Hingston v Lynch

[2010] NSWADTAP 1

Appeal Panel - Internal

CITATION:	Hingston v Lynch (EOD) [2010] NSWADTAP 1
PARTIES:	Appellant: Alan John Hingston as Trustee for the AP Family Trust t/as Grafton Sawmilling Respondent: Michael Lynch
FILE NUMBER:	099036
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	9 December 2009
DATE OF DECISION:	7 January 2010
BEFORE:	Chesterman M - Deputy President; Smyth M - Judicial Member; Hayes E - Non-Judicial Member
CATCHWORDS:	Costs - Administrative Decisions Tribunal Act 1997, section 88
DECISION UNDER APPEAL:	Lynch v Alan Hingston as Trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 102
FILE NUMBER UNDER APPEAL:	081119
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Lynch v Alan Hingston as Trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 102
REPRESENTATION:	Appellant Representative: C Smith, barrister Respondent Representative: No appearance
ORDERS:	The Appellant is pay the Respondent’s costs of this appeal, as agreed or as assessed under the Legal Profession Act 2004

REASONS FOR DECISION

Introduction

1 This decision relates to an application for the costs incurred by the Respondent to this appeal, Mr Michael Lynch, in successfully defending an appeal instituted by the Appellant, Mr Alan Hingston. In these proceedings, Mr Hingston acts in the capacity of Trustee for the AP Family Trust, trading as Grafton Sawmill.

2 In the decision under appeal (Lynch v Alan Hingston as Trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 102), the Tribunal held that Mr Hingston, in dismissing Mr Lynch from employment at Grafton Sawmill, had unlawfully discriminated against him on the ground of disability. The Tribunal awarded damages amounting to $26,272.74 to Mr Lynch under the Anti-Discrimination Act 1977. This award comprised $16,272.24 for lost wages and $10,000 for the distress and embarrassment caused by his dismissal.

3 On 6 October 2009, we heard Mr Hingston’s appeal. Both Mr Hingston, representing himself, and Ms Smith, counsel for Mr Lynch, appeared by telephone. On the same day, we gave an ex tempore judgment dismissing the appeal.

Procedural aspects of this application for costs

4 Following the dismissal of Mr Hingston’s appeal on 6 October 2009, Ms Smith indicated that Mr Lynch sought an order for costs. We directed that any such application by him should be filed and served within 14 days, that any opposing submissions by Mr Hingston should be filed and served within a further 14 days and that our decision on costs would be made ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

5 Also on 6 October 2009, the Registry sent to both parties a Notice of Decision stating the outcome of the appeal and summarising these directions regarding costs.

6 On 12 October 2009, Mr Hingston faxed to the Registry a request under section 89 of the ADT Act for written reasons for our decision. These reasons were sent to both parties on 11 November 2009.

7 On 15 October 2009, the Registry received from Somerville Laundry Lomax, the solicitors for Mr Lynch, written submissions, prepared by Ms Smith, in support of his application for the costs of the appeal. Somerville Laundry Lomax did not, however, serve a copy of these submissions on Mr Hingston until a date on or about 25 November 2009. Their covering letter requested that Mr Hingston should ‘confirm with the Tribunal the amount of time you have to respond to these submissions’.

8 In a letter to the President of the Tribunal dated 6 November 2009, Mr Hingston referred in passing to our direction on 6 October that Mr Lynch should file and serve submissions on costs within 14 days. He indicated in that letter that he had not yet received any such submissions. But despite the suggestion by Somerville Laundry Lomax in their letter of 25 November that he should seek from the Tribunal an indication as to the time within which he should file submissions in response to those of Mr Lynch, he has not made any request of this nature and he has not filed any submissions.

9 In these circumstances, we consider that we may properly determine Mr Lynch’s application for the costs of the appeal even though no opposing submissions have been received from Mr Hingston.

10 Our reasons for arriving at this conclusion are as follows. Both at the hearing on 6 October 2009 and in the Notice of Decision sent out by the Registry later that day, the procedure that we laid down for receiving submissions on costs was communicated to Mr Hingston. His letter of 12 November to the President provided confirmation that he was aware of this procedure. The letter sent to him on 25 November by Somerville Laundry Lomax reminded him of his right to respond. We are satisfied that he was sufficiently put on notice that if he wished to respond to Mr Lynch’s submissions he should do so within the period that we had stipulated (i.e. 14 days following receipt of those submissions). That period elapsed on or shortly after 9 December 2009.

The grounds of the application

11 Mr Lynch’s application for costs was made under section 88 of the ADT Act. The provisions of this section on which Ms Smith relied in her supporting submissions are as follows:-

(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:…

(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…

12 In his appeal, Mr Hingston argued that the amount of damages that the Tribunal had awarded to Mr Lynch was excessive for two reasons. Both of them related to the award of $16,272.24 for lost wages.

13 In our ex tempore judgment dismissing the appeal, we summarised the first argument advanced by Mr Hingston and our reasons for rejecting it in the following passage:-

Mr Lynch was dismissed by Mr Hingston on 24 January 2008… Mr Lynch was unable to obtain employment until 7 February 2008, but he did so with a company engaged also in the timber industry, Rocla, for a fixed period commencing on 7 February 2008. This fixed period came to an end on 2 September 2008 and Mr Lynch ceased on that date to work for Rocla.

