Appeal Panel’s failure to consider the application for costs amounts to substantive, rather than merely procedural ultra vires, but that is an issue we do not need to decide. On the basis of this analysis, the Appeal Panel is not functus officio and can re-open the “decision” in relation to costs.

Which costs provisions apply?

17 Ms French’s representative submitted that the original complaint was dealt with under the savings provisions of the Equal Opportunity Tribunal as incorporated in the Anti-Discrimination Act 1977. The question of costs under that Act is dealt with in s 114 which provides that, in general, each party to an inquiry pay his or her own costs.

18 The present application concerns the question of whether costs should be awarded in relation to the Appeal Panel hearing, not the Tribunal hearing at first instance. In Cargill Australia Limited v Higginson (No.2) (EOD) [2002] NSWADTAP 33 at [11] the Appeal Panel expressed the view that in such cases “. . .the correct provision to be applied in relation to an application for costs in Appeal Panel proceedings is s 88(1) of the ADT Act.” We agree with that conclusion for the reasons stated in the decision.

Should the Appeal Panel order the appellant to pay the respondent’s costs

19 Section 88(1) of the ADT Act states that:

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 there are special circumstances warranting an award of costs.

20 The respondent submitted that the appellant was clearly put on notice prior to the appeal that if she failed to identify a question of law, then she was exposing herself to the risk of a costs order being made against her. Ms French failed to identify any question of law in her written or oral submissions. According to the respondent, her appeal was without any prospect of success and the respondent was put to significant legal costs in responding to it. Those circumstances amount to “special circumstances” and Ms French should be ordered to pay the respondent’s costs.

21 The respondent noted that in Citadin Pty Ltd (No. 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 the Appeal Panel ordered costs in favour of the respondent. In that case, the Appeal Panel noted, at [6], that:

The usual rule in the Tribunal is that parties bear their own costs of proceedings. Being successful in proceedings is not in itself a special circumstance. There must be some additional factor or factors present in the case to justify an award of costs. Withdrawal by an applicant of an application after a date for hearing has been set, and in circumstances where the respondent has incurred expense in briefing counsel, may be such a circumstance: see Graham v Director General, Department of Community Services [2001] NSWADTAP 4.

22 The Tribunal went on to find, at [23] and [24], that:

In the present case the appeal was dismissed as disclosing no sufficiently arguable questions of law. It was reasonable for the respondents to engage counsel given the financial significance of the dispute and the factual and legal complexity inherent in retail leases disputes.

These in our view are factors sufficient in the context of an appeal to amount to 'special circumstances' for the purposes of s 88 and ones that warrant the respondents being given some relief as to costs.

23 The appellant relied on the Appeal Panel’s comment in Cargill Australia Limited v Higginson (No.2) at [15] where it said that one of the relevant considerations to be taken into account in considering whether a costs order should be made against one or more parties to an appeal is as follows: “. . . where there has been a full contest and an appeal is lodged, there may be no order as to costs in relation to the appeal, in keeping with the approach reflected in s 114 of the ADA. The appeal though unsuccessful may have, for example, raised an important point of law that was not free from doubt.” Ms French’s representative also pointed to paragraph 12 of the Appeal Panel’s decision in the present case where it said that:

Ms French represented herself in this appeal. She was advised by the presiding member during directions hearings that she needed to identify a question of law in accordance with s 113(2)(a) of the ADT Act. We acknowledge that people without legal training are at a disadvantage when attempting to identify a question of law.

24 Ms French’s representative further submitted that any applicant for costs has the onus of satisfying the Appeal Panel that “there are special circumstances warranting an award of costs.” According to the appellant, given that s 113 of the ADT Act provides a right of appeal, a mere failure to identify a question of law is not a special circumstance. According to Ms French’s representative, although Ms French did not raise an important point of law, she was exercising her right to appeal and that is a usual circumstance which might be expected under the legislation.

Appeal Panel’s decision on question of costs

25 The Appeal Panel in Citadin decided that a failure to identify a question of law amounted to special circumstances in the context of that case. However, the Appeal Panel differentiated between retail leases disputes, which have a commercial character, and other civil disputes. The Appeal Panel noted at [13], that:

It may be that more use of costs orders should be made where there is an appeal and it is dismissed. At the appeal level, there would seem to be a stronger case for recognising the complexity of retail leases disputes and their commercial character as relevant factors amounting to 'special circumstances'.

26 In Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 the Appeal Panel made some observations about the approach the Appeal Panel should take to an application for costs in equal opportunity matters. In relation to the question of whether the Tribunal should award costs at first instance, the Appeal Panel said, at [42] that:

The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.

27 In relation to costs of an appeal, the Appeal Panel said at [61] to [63], that:

The access principles that may justify a liberal view in respect of non-use of the costs sanction at the primary level of the Tribunal should not be as readily applied in respect of failed appeals.

In equal opportunity appeals a distinction should be drawn between appeals against summary dismissal decisions and appeals in respect of matters that were fully heard and determined. Appellants against summary dismissal decisions who fail on appeal should normally be required to meet the respondent's costs of the appeal (at least to the extent of the services of one legal practitioner). . .

In cases where there has been a full contest and an appeal is lodged, the position will often be different, and often there may be no order as to costs in relation to the appeal . . . The appeal though unsuccessful may have, for example, raised an important point of law that was not free from doubt.

28 The Tribunal did not dismiss Ms French’s application summarily. It did so after a full hearing. Although no point of law was identified, Ms French attempted to do so. She also tried to obtain legal aid but was unsuccessful.

29 We agree with the submission by Ms French’s representative that, in all the circumstances of this case, her failure to identify a question of law does not justify an award of costs being made against her. That conclusion can be distinguished from the situation in the Retail Leases Division of the Tribunal, where parties are involved in a commercial dispute. (See Citadin Pty Ltd (No. 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31.) A party is entitled to appeal against a decision “on any question of law” and, with leave, on the merits. The Appeal Panel’s practice is not to extend an appeal to the merits unless a question of law is at least identified. (Brandusoiu v Commissioner of Police [1999] NSWADTAP 8.)

30 The identification of a question of law is a difficult task, even for lawyers. In the absence of any other relevant considerations, an unrepresented appellant should not be penalised because of his or her inability to identify such a question. If that were not the case, an unrepresented appellant could effectively be excluded from lodging an appeal unless he or she could secure legal representation.

31 The mere failure of the appellant to identify a question of law is not a “special circumstance” which, by itself, would justify an order for costs. The respondent’s application for costs is dismissed.