Haas v Hosking (No 2)

[2010] NSWADT 203

CITATION:	Haas v Hosking (No 2) [2010] NSWADT 203
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Peter Haas RESPONDENT Phillip Hosking
FILE NUMBER:	081088
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	21 May 2010
DATE OF DECISION:	16 August 2010
BEFORE:	Perrignon R - Judicial Member; Kelleghan D - Non-Judicial Member; Monaghan-Nagle L - Non-Judicial Member
CATCHWORDS:	Costs - complaint of racial vilification - whether proceedings conducted vexatiously - whether failure to comply with Tribunal’s directions - whether proceedings unreasonably prolonged - special considerations applying to proceedings in Equal Opportunity Division
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	AT v Commissioner of Police [2010] NSWCA 131 MT v AA (no 2) EOD [2010] NSWADTAP 28 Murtough v NSW Bar Association [2008] NSWADT 166 Tu v University of Sydney (No. 2) [2002] NSWADTAP 25
REPRESENTATION:	APPLICANT In person RESPONDENT A Connolly, barrister
ORDERS:	The Respondent’s application for costs is dismissed

REASONS FOR DECISION

1 On 11 February 2010, the Tribunal dismissed a complaint of racial discrimination by Mr Haas against Mr Hosking. The proceedings were heard over a period of four days from 11 February 2009 to 6 July 2009. Mr Hosking seeks an order for his costs of the proceedings, or such of those costs as the Tribunal considers fair.

Complaint and findings

2 On 28 April 2008, Mr Haas had complained to the Anti-Discrimination Board that, on 1 November 2007, Mr Hosking had attended Mr Haas’ property at Moama and racially vilified him, by saying ‘that he was not going to have fucking Jews build anything near him’, or ‘that he was not going to let fucking Jews build a shed near him’.

3 Mr Haas did not hear the remarks. He was not present when they were allegedly made. He was not told of them until some months later, when his friend and near neighbour, Lindsay Vagg, showed him a note he had made of the remarks. Another resident, Mr Falzon, had also been present. At Mr Haas’ request, each provided a brief statement of a few paragraphs. These statements were lodged with the Board by Mr Haas in support of his complaint.

4 They were also tendered in evidence before the Tribunal. Mr Haas relied on them, and on oral evidence of Mr Vagg and Mr Falzon, to prove that the remarks had been made. The Tribunal was not satisfied that either witness was reliable. It was not satisfied that the remarks were made.

5 However, the Tribunal was satisfied that Mr Haas believed the remarks had been made, that he was genuinely affronted by them, and that, had they been made, he would have had good reason to be affronted. It was unnecessary to determine whether the remarks, if made, would have constituted racial vilification under the Anti-Discrimination Act 1977.

6 The Tribunal’s power to make costs orders in complaints referred to it under the Anti-Discrimination Act 1977 is to be found in Section 110 of that Act, which provides:

‘The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint.’

7 Section 88 of the Administrative Decisions Tribunal Act 1997 provides:

‘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.


(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.’

8 In their current form, sections 110 and 88 were inserted by the Administrative Decisions Tribunal Amendment Act 2008, with effect from 1 January 2009. The Applicant does not contest the Respondent’s submission that they apply in that form in this case.

9 Section 88(1) gives effect to the long-standing practice of the Tribunal that, generally speaking, each party is to bear its own costs. The Tribunal may only vary that practice if it considers it ‘fair to do so’: section 88(1A). In determining whether it is fair, the Tribunal must have regard to the matters set forth in section 88(1A).

10 For the reasons set forth in his written submissions, Mr Hosking submits that it would be fair to grant him an order for costs. Those reasons may be summarised briefly as follows.

