Hendrickson v Yarra Bay 16 ft. Skiff Sailing Club Lid (No 2)

[2011] NSWADT 204

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd (No 2) [2011] NSWADT 204
Hearing dates:	On the papers
Decision date:	30 August 2011
Jurisdiction:	Equal Opportunity Division
Before:	S Rice, Judicial member L Monaghan-Nagle, Non-Judicial member L Mooney, Non-Judicial member
Decision:	The Applicant is to pay three quarters (75%) of the Respondent's costs incurred on and after 8 November 2007, as agreed or assessed
Catchwords:	Costs, discrimination
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW)
Cases Cited:	Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 Murtough v NSW Bar Association [2008] NSWADT 166 Rae -v- Commissioner of Police, New South Wales Police Force (2011) NSWADTAP 30
Category:	Costs
Parties:	Avgoulla Hendrickson (Applicant) Yarra Bay 16 ft Skiff Sailing Club Ltd (Respondent)
Representation:	Counsel S Coleman,(Applicant)
File Number(s):	071076

Reasons for decision

Background

1. On 24 February 2011 the Tribunal published its decision and reasons, dismissing complaints of discrimination and victimisation made by Ms Avgoulla Hendrickson against Yarra Bay 16 ft Skiff Sailing Club Ltd.

1. In its decision the Tribunal commented on the manner in which the proceedings were conducted. The Tribunal expressed the preliminary opinion that in this case fairness does not require displacement of the statutory presumption that each party will pay their own costs (s88 Administrative Decisions Tribunal Act 1997 (NSW)). The Tribunal did, however, invite the parties to make an application for costs if they wished.

1. The Club subsequently applied for a costs order and filed submissions in support of the application. Ms Hendrickson filed submissions resisting the application.

1. In this jurisdiction, each party is to bear their own costs, except when the Tribunal is satisfied that it is fair to award costs having regard to considerations prescribed in s88(1)(a)-(e) of the Administrative Decisions Tribunal Act 1997 (NSW). The exception is 'not lightly to be applied' ( Rae -v- Commissioner of Police, New South Wales Police Force (2011) NSWADTAP 30, [7), because the risk of a costs order may ' discourage people from airing their grievances' . Although the prospect of a costs order helps 'to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others' ( Murtough v NSW Bar Association [2008] NSWADT 166, [27]), this a statement of the conventional policy rationale for there being the prospect of a costs order, and the situation under the Administrative Decisions Tribunal Act is that that prospect arises only when awarding costs would be 'fair' in light of prescribed considerations.

1. The considerations prescribed in s88(1)(a)-(e) are:

(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.

1. Before considering the parties' submission, it is relevant to note that throughout the proceedings, from at least September 2007, Ms Hendrickson was legally represented. Counsel was briefed for Ms Hendrickson from at least February 2008.

Prolonging the proceedings

1. In its application for a costs order, the Club seems to rely on each of s88(1)(a)-(e), although its submissions conflate some of the provisions.

1. First, the Club relies on Ms Hendrickson's 'failure to comply with orders or directions of the Tribunal without reasonable excuse and repeated requests for and causing adjournments prolonging proceedings'. The submission addresses matters that engage s88(1)(a)(i)-(iv) and s88(1)(b). The Club's submissions also rely on Ms Hendrickson's having 'unreasonably prolonged the time taken to complete the proceedings', a claim which again engages s88(1)(b).

1. The Club says that Ms Hendrickson's conduct of the proceedings unnecessarily disadvantaged the Club, alleging that Ms Hendrickson failed to comply with the Tribunal's pre-trial procedures and directions, delayed in providing particulars of her case and evidence in support, failed to advise until the first day of the inquiry of her intention to not proceed against the Club's directors, and filed voluminous additional evidence on the eve of the inquiry.

1. On the question of compliance with pre-trial procedures and directions, the Club offers a detailed chronology of the pre-trial steps between 5 September 2007 and 9 March 2009, saying that Ms Hendrickson:

• failed to file Points of Claim by 7 November 2007 as directed
• filed on 31 January 2008 Points of Claim which were determined by a Tribunal judicial member to be inadequate
• failed to file amended Points of Claim by 7 March 2008 as directed
• failed to file amended Points of Claim and supporting evidence by 19 June 2008 as directed
• failed to file amended Points of Claim and supporting evidence by an agreed extended date of early July 2008
• filed on 12 August 2008 Points of Claim which did not comply with directions previously made
• filed on 3 September 2008 supporting evidence but not Points of Claim
• filed on 14 October 2008 Points of Claim which were determined by a Tribunal judicial member to be inadequate
• filed a further amended Points of Claim on 22 October 2008 as directed.

