Johnson v Free Spirit Management Pty Ltd (No 3)

[2011] NSWADT 147

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Johnson v Free Spirit Management Pty Ltd (No 3) [2011] NSWADT 147
Hearing dates:	On the papers
Decision date:	16 June 2011
Jurisdiction:	Equal Opportunity Division
Before:	E Grotte, Judicial Member E Hayes, Non Judicial Member N Hiffernen, Non Judicial Member
Decision:	The application for costs is dismissed
Catchwords:	Costs; Practice Note Number 22
Legislation Cited:	Administrative Decisions Tribunal Act, 1997 Anti-Discrimination Act, 1977
Cases Cited:	Rae v Commissioner of Police, New South Wales Police Force (2011) NSWADTAP 30; Haas v Hosking (No.2) (2010) NSWADT 2003
Category:	Costs
Parties:	Ryan Johnson (Applicant) Free Spirit Management Pty Ltd (First Respondent) NRMA Tourist Park No. 3 Pty Ltd (Second Respondent)
Representation:	Counsel: S Williams (Respondent) A Johnson (Applicant - agent) Quinlan Miller & Treston Lawyers (Respondent)
File Number(s):	081097

REasons for decision

1. On 15 February 2011 the Tribunal determined that two complaints made by Ryan Johnson against the respondents were substantiated. The complaints concerned age discrimination in the provision of goods and services, and victimisation.

1. On 4 March 2011 written submissions were received from Mr Johnson claiming costs of the proceedings. The submissions were as follows:

(a) Mr Johnson's father, Anthony Johnson, who acted as his agent in the proceedings, and other family members should be paid reasonable costs which they incurred in the conduct of the proceedings.

(b) Both he and his father suffered economic loss as a result of being required to conduct the proceedings, which were ultimately successful.

(c) The question of costs was raised at the hearing, during the course of discussing the extensive delays and the unreasonable amount of time it had taken to conclude the matter.

(d) The respondents deliberately misled the Tribunal by changing the park log books in order to implicate Ryan Johnson in anti-social behaviour.

(e) Under cross examination, Mr Fordyce, the park manager, stated that Mr Johnson was in a large group of teenagers. After further questioning he conceded that the group consisted of three people. This is not a large group. Mr Fordyce also stated in his statements that Mr Johnson was not forced to stay in his caravan after 9pm, which was proved to be incorrect, misleading and fraudulent evidence. It was submitted that a curfew was imposed on Mr Johnson because he looked like a teenager.

(f) On two occasions Mr Johnson and his witnesses attended conferences at the Tribunal only to be informed that the respondents were not attending, because they were occupied with other unrelated legal matters, without notifying him or his father. Mr Johnson claims that this was deliberate and that it caused considerable anguish and cost him and his father time and money.

(g) The Tribunal proceedings are supposed to be informal and accessible to lay people, the proceedings became difficult because neither he nor his father had any legal experience.

1. Mr Johnson attached a statement of costs incurred in the conduct of the proceedings. He claims in total $12,159.00, made up as follows:

• Ryan Johnson - 20 days of lost wages at $112.20 per day - $2,244.00;
• Car park fees - 8 days at $80.00 per day - $640.00;
• Transport and fuel costs - $200.00;
• Parents' lost wages - Darleen Johnson - 20 days at $150.00 per day and Anthony Johnson - 20 days at $120.00 per day - Total being $5,400.00;
• Holiday payment to Ocean Beach Caravan Park - $3,375.00; and
• Stationery, mailing, secretarial, ink, computer - $300.00.

1. Mr Johnson attached the following documents to his submissions:

(a)   Copy of extract from the Ocean Beach Holiday Park diary for January 2008;

(b)   Copy of handwritten note re complaint from room number 073 regarding noise coming from ENS 16;

(c)   Copy of undated extract from Ocean Beach Holiday Park diary;

(d)   Copy of letter from Ocean Beach Holiday Park to Mrs Darleen Johnson dated 1 February 2008; and

(e)   Copy of extract from the Ocean Beach Holiday Park diary for 29 September 2007.