1) Mr Hosking was unnecessarily disadvantaged, because the proceedings were conducted vexatiously, in the following way.

a) Mr Haas was motivated to bring the proceedings, not by reason of genuine affront, but:


i) by a desire to ‘strike back’ at Mr Hosking, or provide a ‘retort’ to him, for commencing proceedings in the Supreme Court for orders that Ms Haas pull down a shed on his land, and

ii) by other concerns or suspicions he entertained about Mr Hosking’s conduct which were hinted at before the Tribunal, but not fully ventilated.


b) The fact that he was legally represented before the Supreme Court, but self-represented before the Tribunal, and that he did not seek legal advice in relation to his complaint, coupled with his failure to prepare any written evidence apart from what had been lodged with the Board and the absence of submissions by him on the law, confirms that the complaint proceedings were ‘ancillary and subordinate’ to the Supreme Court proceedings.

c) The relief sought – a public apology – was unreasonable and inappropriate, because it was calculated to punish Mr Hosking by humiliating and harassing him, without commensurate benefit to Mr Haas. Indeed, it could have compounded his injury, by publicising the nature of the remarks the subject of complaint.

d) The proceedings were ‘based on an inadequate foundation’.


2) Mr Hosking was unnecessarily disadvantaged by Mr Haas’ unreasonable failure to comply with the Tribunal’s direction to file and serve witness statements by 29 October 2008. He served only the material which he had already lodged with the Anti-Discrimination Board – that is, come correspondence, his own complaint, and the two statements of Messrs Vagg and Falzon. The latter were comprised of a few paragraphs each. As each gave lengthy oral evidence, expanding on his statement, the Tribunal would infer that full statements had not been served.

3) Mr Haas unreasonably prolonged the proceedings, by adducing lengthy oral evidence from Messrs Vagg and Falzon expanding on their statements.

4) A costs order is appropriate having regard to the relative strengths of the parties’ claims. The case brought by Mr Haas had little merit, because the Tribunal was not satisfied that Mr Hosking had made the remarks alleged. Even if it had been satisfied, there remained ‘substantial hurdles’ in proving that they constituted vilification. In those circumstances, the Tribunal would infer that the proceedings had been commenced with ‘little consideration for the weakness of the applicant’s case’.

5) The nature of the proceedings would incline the Tribunal to make an order for costs, because Mr Hosking had to incur the expense of legal representation – and did so properly - to defend his public reputation as a councillor on the Murray Shire Council.

11 Mr Hosking submits that the Tribunal should take into account the following additional matters under section 88(1A)(e):

1) The complaint was dismissed.

2) As the applicant represented himself, he incurred minimal expense.

3) The parties were warned by the Tribunal that an adverse finding might entail an order for costs.

4) Mr Hosking engaged in settlement discussions with Mr Haas on more than one occasion.

5) Where, as here, a self-represented party incurs minimal costs in pursuing a complaint, and the respondent is forced to incur substantial costs in his or her defence, it is inequitable that the moving party should be permitted to ‘chance his hand on an unmeritorious case with no adverse consequences to himself, while the respondent will pay the whole price of having successfully defended himself’.

6) The Tribunal would not be disinclined to make an order for costs, merely because it might deter complainants from proceeding in cases where, as here, the comments complained of are ‘alleged to have been made in a private conversation between people well known to each other’.

5) In April 2009, Mr Haas applied unsuccessfully to issue summonses. His application was misconceived. Mr Hosking incurred unnecessary legal costs in making submissions against the application.

12 Mr Haas says that an order for costs would not be fair, for reasons also set forth in detail in written submissions. They may be summarised as follows.

1) He did not conduct the proceedings vexatiously, for these reasons.


a) He was motivated to complain by the extreme afront which the alleged comments caused to him and to his wife. He was prepared to settle the proceedings amicably, by conciliation or mediation. Mr Hosking was not interested. On 23 June 2008, Mr Hosking’s solicitors had told the Anti-Discrimination Board, ‘Mr Hosking has no interest in mediating a resolution of the Complaint made under the Act.’ The Board decided to refer the complaint to the Tribunal because Mr Hosking had ‘no interest in a conciliated resolution of the complaint’. When the proceedings were before the Tribunal, Mr Haas offered to enter into mediation, but was rebuffed by Mr Hosking.

b) The relief sought - namely, a public apology – was appropriate in the circumstances, and not designed to punish or humiliate.

c) Mr Haas had a right to represent himself before the Tribunal: section 71(1)(a), Administrative Decisions Tribunal Act 1997 . He should not be disadvantaged by reason of having availed himself of that right.