1. In her submissions on costs, Ms Hendrickson does not contest the chronology, but denies that it shows that she repeatedly failed to comply with directions. Rather, she says, her complaint went through 'a refining process' which was 'assisted by the guidance of the Tribunal'. This gloss on the chronology might be arguable had Ms Hendrickson been representing herself, but it is unsustainable in light of her having been legally represented throughout.

1. Ms Hendrickson denies that her pre-trial activity unreasonably prolonged the proceedings, but it is apparent that her repeated failure to comply with directions, including failing to file a document that set out her claim, prolonged the pre-trial preparation by some months. Ms Hendrickson's repeated failure to comply with directions is a matter that is relevant to assessing the fairness of making a costs order.

1. On 5 November 2008 the matter was listed for inquiry on 9 March 2009. On 9 January 2009 Ms Hendrickson applied to vacate the hearing dates, having giving notice of that application on 15 December 2008. On 16 January 2009 Ms Hendrickson advised she would not proceed with that application, and on 16 February 2009 she advised she would apply to vacate the hearing dates because of a two week delay in the Club's filing of affidavits. On 19 February 2009 Ms Hendrickson sought the Club's consent to vacate the hearing dates, which the Club refused. The inquiry commenced on 9 March 2009.

1. It was only on 9 March, the first day of the inquiry, that Ms Hendrickson advised of her intention to not proceed against the Club's directors. Until that point the Club had prepared its case on the basis that it was defending its own interests and those of some of its directors. That preparation was wasted, and that is a matter that is relevant to assessing the fairness of making a costs order.

1. On 6 March, the last working day before of the inquiry commenced, Ms Hendrickson filed voluminous additional documentary evidence. The very late arrival of that evidence, and the very poor state of its presentation, labelling and indexing, took up some hours of the Tribunal's time over the course of the hearing, and that is a matter that is relevant to assessing the fairness of making a costs order.

1. Ms Hendrickson says that the Club's unreasonable conduct of its own case during the inquiry contributed to the length of the inquiry. It is the case that the Club's conduct of its case contributed to length of the proceedings. The Tribunal said at [20]:

... many of Ms Hendrickson's more prominent and consistent allegations were not responded to, or were not the subject of cross-examination, and the Club's determination to positively establish very detailed allegations of Ms Hendrickson's poor work performance was at times at the expense of responding directly to her allegations. Very little of the Club's cross-examination of Ms Hendrickson was concerned with her allegations of race discrimination. By far the greater part of it, for most of two days, was concerned with her performance as General Manager, in support of the Club's case that her performance as General Manager was the only reason for the termination of her employment.

1. Further at [14] the Tribunal said:

A significant part of the Club's case was spent on establishing that Ms Hendrickson's work performance was poor, even though this was not necessary to its case. The Club need only show that it had a genuinely held belief in her poor performance, that that belief was a (or the) reason for terminating her employment, and that her race or her having complained of discrimination was not a reason. Evidence of Ms Hendrickson's actual work performance - distinct from evidence of the Club's belief in her poor performance - is relevant only to the extent that it supports the Club's claim that its belief was genuinely held.

1. To an extent this counters the degree to which blame falls on Ms Hendrickson for prolonging the length of the inquiry, and that is a matter that is relevant to assessing the fairness of making a costs order.

1. Related to this consideration is the fact that Ms Hendrickson's complaint of race discrimination was in fact argued very lightly. Very little of her extensive evidence was directed to facts in issue in that complaint. Instead, it was substantially directed towards explaining and justifying her own conduct and work performance. The Tribunal said at [157]-[158]:

157 It was submitted for Ms Hendrickson that 'The Tribunal would find that race was a factor in the termination'. But the submissions make no argument for such a finding, and canvas no evidence that would support such a finding. Rather, the submissions reflect the direction of Ms Hendrickson's evidence, which was to allege that the termination was because she had complained of discrimination. The submissions refer (albeit under a heading 'Discrimination') to 'termination following the complaint of racial discrimination', and to 'the Board [knowing] about the letter'. While cross-examination of the Club's directors did not suggest to them that Ms Hendrickson's race was a reason for termination of her employment, it did pursue the question of whether they had prior knowledge of her having lodged a discrimination complaint.