1. On 1 April 2011 the following written submissions were made on behalf of the respondents:

(a) Section 110 of the Anti-Discrimination Act 1977 (NSW) (the AD Act) empowers the Tribunal to award costs under section 88 of the Administrative Decisions Tribunal Act 1997 (NSW) (the Act) in respect of proceedings before the Tribunal in relation to a complaint.

(b) The general presumption in the conduct of the proceedings is that each party is to bear that party's own costs - see section 88(1) of the Act and the Tribunal's Practice Note No. 22.

(c) Section 88 (1A) of the Act permits the Tribunal to award costs in relation to a proceeding only if it is satisfied that it is fair to do so having regard to those matters specified therein.

(d) "Costs" are defined as the professional fees charged to a party by that party's legal representatives or by a professional representative, who is not a lawyer. It includes reasonable expenses actually paid in connection with the proceedings.

(e) The entitlement of a self-represented litigant to recover costs was determined, consistent with the definition of "costs" in the Practice Note under reference, by the High Court in Cachia -v- Haynes & Anor (1993-1994) 179 CLR 403.

(f) It was determined by the majority (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) that the costs for which (in that case Rule 23(2) of the Supreme Court Act 1970 (NSW) provided were confined to money paid or liability incurred for professional legal services and did not include compensation for time spent by a litigant who was not a lawyer in preparing the conduct of his case: see also Averno & Anor -v- Mbuzi & Anor (2005) QSC 6 per Muir J (as His Honour then was).

(g) The applicant's claim for economic loss must fail because it was expressly found by the Tribunal in its reasons that the applicant had agreed during the hearing that there was "no evidence of economic loss. He agreed that these claims ought to be withdrawn...".

(h) The applicant has not challenged that finding and the alleged "economic loss" was not proved at the hearing and no order should be made that the respondent is liable for same.

(i) The applicant's claims for lost wages, carpark fees, transport and fuel costs and the loss of his parents' wages are not recoverable as a matter of law. The applicant's father was not proved to be and is not a professional representative.

(m) Similarly, the holiday payment does not fall within the definition of "costs" and was not a reasonable expense "actually paid in connection with the proceedings".

(o) The claim for "stationery, mailing, secretarial, ink, computer" was not proved at the hearing and is therefore not recoverable by the applicant.

(p) The submissions do not provide any basis to justify the general presumption being displaced.

(q) The submission that the respondents had deliberately misled the Tribunal is scandalous. There was no finding by the Tribunal to that effect and that submission is without merit and prejudicial.

(r) There is no basis upon which it could be said that the respondent's actions were deliberate or designed to cause the applicant anguish.

(s) There is no evidence that the respondent conducted the proceedings in a way that was unnecessarily disadvantageous to the applicant, or that the respondent was responsible for prolonging unreasonably the time taken to complete the proceedings, or that the proceedings were in fact prolonged. The applicant's claim for damages was in the sum of $105,000. He was awarded $7,500. The proceedings were not complex and only concerned a factual dispute.

DISCUSSION AND DECISION

1. Section 110 of the AD Act empowers the Tribunal to award costs under section 88 of the Act in relation to proceedings brought under the AD Act.

1. The primary rule is that each party to proceedings in the Tribunal bears its own costs. There is an exception permitting an award of costs to be made, but 'only if the Tribunal is satisfied that it is fair to do so'. Section 88 provides relevantly:

(1)   (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.

1. His Honour, Judge K P O'Connor, the President of the Administrative Decisions Tribunal, stated recently in the Appeal Panel decision of Rae -v- Commissioner of Police, New South Wales Police Force (2011) NSWADTAP 30 ( Rae ) that "the exception is not lightly to be applied", when reinforcing the primary rule in respect of making a costs order against an unsuccessful litigant. The rationale expressed by His Honour was that the making of costs orders "may discourage people from airing their grievances."

1. Rae concerned an appeal against a costs order made against a complainant at first instance. For the reasons mentioned by the President, the Tribunal was and is reluctant to make an order against a complainant for public interest reasons.

1. In the present case the applicant established that he had been subjected to age discrimination and victimisation. As the successful litigant he has now applied for a costs order to be made in his favour against the respondent.

