Hammond v Kelky Pty Ltd t/as Tattersalls Hotel Gilgandra (No. 2)
[2013] NSWADT 40
•18 February 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Hammond v Kelky Pty Ltd t/as Tattersalls Hotel Gilgandra (No. 2) [2013] NSWADT 40 Hearing dates: 5 February 2013 Decision date: 18 February 2013 Before: Magistrate N Hennessy, Deputy President Decision: The respondent's application for costs is refused
Catchwords: COSTS - application by successful respondent for costs - complaint of race discrimination - whether no tenable basis in fact or law - whether unreasonable delay Legislation Cited: Administrative Decisions Tribunal Act 1997
Legal Aid Commission Act 1979Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131
Hammond v Kelky Pty Ltd t/as Tattersalls Hotel Gilgandra [2013] NSWADT 4
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30Category: Costs Parties: Dulcie Alisia Hammond (Applicant)
Kelky Pty Ltd t/as Tattersalls Hotel Gilgandra (Respondent)Representation: Legal Aid NSW (Applicant)
Whiteley, Ironside & Shillington (Respondent)
File Number(s): 121075
REASONS FOR DECISION
Introduction
Following a hearing, the Tribunal dismissed a complaint by Ms Hammond that an employee of the Tattersalls Hotel Gilgandra had discriminated against her on the ground of her race. The Hotel has applied for costs. I have not ordered Ms Hammond to pay the Hotel's costs because the general rule is that each party pays their own costs. I am not satisfied that it is fair to depart from that rule in this case.
Power to award costs
The Tribunal has power to award costs in accordance with s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Costs may only be awarded if the Tribunal is satisfied that it is fair to do so having regard to certain matters. The three matters on which the Hotel relied in this case are set out in s 88(1A)(b)(c) and (e):
(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,
(e) any other matter that the Tribunal considers relevant.
In AT v Commissioner of Police, NSW [2010] NSWCA 131 at [26], the Court of Appeal held that the criterion of fairness was "not qualitatively different" from "the exercise of an unfettered discretion". At [33], the Court emphasised the general principle that each party should bear its own costs adding that:
Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.
In relation to the objects of the ADT Act and the nature of the jurisdiction, the Appeal Panel has made the following observations about cases in the Equal Opportunity Division in Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30 at [6] - [9]:
It has been most unusual for costs orders, especially full costs orders, to be made against a complainant in the equal opportunity jurisdiction.
The equal opportunity jurisdiction serves the important social purpose of providing a facility for the resolution of grievances over perceived unlawful discrimination against individuals on the basis of irrelevant personal characteristics or attributes, such as gender, race and marital status. The making of costs orders may discourage people from airing their grievances. The primary rule reinforces these public interest objectives. The exception is not lightly to be applied.
This Tribunal's costs rule is similar to the costs rule that applies in the Victorian Civil and Administrative Tribunal (VCAT): see Victorian Civil and Administrative Tribunal Act 1998, s 109. Morris J, then President of VCAT, sitting in that Tribunal's Planning List, noted in Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059:
It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that 'it is fair to do so' will influence the manner in which a particular jurisdiction operates. Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal.
In my view, these considerations apply with additional force to a human rights jurisdiction of the kind that the Equal Opportunity Division is.
If the Tribunal makes an order for costs against a party represented by Legal Aid NSW, Legal Aid NSW must pay those costs but only up to an amount of $5,000: Legal Aid Commission Act 1979, s 47. The Hotel's lawyers gave evidence that their client's costs were $12,126.75 but claimed $5,000.
Grounds for costs application
The relative strength of the claims etc
The Hotel's primary submission was that it was obvious that Ms Hammond could not succeed on the basis of the evidence presented. In addition, on two occasions the Hotel invited Ms Hammond to withdraw but she refused to do so.
On 9 November 2012, the Hotel's lawyers wrote to Legal Aid NSW expressing the view that the complaint had no tenable basis in fact or law. The lawyers invited Legal Aid NSW to withdraw Ms Hammond's complaint within 14 days on the condition that each party pay their own costs. The lawyers foreshadowed an application for costs if the complaint was not withdrawn and the Hotel was successful.