158 Ms Hendrickson's claim that race was a reason for her dismissal was not put strongly, and was scarcely supported by the evidence. In light of the notorious difficulty of proving race discrimination it could have been argued that there was evidence available which supports an inference that race was a reason for her dismissal, but that was not argued on her behalf. We have looked at the available evidence from that perspective ourselves and cannot see sufficient evidence on the basis of which such an argument could reasonably be made.

1. This is a measure of how misdirected much of Ms Hendrickson's evidence was. She was undoubtedly distracted by the Club's attack on her performance which, as noted above, was to an extent irrelevant to the proceedings. But the time taken to rebut irrelevant evidence, at the expense of giving evidence on the fact in issue, is a matter that is relevant to assessing the fairness of making a costs order, particularly in light of her having been legally represented.

Attempt to deceive

1. As well as relying on Ms Hendrickson's conduct which prolonged the proceedings, the Club says that Ms Hendrickson attempted to deceive the Club and the Tribunal (s88(1)(b)(v)) by making unfounded excuses for the unavailability of a witness, Mr Macdonald. That is an assertion by the Club on which the Tribunal has not made and cannot now make a finding, and is not relevant for purposes of s88(1).

Not tenable in fact or law

1. Further, the Club says that Ms Hendrickson's complaints had no tenable basis in fact or law (s88(1)(c)). It points to the Tribunal's findings that some of Ms Hendrickson's allegations concerned conduct by people who were not in a relationship with Ms Hendrickson covered by the Anti-Discrimination Act , nor engaged in activity covered by the Anti-Discrimination Act , and that some of Ms Hendrickson's allegations concerned conduct the nature of which is not covered by the Anti-Discrimination Act .

1. In reply, the Club says that merely to have failed does not point to a claim's having had no tenable basis. That is true, when a complaint merely fails, for example when an allegation cannot be substantiated for want of proof. In this case, some of Ms Hendrickson's allegations 'suffered from fundamental defects of which [she] should have been fully aware by the time when the hearing commenced' ( Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198, [42]. She should have been fully aware because she was legally represented throughout.

1. In the year and half from the first case conference to the hearing date, it ought to have been apparent to Ms Hendrickson's legal representatives, and so to her, first that complaints against individuals were bound to fail if the individuals were not in a relationship with Ms Hendrickson covered by the Anti-Discrimination Act , or had not engaged in activity covered by the Anti-Discrimination Act , and secondly that complaints were bound to fail when they concerned conduct the nature of which is not covered by the Anti-Discrimination Act . Ms Hendrickson's maintenance of allegations that were bound to fail, despite her being legally represented, is a matter that is relevant to assessing the fairness of making a costs order.

Vexatious

1. Further, the Club says that Ms Hendrickson's conduct of the proceedings was vexatious (s88(1)(b)(vi)). The Club relies on Ms Hendrickson's: having made complaints about the Club to other agencies, having threatened a Club director with a defamation claim, not having produced documents the Club says she was able to produce, and having engaged in conduct in her employment with the Club from which she wanted to distract attention.

1. As Ms Hendrickson submits, these allegations have not been the subject of evidence and inquiry. They were intimated by the Club at times during the hearing, but the Tribunal did not (and was not asked to) make findings on them. As Ms Hendrickson notes in her submissions, the Tribunal found that Ms Hendrickson did perceive that she was working in a racially hostile work environment. That fact is certainly available to counter an allegation that her conduct of the proceedings was vexatious.

1. The Club relies only on assumptions and inferences as to Ms Hendrickson's motives in conducting the proceedings. They cannot properly inform the Tribunal's consideration of whether it is fair to make a costs order, and are not relevant for purposes of s88(1).

Other matters of relevance

1. The Club relies on other matters (s88(1)(e)). It says that Ms Hendrickson's general conduct of the proceedings was such as to warrant a costs order. The Tribunal commented adversely on the manner in which Ms Hendrickson gave evidence, saying at [14] -[16]:

14 ...Ms Henderson volunteered very little to elaborate on the allegations in her complaint and affidavit. Many of those allegations are in general terms, without detail as to time, place and, sometimes, even the identity of people involved. In answers to questions asked by the Tribunal Ms Hendrickson provided some elaboration.