2) Mr Haas complied with the Tribunal’s direction of 29 October 2008, by serving his own correspondence with the Board, the witness statements of Messrs Vagg and Falzon, and other documents submitted to the Board. He had no personal knowledge of the comments complained of, apart from what was said by his two eye witnesses.

3) Mr Haas did not unreasonably prolong the hearing. He had complied with the Tribunal’s orders as to service of evidence.

4) In making his complaint, Mr Haas believed and relied on the evidence of his two eye witnesses, whom he considered credible and honest. Having not had the advantage of seeing either give evidence, he was not aware that there would be any discrepancies in their evidence, as occurred before the Tribunal. The case did not appear to him to be either untenable nor groundless.

5) Mr Hosking was elected to Murray Shire Council in about September 2008, after the complaint was lodged. That fact would not incline the Tribunal to make an order for costs which it would not otherwise make.

13 Mr Haas submits that the Tribunal would not depart from the established procedure of making no order as to costs, and asks that the following additional factors be taken into account.

1) In the Tribunal, costs do not automatically follow the event.

2) Mr Haas did incur expenses in connection with the proceedings. He had to arrange travel and accommodation for himself (from Melbourne) and his witnesses (from Moama), and lost time which would otherwise have been spent trading in his business.

3) Mr Haas’ offers to enter into mediation and conciliation were, on the whole, rebuffed by Mr Hosking.

4) The complaint was made in good faith, and in reliance on the evidence of Mr Vagg and Mr Falzon.

5) The Tribunal was satisfied that Mr Haas was genuinely affronted by the alleged remarks.

Consideration

14 Section 88(1) enshrines the ‘general rule’ that costs in the Tribunal do not automatically follow the event: MT v AA (no 2) EOD [2010] NSWADTAP 28 at [3]. In determining whether it is ‘fair’ to depart from the general rule, the Tribunal has regard to each of the matters enumerated in section 88(1A). So far as they are relied on by Mr Hosking, each is considered in turn below.

Whether proceedings conducted vexatiously – paragraph (a)(vi)

15 The Tribunal was satisfied that Mr Haas was genuinely affronted by the alleged remarks, and that, had they been made, he would have had good reason to be. That was sufficient motivation to make the complaint to the Board. The Board then referred the matter to the Tribunal. The Tribunal is not satisfied that Mr Haas entertained any improper motive, such as to obtain a collateral advantage in other proceedings, or to exact revenge for the commencement of proceedings in the Supreme Court.

16 In circumstances where, as the Tribunal accepts, Mr Haas believed his witnesses to be credible and honest, his seeking relief by way of public apology was neither excessive nor inappropriate. The fact that he sought no monetary relief, and therefore no economic benefit, demonstrates restraint on his part, and tends to corroborate the genuine nature of his affront. The possibility that the relief sought might have compounded his injury, by making the insult more generally known, does not incline the Tribunal to the contrary view. From a complainant’s point of view, such relief might well have countervailing value as a deterrent. Likewise, the fact that a public apology might have been regarded as a punishment by the Respondent does not make it inappropriate, or justify an award of costs.

17 Mr Haas’ exercise of the statutory right to represent himself, rather than to incur the expense of legal representation, does not negate his assertions, or the Tribunal’s inferences, as to his true motivation for making the complaint. Nor does it establish that these proceedings were ‘ancillary and subordinate’ to the Supreme Court proceedings. The exercise of that right might equally have been born of a desire to conserve much-needed funds. The absence of considered legal advice, of more detailed statements, and of submissions on the law, probably flows from the lack of representation. It does not establish vexatious conduct.

18 The submission that the proceedings were based on an ‘inadequate foundation’, as it has been argued, amounts to little more than that the Tribunal was not convinced by the evidence. Though that is a relevant consideration, it is alone insufficient to justify a costs order, as costs do not automatically follow the event.