On 11 December 2012, the Hotel's lawyers wrote again advising that if the Tribunal dismissed the complaint, a costs order would be sought against the lawyer representing Ms Hammond personally. The foreshadowed basis for that application was that Ms Hammond's claim had no tenable basis in law. Alternatively, the Hotel's lawyer advised that they would apply for costs against Ms Hammond.
The complaint was not substantiated and was dismissed: Hammond v Kelky Pty Ltd t/as Tattersalls Hotel Gilgandra [2013] NSWADT 4. When responding to the application for costs, Legal Aid NSW made no submission about the strength of the case.
The facts were that an employee of the Hotel told Ms Hammond, an Aboriginal woman, to leave the Hotel because she was barred. Ms Hammond left the Hotel but the employee later acknowledged that he had mistaken Ms Hammond for another Aboriginal woman who had previously been barred from the Hotel. While there was a dispute about when this incident occurred, there was no dispute that it did occur. The Tribunal decided that the employee did not refuse to serve Ms Hammond on the ground of her race. Rather, the only real or genuine reason for the refusal was that he mistook her for someone else.
While Ms Hammond's complaint was not substantiated, it was not untenable. The issue of causation, that is whether the refusal of the service was on the ground of Ms Hammond's race, is not straightforward. High Court justices have expressed varying views on the degree of connection a person's race must have with the allegedly discriminatory act: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 143-144. While Legal Aid NSW did not make submissions about the alternative views, it would have been open for it to do so.
It is not fair to award costs having regard to 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.
Prolonging unreasonably the time taken to complete the proceedings
The Hotel's alternative submission was that Legal Aid NSW unnecessarily prolonged the proceedings by:
(1) failing to agree to the statement of agreed facts prepared by the Hotel in circumstances where those facts were not contentious and the Tribunal ultimately made findings which were consistent with that statement;
(2) failing to advise the Hotel until the day of the hearing that two witnesses, Mr Welsh and Mr Nagle, would not be required for cross-examination.
If this alternative submission was successful, the Hotel's costs were $1400 plus GST for 4 extra hours of hearing time at $350 per hour.
According to the Hotel, the hearing was prolonged because of the way it was conducted by Ms Hammond's lawyer. The Hotel sought to narrow the issues by proposing an agreed set of facts and enquiring on several occasions whether two witnesses were required for cross-examination. Ultimately, Ms Hammond's lawyer did not adduce evidence or cross-examine witnesses in a way which sought to challenge those agreed facts. It was not until the hearing day itself that Ms Hammond's lawyer told the Hotel's lawyer that he did not require two witnesses for cross-examination.
Ms Hammond's lawyer said in response that when he received the letter of 11 December 2012 foreshadowing a personal costs application, the matter was referred to a senior solicitor for advice. He said that that interfered with the preparation of the claim for hearing because he did not have the opportunity to communicate with the Hotel's lawyers about agreed facts or which witnesses were required for cross-examination.
Ms Hammond's lawyer also said that the Hotel's lawyer did not tell him until the day of the hearing that he disputed Ms Hammond's assertion that the incident had taken place on 12 November 2011. The Hotel's lawyer had agreed to that allegation in its Points of Defence. Ms Hammond's lawyer did not object to an amendment of the Points of Defence and the hearing went ahead.
After being given permission to speak to the two witnesses informally at the hearing, Ms Hammond's lawyer confirmed that they had no personal knowledge of any of the allegations. Their evidence related to their observations of the Hotel employee on other occasions.
Both parties contributed to the proceedings being prolonged. Ms Hammond's lawyer failed to respond to the proposed statement of agreed facts or to advise whether he required two witnesses for cross-examination. On the day of the hearing the Hotel's lawyer denied an allegation that had previously been admitted. On the basis of the evidence I am not satisfied it is fair to award costs on the basis that Ms Hammond's lawyer unreasonably prolonged the time taken to complete the proceedings.
Order
The respondent's application for costs is refused.
Decision last updated: 18 February 2013
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