[15] ... we have had considerable difficulty assessing Ms Hendrickson's evidence. In giving oral evidence Ms Hendrickson responded to questions in many different ways, and not always directly. For example, at different times she asked for clarification of the question, she answered the question with a question, she interrupted the question, she offered lengthy answers that went beyond answering the question, and she queried the status of the document to which the question related and referred to other documents that were unspecified or unavailable or differently numbered ... Much of the evidence she gave was not relevant to facts in issue, although it was intertwined with evidence that was ...

[16] ... Ms Hendrickson was prone to exaggeration when giving her evidence ... Evidence such as this has given us reason to hesitate in accepting Ms Hendrickson's evidence generally, and in particular when there is evidence to the contrary.

1. Ms Hendrickson points out that the Tribunal also criticised Mr Longbottom's evidence:

21. Mr Keith Longbottom's evidence was unsatisfactory ... Mr Longbottom's evidence was characterised by near complete denial of everything alleged by Ms Hendrickson, and a persistently stated inability to recall events. Mr Longbottom's denials and failure of memory were at times implausible ... No explanation was offered to explain the improbably high rate at which his memory failed him.

1. But it cannot be said, as Ms Hendrickson does, that the nature of her evidence as a witness 'ought to no more relate to costs than that of Mr Longbottom'. Ms Hendrickson's evidence was almost the whole of the evidence in her case, and the difficulties with it, and the effect of those difficulties on the length and the direction of the inquiry, were considerably greater than any posed by Mr Longbottom's evidence. The manner in which Ms Hendrickson gave evidence is a matter that is relevant to assessing the fairness of making a costs order.

1. The Club relies on the fact that on 19 February 2009, when refusing to consent to Ms Hendrickson's application to vacate the hearing dates, it advised Ms Hendrickson that it would not seek costs if she wholly discontinued the proceedings at that time. Ms Hendrickson did not reply to this offer. The Club had twice previously invited Ms Hendrickson to discontinue, although on both occasions the Club sought its costs. In light of the complete failure of Ms Hendrickson's complaints, including allegations that were, of their nature, bound to fail, the Club's offer, as late as three weeks before the hearing, to accept Ms Hendrickson's discontinuance without the payment of costs, is a matter that is relevant to assessing the fairness of making a costs order.

Other matters of no relevance

1. The Club relies on further other matters (s88(1)(e)). It says that Ms Hendrickson's conduct as an employee placed the Club in a perilous financial situation. That is an assertion by the Club on which the Tribunal has not made and cannot now make a finding, and is not relevant for purposes of s88(1).

1. The Club says that the costs of the proceedings have added to the Club's perilous financial situation. That may be, but the Club has offered no evidence to support this assertion, and the assertion is not relevant for purposes of s88(1).

1. The Club says that 'in the mind of lay people' the proceedings were an attempt by Ms Hendrickson to brand the Club and the individuals involved as racists. This again is an assumption by the Club as to Ms Hendrickson's motives, and is not relevant for purposes of s88(1). It may be that in this submission the Club meant to rely not on a claim that Ms Hendrickson attempted to brand the Club and the individuals involved as racists, but on a claim that the effect of Ms Hendrickson's failed discrimination claim was to brand the Club and the individuals involved as racists in the mind of lay people. If this was the intended submission there is no evidence in support of it. There is evidence, from some of the witnesses, that they were distressed by what they felt were offensive allegations of racist behaviour on their part, but that is, unfortunately, an ordinary incident of a discrimination complaint and, unless the proceedings were vexatious or otherwise pursued for an improper purpose, it is not relevant for purposes of s88(1).

1. The Club says that Ms Hendrickson's principal witness, Mr Macdonald, behaved in a way that could be dealt with as contempt. The Tribunal did not deal with Mr Macdonald in that way. Mr Macdonald's abrupt departure shortened the proceedings by some amount of time, and was of no assistance to Ms Hendrickson's case. It is not relevant for purposes of s88(1).

1. The Club asserts that documents relied on by Ms Hendrickson were 'of questionable authenticity' and that Ms Hendrickson's possession of certain Club documents was of 'great concern' and placed the Club 'at an unfair disadvantage'. The only part of this argument that could be relevant for purposes of s88(1) is the claim that the Club was placed at an unfair disadvantage, but there is no evidence that that was the case.

Order

1. Having regard to the matters canvassed above, it is fair to make a partial award of costs in favour of the Club. We order that Ms Hendrickson is to pay three quarters (75%) of the Club's costs of these proceedings incurred on and after 8 November 2007, as agreed or assessed.

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Decision last updated: 30 August 2011