Failure to comply with order – paragraph (a)(i)

19 Strictly speaking, Mr Haas complied with the Tribunal’s order of 29 October 2008 by serving the statements of Messrs Vagg and Falzon, the complaint itself, and all correspondence with the Board. No other statements of himself, Mr Vagg or Mr Falzon were relied on at the hearing. The complaint that Mr Haas adduced additional oral evidence is better characterised as one going to unreasonably prolonging the proceedings. That is considered below.

Unreasonably prolonging the proceedings – paragraph (b)

20 At the hearing, Mr Haas led evidence from his two eye witnesses, which added detail to their statements. That additional evidence lasted for the afternoon of the first day of hearing, and for a matter of minutes (in the case of Mr Falzon) on the morning of the second. To that extent, it is possible that the failure to include it in statements of a more substantial character prolonged the proceedings.

21 However, no objection was made to the leading of that extra evidence. Every opportunity was given to Mr Hosking’s counsel to cross-examine on it. In Mr Falzon’s case, that cross-examination was successful. The additional evidence was helpful to the Tribunal in evaluating the strength of the evidence and the reliability of the witnesses. It was manifestly of forensic advantage to the Respondent.

22 Mr Haas likewise gave oral evidence, expanding upon his complaint. It took the form of responding to questions from the Tribunal. It was helpful in delineating the issues of fact, both for the Tribunal, and for Mr Hosking.

23 In those circumstances, the Tribunal is not satisfied that, to the extent any additional evidence prolonged the hearing, it did so unreasonably.

Relative strengths of the parties’ claims – paragraph (c)

24 The Tribunal was not satisfied that the remarks complained of were made, or that any conversation which occurred between Mr Hosking and Mr Vagg constituted a ‘public act’, in the sense that it could be overheard by members of the public. That conclusion was reached after a detailed consideration of the evidence, as tested under skilful cross-examination, and after a comparison of the evidence of each witness. The mere fact that the Tribunal is not satisfied as to the reliability of evidence brought by a party would not alone incline it to make a costs order, at least in a case where the complainant had no obvious reason for doubting the reliability of his or her witnesses.

Nature and complexity of proceedings – paragraph (d)

25 It was proper and prudent for Mr Hosking to incur the expense of legal representation, given the nature of the allegations against him. That would be so, whether or not he had been elected to a local Council after the complaint was made. However, the mere fact that a party chooses to be legally represented, even where that choice is prudent – as it commonly is – does not justify an award for the costs for that representation, or establish that the nature of proceedings are such as to do so. It goes to the question of quantum, if a costs order is made.

Other factors – paragraph (e)

26 The fact that the complaint was dismissed is relevant, but not determinative of the claim for costs. The fact that Mr Haas exercised his right to represent himself should not expose him to penalty, including the imposition of an order for costs. In any event, the purpose of costs orders is not punitive, and the Tribunal is not satisfied that his costs of the proceedings were ‘minimal’ as alleged. Those costs have not been quantified. The fact that Mr Hosking engaged in settlement discussions, in the absence of any evidence as to their content, does not incline the Tribunal to make an award for costs, particularly in view of his earlier refusals to conciliate or mediate.

27 Mr Hosking submits that it would be inequitable that an Applicant, by representing himself, be allowed to ‘chance his hand on an unmeritorious case with no adverse consequences to himself, while the respondent will pay the whole price of having successfully defended himself’. Any deterrent effect on making complaints of a similar nature, he says, ought not disincline the Tribunal to make the order sought.

28 Before the substitution of section 110 of the Anti-Discrimination Act 1977 in its current form on 1 January 2009, full costs orders against a complainant in the Equal Opportunity Division tended 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’: Tu v University of Sydney (No. 2) [2002] NSWADTAP 25 at [42].

29 The current version of section 88 was considered by Deputy President Chesterman, sitting in the Equal Opportunity Division, in O’Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188. He observed [at 26-27]:

‘26 The current version of section 88, in which the criterion of ‘fairness’ stated in subsection (1A) has replaced a rule that in the absence of ‘special circumstances’ no costs might be awarded, became operative on 1 January 2009. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 at [72], the Tribunal stated:-

What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant’s entitlement to costs. …[T]he result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.