The major component of the damages awarded against Mr Hingston represented the amount of Mr Lynch’s lost wages from the date of his leaving employment of Rocla (2 September 2008) up to the date of the hearing by the Tribunal, which took place on 26 and 27 March 2009. In the hearing of the appeal before us this morning, Mr Hingston argued that his liability for lost wages should have been extinguished once Mr Lynch started his work for Rocla. Mr Hingston put to us that he felt he should not be penalised for the fact that Mr Lynch’s employment with Rocla came to an end at the time when it did. Mr Hingston also argued that the Tribunal, in its judgement, had assumed that if Mr Lynch had not been dismissed in January 2008 he would have continued to work, to be employed by Mr Hingston, without interruption at least until the date of the hearing.

Having given careful consideration to these arguments and heard the submissions by Ms Smith, counsel for Mr Lynch, we have concluded that these arguments put by Mr Hingston do not identify any error of law by the Tribunal, either in its understanding of the law governing mitigation of damages or in its application of the legal principles. The Tribunal, we think, considered the correct question, which was whether Mr Lynch had acted reasonably in trying to mitigate, to reduce, his economic loss following his dismissal. The Tribunal also stated correctly, at paragraph 69 in its judgement, that the burden of proof lay on Mr Hingston, the Respondent in the original proceedings, to establish that Mr Lynch had not acted reasonably in this regard. The Tribunal also pointed out at paragraph 71 that Mr Hingston did not bring forward any evidence to show that there were jobs available in the locality for which Mr Lynch was qualified but did not apply.

Mr Hingston’s argument in the appeal that he should not be penalised simply because Mr Lynch had to leave Rocla in September 2008 did not, in our opinion, take sufficient account of the fact that the job he obtained at Rocla was only a fixed term job. In the light of the principles placing the onus on Mr Hingston in these matters, we have to say that if Mr Hingston wanted to claim that Mr Lynch should have obtained longer-term employment the onus was on him to establish this. The Tribunal, as we have said, specifically found that no such evidence was put forward.

Mr Hingston’s further argument to us – that employment in the timber industry in this locality has been uncertain during the period that is relevant to this case – does not in our opinion assist him unless he can show a probability that Mr Lynch himself would not have been retained in Mr Hingston’s employment until the time of hearing but for the dismissal. This was in fact a matter that the Tribunal specifically addressed in its judgement at paragraph 72. Its comments show that Mr Hingston had failed to prove that this was in fact the case. It said at page 72 of the judgement that ‘but for the discriminatory act of dismissing’ Mr Lynch, Mr Lynch would have been ‘likely to have continued in this employment with the respondent’.

14 We summarised Mr Hingston’s second argument and our reasons for rejecting it as follows:-

The second ground of appeal argued by Mr Hingston today was to this effect: that he was penalised also because a delay in fixing the hearing of the matter before the Tribunal had occurred on account of a failure by Mr Lynch’s representatives at the time to attend a case conference by telephone on 11 December 2008. This case conference had for this reason to be rescheduled for 14 January 2009. Mr Hingston also referred, in addressing us today, to delays that he claimed to have been caused by the Registry of the Tribunal being unable around about the end of January 2009 to make contact with Mr Lynch’s new representatives.

Ms Smith argued in reply that these matters could not be taken into account by the Appeal Panel because they had not been raised before the Tribunal at the hearing and that it followed therefore that the Tribunal did not make any error of law in failing to deal with these matters. In our opinion, this is indeed an obstacle to Mr Hingston bringing these matters before us today. We will add also, having examined the file on the matter, that a letter written by Mr Lynch’s representatives during 2008 to the Tribunal did contain an explanation for their failing to attend the case conference. That explanation was to the effect that they missed the [telephone] call for it and assumed that it was not proceeding. This letter was sent to the Tribunal, as I have said, very shortly after the missed conference.

The file also shows that the hearing date in March for this case was fixed by the Tribunal on 6 February 2009 and communicated by letter to the parties. It is difficult to see in the light of this how any delay possibly occasioned by the Tribunal in making contact with the new legal representatives late in January would have had any tangible effect on the hearing date itself. We add therefore that in light of this examination of the file we are not satisfied that the Tribunal, if it had had this material before it, would have made any different award following the hearing in March.

We would note also that the delay caused by the failure of the representatives to attend the first conference was a relatively short one and indeed that the time in these proceedings between the referral of the matter to the Tribunal by the Anti-Discrimination Board and the actual hearing was a relatively short one. The Board referred this case to the Tribunal on 4 November 2008 and the hearing took place on 26 and 27 March 2009, some five months later. This is a relatively short period of time for a hearing to come to fruition and it does therefore add support to our conclusion on this matter, which is that the alleged delays do not warrant any changing of the award made by the Tribunal.

15 In her submissions relating to the costs of the appeal, Ms Smith contended that these two arguments raised by Mr Hingston did not constitute a reasonably arguable case and that the appeal therefore fell within subparagraph (c) of section 88(1A) of the ADT Act. Mr Hingston, she maintained, had put forward a claim that had ‘no tenable basis in fact or law’. On this ground, she contended that we should conclude that it was ‘fair’ to order Mr Hingston to pay Mr Lynch’s costs of the appeal, including the costs of preparing her submissions regarding costs.

Our decision

16 We agree with Ms Smith’s contentions. The arguments that Mr Hingston put forward in representing himself at the appeal were undoubtedly based on what he considered to be legitimate considerations of fairness and justice. But they showed that he misunderstood both the relevant principles relating to assessment of damages and the basis on which appeals are conducted under the ADT Act. Overall they were very weak arguments.

17 We accordingly conclude that it is fair to order that Mr Hingston, the unsuccessful appellant, should pay the costs incurred by Mr Lynch in defending this appeal, and we so order.