1. In determining whether to make an order that the respondents be required to pay Mr Johnson's costs as claimed, the Tribunal has had regard to the matters set out in section 88 of the Act and the Costs Guideline of the Tribunal's Practice Note Number 22 (Costs Guideline).

1. Practice Note 22 states the following in respect of a self-represented party:

"6. Self Represented Party

The Tribunal has ruled that a self represented party cannot apply for costs for loss of income or general inconvenience that the party has incurred in bringing or defending a case.

However, a self represented party may apply for an order that covers their reasonable out of pocket expenses ('disbursements') such as photocopying and travel expenses."

1. The Tribunal's Practice Note reflects the authorities and the accepted basis that an award for costs is made by way of indemnity for professional legal fees incurred in the conduct of litigation. The majority (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) in the High Court case of Cachia -v- Hanes (1994) 179 CLR 403 ( Cachia ) considered the question of whether costs should be awarded to a self-represented litigant who was successful in his action. The litigant was a professional engineer and claimed for loss of time as well as out of pocket expenses, being travelling expenses, associated with the preparation and conduct of his case. Their Honours stated:

"They are intended to reimburse a litigant for costs actually incurred; they are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant.

1. The rationale for this principle is that litigation involving a self-represented litigant is usually less efficiently conducted and tends to be prolonged and the costs for the opposing litigant are therefore necessarily increased. It would be unreasonable to then require the opposing litigant to pay for costs incurred unless they are professional legal fees. This principle must of course be weighed against the fact that the inability to gain recompense for time spent in the conduct of successful litigation could be a significant deterrent to initiating legal proceedings ( Cachia ). Section 88 of the Act codifies the factors to be taken into account in balancing these interests.

1. In the present circumstances, Mr Johnson was represented by his father, as his agent, at the hearing. Mr Anthony Johnson is not legally qualified and was not acting in a professional capacity. Mr Johnson therefore is unable to recover lost wages, either for himself or his parents. In respect of the claims for car park fees, stationery, mailing, secretarial, ink and computer costs, the Tribunal has considered whether it is fair to make an order that the respondent pay these costs, having regard to the matters set out in section 88 of the Act and the Costs Guideline.

1. Mr Johnson alleged that the respondents caused unnecessary and extensive delays in the conduct of the proceedings. The Tribunal has reviewed the conduct of the proceedings and although the complaint extended over a two and half year period, this was in part due to the fact that the respondents had made an application pursuant to section 102 of the Act to dismiss the complaint. The application had to be heard and decided upon. A differently constituted Tribunal decided that the complaints were not misconceived nor were they lacking in substance so the application to dismiss was unsuccessful. The complaints proceeded to determination.

1. The respondents are entitled to make any lawful application pursuant to the legislation and require the applicant to prove his or her complaint. The process naturally takes time. The Tribunal is not persuaded that any delays in the finalisation of the proceedings were caused by the unreasonable conduct of the respondents. Directions made in respect of the conduct of the proceedings were not ignored and were largely adhered to. The respondents did not file copious material, but relied on clear statements of evidence. Much of the material relied upon had been provided early in the proceedings. The hearing was concluded in one day and the respondents and applicant provided written submissions following the hearing in accordance with the timetable set by the Tribunal. Written submissions were requested by the Tribunal to enable the applicants to carefully consider all of the evidence, both written and oral, and put their case to the Tribunal.

1. Mr Johnson claimed that the respondents deliberately misled the Tribunal by changing log books in order to implicate Ryan Johnson in anti-social behaviour. The Tribunal did not make any such finding. The respondents are entitled to dispute a complaint and require an applicant to prove his or her case to the requisite standard of proof. There was a factual dispute and a dispute that the respondents' conduct amounted to a contravention of the legislation. In the final analysis, the complaints were substantiated, but the Tribunal is not satisfied that there is any basis to justify a departure from the general rule that each party bears its own costs. The fact that the complaints were substantiated is not determinative on the question of costs. The question is whether it is fair to require the respondents to pay costs having regard to factors set out in section 88 of the AD Act. The Tribunal is not satisfied in all of the circumstances that it is fair to require the respondents to pay the applicant's "car park fees, stationery, mailing, secretarial, ink and computer costs".

1. The application for costs is dismissed.

Decision last updated: 16 June 2011