JA v State of NSW, NSW Police (No.3)

[2004] NSWADT 228

CITATION:	JA v State of NSW, NSW Police (No.3) [2004] NSWADT 228
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT JA RESPONDENT State of NSW, NSW Police
FILE NUMBER:	021075
HEARING DATES:	24/08/2004
SUBMISSIONS CLOSED:	09/22/2004
DATE OF DECISION:	10/08/2004
BEFORE:	Hennessy N - Magistrate (Deputy President); Mooney L - Non Judicial Member; McDonald O - Non Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Supreme Court Act 1970 Supreme Court Rules 1970
CASES CITED:	Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25; Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60; (Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
REPRESENTATION:	APPLICANT In person RESPONDENT H Bell, solicitor
ORDERS:	The respondent’s application for costs is dismissed.

1 JA was dissatisfied with the investigations police officers made in relation to certain matters including an allegation that he had been assaulted. He said that members of NSW Police had discriminated against him because they thought he had a mental illness. On 24 August 2004, the Tribunal dismissed his complaint on the ground that it was lacking in substance. In the Notice of Decision sent to JA, the Tribunal told him that NSW Police had 14 days to apply for costs. He was also told that he had a further 14 days to respond. NSW Police applied for costs on 31 August and sent a copy of that application to JA. The Tribunal has not received a response from JA.

2 Where the Tribunal dismisses a complaint as lacking in substance “it may order the complainant to pay the costs of the inquiry.” (Anti-Discrimination Act 1977 s 111(2)) This provision gives the Tribunal a broad discretion in relation to costs. There is no presumption that costs should be awarded to the successful party, (compare Supreme Court Rules 1970, Rule 52.11) or that each party will pay their own costs (compare Anti-Discrimination Act 1977 s 114(1)).

3 The Tribunal’s discretion to award costs is unconfined. Consequently the factors that the Tribunal may take into account when exercising the discretion are also unconfined. There is no implied limitation on the factors to which the Tribunal may have regard. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25 per Mason J at 39.)

4 The only argument put forward by NSW Police in support of its application for costs was that the President of the Anti-Discrimination Board had declined JA’s complaint on similar grounds to those on which the Tribunal ultimately dismissed it. In a previous decision the Tribunal said that the awarding of costs against an applicant whose complaint had been declined by the President of the ADB and dismissed by the Tribunal under s 111, should be regarded as a “rule of practice” to be departed from only where there are “truly exceptional circumstances.” (Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60 at [56]).

5 That proposition has not been fully embraced by the Appeal Panel. The Appeal Panel has observed 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, 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) (EOD) [2002] NSWADTAP 25 at [42].) Impliedly, where the complaint is dismissed as lacking in substance, as it was in this case, the arguments for a full costs order is not as compelling.

6 When deciding whether or not to award costs, both the fact that President has declined the complaint and the motivation and conduct of the complainant are relevant. On 30 September 2004, the Supreme Court declared JA to be a vexatious litigant and made orders preventing him from instituting or continuing legal proceedings in New South Wales. A vexatious litigant is someone who “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings” (Supreme Court Act 1970 s 84). Although we have found JA’s complaint to be lacking in substance, we have not found that the complaint was vexatious. We have no doubt that JA was personally convinced of the merits of his case. He made the complaint honestly believing that officers of NSW Police had discriminated against him and although that complaint was ultimately found to be lacking in substance, we do not think that a costs order is justified.

Order

7 The respondent’s application for costs is dismissed.