27 The foregoing dicta may be contrasted with the following observations made in a case ( Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226 at [15]) decided in the Equal Opportunity Division under the ‘old’ section 88:-

15 Costs orders are rarely made against unsuccessful applicants in anti-discrimination matters. The Appeal Panel observed in Tu v University of Sydney (No 2) [2002] NSWADT 22 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.’

30 The current version of section 110 was considered by the Appeal Panel in MT’s case. The Panel observed [at 4-5]:

‘4 …. There is no issue of statutory construction in these proceedings which would give rise to a beneficial interpretation [of section 110] being preferred. The test is plain. The Appeal Panel must be satisfied that it is ‘fair’ to award costs having regard to the matters listed in s 88(1A) of the ADT Act which includes any matter that the Appeal Panel considers relevant. While one of those considerations is whether proceedings have been conducted vexatiously, that is not the only relevant matter.

5 Nevertheless, … it is relevant that these proceedings are in the Equal Opportunity Division rather than, for example, in the Retail Leases Division where parties are in a commercial relationship: Gizah Pty Limited v AXA Trustees Limited (No 2) NSWADT 164 at [16]. We accept that the Tribunal has been more inclined to make costs orders in cases in the Retail Leases Division given the commercial nature of those proceedings: Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 at [37].’

31 In AT v Commissioner of Police [2010] NSWCA 131, the Court of Appeal considered the provisions of section 88, in relation to proceedings which had been conducted at first instance in the Tribunal’s General Division. In that case, the Court of Appeal ordered that the Commissioner of Police pay the applicant’s costs of, inter alia, a successful application at first instance. Basten JA said [at 33]:

‘33 That approach [of ordering the Commissioner of Police to bear the applicant’s costs of a successful application for review] 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 sub-s (1A), but subject to the generality of paragraph (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 .’

32 His Honour had earlier observed [at 30]:

‘30 There will, as the Chief Justice [in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150] recognised … be cases in which it may be appropriate for this Court to defer to the specialist court or tribunal, on the basis that it will have a better understanding of the possible consequences, within its own jurisdiction, of the exercise of the power to award costs.’

33 Though His Honour was not there specifically referring to the Equal Opportunity Division of this Tribunal, his remarks are consistent with the view that specialist jurisdictions of that nature are often well placed, within the confines of their statutory powers and discretions, to identify factors relevant to the award of costs.

34 Having regard to these observations of the Court of Appeal and of the Tribunal, it is appropriate in this case to take into account the fact that the proceedings were brought in the latter’s Equal Opportunity Division, and were not proceedings of a commercial character.

35 In Murtough v NSW Bar Association [2008] NSWADT 166, Deputy President Britton, sitting in the Equal Opportunity Division, observed at [27]:

‘A determination of the question whether costs should be awarded requires a balance to be struck between the “chilling effect” of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings.’

36 The learned Deputy President was there considering section 110 in it previous form, but as the general rule that costs do not follow the event is preserved in the current form of section 88(1) of the Administrative Decisions Tribunal Act 1997, her comments apply equally to its present form.

37 As the Appeal Panel observed in Tu’s case [at 39]:

‘Equal opportunity tribunals have referred to the special character of the jurisdiction, which seeks to protect and promote the observance of fundamental human rights. For example in Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) it was said that the human rights protection objective ‘might be thwarted if complainants were to be discouraged from pursuing claims before the Tribunal due to fear of the amounts that may be awarded against them for inter alia legal costs if unsuccessful on those claims’.’

38 In exercising its discretion under section 88(1A)(e) to take into account ‘any other matter that the Tribunal considers relevant’, it is proper for the Tribunal to take into account the fact that proceedings are bought in its Equal Opportunity Division, that it is a human rights jurisdiction, the public benefit that such a jurisdiction provides, and the potential ‘chilling effect’ of too readily making costs orders against an unsuccessful complainant. Those considerations, of course, may not be entertained in isolation. They must be weighed together with the factors listed in section 88(1A). The aim of the weighing process is to determine whether the imposition of a costs order would be ‘fair’. The previous practice of refraining from making costs orders except where there has been an abuse of process - in the sense that the complainant acted frivolously, vexatiously or without good faith (Tu’s case [at 42]) - or where special circumstances are demonstrated (O’Sullivan [at 26]) has been displaced by the provisions of section 88 as they now stand.

