Green v The National Trust of Australia (NSW) (No.2)

[2006] NSWADT 202

CITATION:	Green v The National Trust of Australia (NSW) (No.2) [2006] NSWADT 202 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Cathy Green RESPONDENT The National Trust of Australia (NSW)
FILE NUMBER:	051008
HEARING DATES:	19/01/2006
SUBMISSIONS CLOSED:	02/02/2006
DATE OF DECISION:	07/06/2006
BEFORE:	Conley J - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Schembri A - Non Judicial Member
CATCHWORDS:	Disability Discrimination - In work
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 75 Lal v President, Anti-Discrimination Board [2000] NSWADT 68 Salama v Qantas Airways Limited (No 2) [2003] NSWADT 5 Sivanathan v Commissioner of Police, NSW Police Service [2002] NSWADT 45
REPRESENTATION:	APPLICANT In person RESPONDENT D Hillard, Solicitor
ORDERS:	That the Applicant pay the Respondent’s costs as agreed or as assessed.

Background

1 This was a complaint of discrimination which was heard by the Tribunal on 19 January 2006. The complaint was dismissed and oral reasons were given on the day. The matter had previously been declined as lacking in substance by the President of the Anti-Discrimination Board (“the ADB”). The Respondent indicated an intention to seek costs and the parties were granted leave to file submissions on costs in accordance with a timetable.

2 The Tribunal dismissed the complaint pursuant to section 92(i) (b) of the Anti Discrimination Act 1977 (the Act) on the ground of “for any other reason”, namely want of prosecution combined with an acknowledgement by the Applicant that the complaint was lacking in substance. In summary in the reasons for decision dismissing the complaint the Tribunal stated that:

The circumstances of this matter are unusual. These circumstances include the fact that the President declined the Applicant’s complaint as lacking in substance because a lack of evidence, the Applicant acknowledged to the President in writing that she could not provide any evidence, the Applicant did not provide any further evidence to this Tribunal. She indicated at the outset of the proceedings that she was not prepared to deal with the substantive hearing and also stated that she could not succeed with the complaint. We also note that the Applicant had indicated an intention to leave prior to us taking an adjournment and has in fact left the hearing. We therefore find that it is appropriate in these circumstances to dismiss the complaint.

3 The Respondent filed submissions seeking an order for costs on 2 February 2006. The Applicant did not file submissions. The submissions were referred to the Tribunal for decision in May 2006.

The Respondent’s submissions

4 The Respondent seeks an order for costs pursuant to section 110 (2) of the Anti-Discrimination Act. The Respondent submits that an order for costs is appropriate in the specific circumstances of this matter. The Respondent outlines the following factors as justification as to why the Tribunal should exercise its discretion and make an order for costs in the Respondent’s favour.

(a) The complaint has been declined as lacking in substance under s92(a) of the Act;

(b) The Applicant acknowledged to the President of the ADB that she had no evidence to support her complaint, and acknowledged to the Tribunal that she was pursuing a complaint which she knew she could not win;

(c) The Applicant failed to respond (let alone accept) a reasonable settlement offer prior to the hearing;

(d) The Applicant was not ready to proceed with her complaint on the hearing date, and left the hearing, rather than proceed with her complaint.

5 The Respondent refers to the decision of Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 (“Crewdson”) in which Judicial Member Rees expressed the opinion that it should be a rule of practice that the Tribunal order costs against an unsuccessful complainant in circumstances where the complaint has been declined by the ADB unless truly exceptional circumstances exist to justify not making such an order.

6 The Respondent also relies upon the decision of Lal v President, Anti-Discrimination Board [2000] NSWADT 68 in which Deputy President Hennessy endorsed the remarks in relation to costs expressed in Crewdson. The Deputy President states, “Where the complaint is ultimately dismissed, the Tribunal should in the absence of truly exceptional circumstances, order the complainant to pay the respondent’s costs”.

7 It was conceded by the Respondent that in Salama v Qantas Airways Limited (No 2) [2003] NSWADT 5 the Tribunal had noted that while the fact that the President declined a complaint is highly relevant, and should be given significant weight, it did not agree that it is necessary to establish “truly exceptional circumstances” to escape an order for costs.

The Applicant’s submissions

8 The Applicant did not make any submissions.

The Decision

9 In the decision of Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 75 at 48 (“Harding”) Deputy President Hennessy referred to the decision of Sivanathan v Commissioner of Police, NSW Police Service [2002] NSWADT 45. In that matter the Tribunal noted that the fact that a complaint had been declined by the President of the ADB and then the complainant has exercised their right to have the matter determined by this Tribunal may be strong grounds for ordering costs against the unsuccessful complainant.

10 In Harding the Deputy President noted in addition to the President of the ADB declining the complaint, the complainant had also failed to appear at the hearing which put the Respondent to additional and unnecessary expense. The Tribunal found that in those circumstances while not necessarily amounting to an abuse of process, the circumstances justified an order for costs.

11 In the circumstances of this matter the complaint was declined by the President of the ADB. The Tribunal has regard to the Applicant’s written concession to the President of the ADB that she was unable to supply evidence to support her complaint and requested the matter be referred to this Tribunal. No further evidence was filed. Despite a number of case conferences in preparation for the hearing the Applicant made it clear from the outset of the hearing that she was not prepared to have the matter heard on the day and in fact left the hearing prior to the finalisation of the matter on the day.

12 While the circumstances of this matter are somewhat different to those of Harding the Applicant was quite clear that she would not be participating in a substantive hearing on the day.

13 The complainant did exercise her right to have the Tribunal determine the matter after the President declined the compliant. In considering the application for costs the Tribunal must have regard to the circumstances of this matter including the Applicant’s conduct. The Tribunal considers that the circumstances of this matter are such that justify an order for costs in the Respondent’s favour.

11/07/2006 - Amending the application type on cover sheet to read 'Disability Discrimination - In work'. - Paragraph(s) cover sheet