39 Before weighing all the factors prescribed by that section, it is appropriate to deal with Mr Hosking’s specific application for costs of making submissions against Mr Haas’ unsuccessful application to issue summonses in April 2009.

Application to issue summonses

40 Mr Hosking’s submissions on that application were contained in a 2-page letter from his solicitors to the Tribunal dated 8 May 2009. Mr Haas had already closed his case. The proceedings had been adjourned for further hearing on a later date.

41 Mr Haas had applied for summonses to be issued to two witnesses, Messrs Rourke and Moon. Their character references in support of Mr Vagg had already been tendered by him and admitted into evidence. The Tribunal inferred that Mr Haas was intending to present them for cross-examination. It rejected his application, as Mr Hosking submitted that he did not require either witness for cross-examination. Mr Haas was only seeking to do what he considered proper, either as a matter of fairness to the Respondent, or in response to what he understood were the requirements of litigation. There was no evidence that he knew the witnesses were not required for cross-examination. There was no evidence that they had undertaken to appear in the absence of a summons. In those circumstances, an award of costs is not appropriate.

42 Mr Haas also applied for a summons to be issued to Mr Sharp, whose witness statement had been filed and served by Mr Hosking. He wished to cross-examine Mr Sharp. His application was rejected, because Mr Hosking then informed the Tribunal that he did not intend to rely on Mr Sharp’s evidence. There is no evidence that Mr Haas had been notified of this. He was under the opposite impression. In the circumstances, it was reasonable for him to ensure Mr Sharp’s attendance for cross-examination. He might have done so by direct communication with Mr Hosking’s lawyers, or by an application to issue a summons. He chose the latter. As no notice of Mr Hosking’s intention had been given to him, an order for costs is inappropriate.

Weighing of factors

43 The Tribunal is required to have regard to each of the factors listed in section 88(1A), whether or not they are relied on by the Respondent. Its finding in respect of each factor is as follows, in the order in which each appears in the section:

a) Mr Hosking was not unnecessarily disadvantaged by the conduct of the proceedings, in that:


(i) Mr Haas did not fail to comply with an order or direction of the Tribunal,

(ii) there is no evidence that he failed to comply with the Administrative Decisions Tribunal Act 1997 , the regulations, the rules of the Tribunal or any relevant provision of the Anti-Discrimination Act 1977 ,

(iii) Mr Haas did not ask for any adjournment as a result of a failure referred to in subparagraph (i) or (ii),

(iv) Mr Haas did not cause an adjournment,

(v) Mr Haas did not attempt to deceive another party or the Tribunal, and

(vi) for the reasons given, Mr Haas did not conduct the proceedings vexatiously.


(b) Though Mr Haas prolonged the time taken to complete the proceedings by bringing extra evidence over the course of an afternoon and a matter of minutes on the next day of hearing, he did not do so unreasonably.

(c) The claims made by Mr Haas were not strong, when regard is had to the evidence as it was tested before the Tribunal, though its weaknesses were not known to him prior to the hearing and the testing of that evidence in cross-examination.

(d) Neither the nature nor the complexity of the proceedings was such as to incline the Tribunal to make a costs order.

44 The penultimate finding is, to a degree, against Mr Haas. However, when weighed with the other factors, including (a) the factors considered above under paragraph 88(1A)(e), and (b) the special nature of the human rights jurisdiction exercised by the Tribunal in its Equal Opportunity Division, the Tribunal is not satisfied that it would be fair to make an order for costs against him, either in respect of the proceedings generally or any part of them. That would be so, even if it did not take into account the special nature of the human rights jurisdiction exercised by the Tribunal in its Equal Opportunity Division.

45 For those reasons, the Respondent’s application for costs is dismissed.