Jones and Anor v Ekermawi (No. 2) (Costs) (EOD)

[2013] NSWADTAP 18

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Jones and Anor v Ekermawi (No. 2) (Costs) (EOD) [2013] NSWADTAP 18
Hearing dates:	On the papers
Decision date:	23 April 2013
Before:	Judge K P O'Connor, President R J Wright SC, Judicial Member J Newman, Non-judicial Member
Decision:	That the appellants' pay the respondent's costs of the appeal, as agreed or assessed, confined to the following: three-quarters of the costs of preparation of the submissions in reply to the appeal and of the costs of appearance of counsel at the appeal hearing; and all of the costs of the present submissions.
Catchwords:	COSTS - Respondent's application for costs of unsuccessful appeal - Ordinary rule is that no costs be awarded - Exception 'if it is fair to do so' - Approach to discretion at appeal level of Tribunal - Consideration - Application granted as to most costs incurred. Administrative Decisions Tribunal Act 1997, s 88
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Legal Aid Commission Act 1979
Cases Cited:	AT v Commissioner of Police, NSW [2010] NSWCA 131 Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50
Category:	Costs
Parties:	Alan Jones (First Appellant) Harbour Radio Pty Ltd t/a 2GB (Second Appellant) Sam Ekermawi (Respondent)
Representation:	Counsel K L Eastman SC (First and Second Appellants) C J Birch SC and P Batley (Respondent) Baker & McKenzie (First and Second Appellants) Legal Aid Commission (Respondent)
File Number(s):	119061
Decision under appeal	Jurisdiction: 9108 Citation: Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280 Date of Decision: 2011-11-29 00:00:00 Before: Equal Opportunity Division File Number(s): 101021

reasons for decision

1. This decision deals with a costs application from the respondent for the respondent's costs of the appeal, consequent on dismissal of the appellants' appeal against an interlocutory ruling of the Equal Opportunity Division of the Tribunal.

1. The respondent has complained that the appellants engaged in conduct that constituted racial vilification in breach of the Anti-Discrimination Act 1977 (the ADA). A detailed account of the allegations, and the history of the complaint as it has so far progressed before the Tribunal is given in our earlier decision - see Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50 (30 November 2012).

1. The parties agreed to the respondent's costs application being dealt with on the basis of written submissions and without a hearing (as permitted by s 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act)).

1. The ADA provides that the Tribunal may award costs under s 88 of the ADT Act in respect of proceedings before the Tribunal in relation to a complaint. The primary rule is that each party to proceedings is to bear their own costs: ADT Act, s 88(1). However this is subject to an exception, and so it is open to a party to apply for costs. Section 88(1A) provides relevantly:

(1A) ... 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. It will be seen that that provision lists nine specific considerations, while the tenth is a catch-all - 'any other matter that the Tribunal considers relevant'.

1. Seven of the specific considerations focus on procedural misconduct by an opposite party (see para (a), and para (b)). The remaining two address primarily the substance and strength of the cases presented (paras (c) and (d)).

1. The neutral costs rule of the Tribunal serves the goal of access that has underpinned the creation of tribunals of the present kind. Section 3 provides relevantly:

The objects of this Act are as follows: ...

(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner, ...

1. Therefore the Tribunal should, and we believe does, exercise great circumspection around making first instance costs orders. The appeal facility does not stand in the same relationship to the goal of access. The successful party at first instance has a greater claim, as we see it, to protection from a second round of costs, in particular where the appeal fails.

1. The respondent's submissions refer to the dictum of Basten JA in the Court of Appeal in AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33]:

33 ... 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 sub-s (1A), but subject to the generality of paragraph (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.

1. The respondent's submissions referred to some of the factors listed in s 88(1A). The first submission was that the appeal had contributed to the unreasonable prolongation of the proceedings (factor (b)).

1. Our principal decision commented on the length of time this matter has been before the Tribunal. We recognise that this matter has been before the Tribunal for a very long time. It is regrettable that statements that were made in December 2005, the subject of complaint to the Anti-Discrimination Board in October 2006 and referred to the Tribunal in October 2007 are still not resolved. We referred to the case's 'long and convoluted history' at para [12] of our principal decision.

1. Interlocutory skirmishes have the potential to lengthen considerably the time a matter is before the Tribunal, particularly when first instance proceedings are themselves divided to deal first with interlocutory issues, and then appeals are brought against those interlocutory rulings.

1. The respondent's submissions also refer to the impact of the delay on the respondent's desire to have a conclusion to these proceedings.

1. It is difficult, in our opinion, to give these factors great weight on the present occasion. The Tribunal at first instance chose to order its proceedings by dividing off the three questions, after considering the submissions of the parties. That having occurred, it was virtually certain that the appellants then be granted leave to appeal if they chose to appeal. Leave was granted. The appeal itself was conducted in an orderly way by both parties. Submissions to that effect were made by the appellants.

1. The appeal had four grounds, which we grouped into three questions in our reasons for decision. Had any of the three questions been resolved in favour of the appellants, the underlying complaint would have failed as outside jurisdiction, and the proceedings ended.

1. The respondent's submissions argue that they were untenable and had little merit. In our view, this submission has greater strength. The first two questions linked to Grounds 1, 3 and 4. We described them as '(a) the way the Tribunal approached the resolution of the three questions' (Ground 1) and '(b) taking into account the whole of the 8 December 2005 broadcast, and related matters' (Grounds 3 and 4). In our view these were very weak points. The argument in relation to question (a) put a strained construction on the way the Tribunal dealt with the preliminary point, and there was no substance in our view in the suggestion that the Tribunal had somehow converted the disposal of the question into a form of summary dismissal proceeding under which an onus had been cast on the appellant. The argument in relation to question (b) sought to impose an artificial constraint which would have prevented reasonable, contextual analysis of the way the broadcaster had expressed himself. The third point which we described as '(c) construction of the word 'race' in the ADA' (Ground 2) had more merit, largely because the racial characterisation 'Arab' adopted by the Tribunal was not a term used expressly by the broadcaster. To that extent, a novel question was raised.

1. The respondent's final submission was that the accessibility objects of the Act are fostered by an approach to costs on appeal that 'discourage interlocutory appeals which have no tenable basis and have the effect of substantially delaying the hearing of the substantive matter'.

1. We would not go as far as the respondent's submission does in suggesting that the appeal had no tenable basis at all, but we do think it was a weak appeal.

1. The respondent also submitted that the compensatory purpose to which Basten JA referred in AT is relevant to the exercise of discretion. The submissions note that the respondent is in receipt of aid from the Legal Aid Commission. He is a legally assisted person within the meaning of s 42 of the Legal Aid Commission Act 1979. The submissions note that he remains at risk of being levied for a contribution to the cost of legal services provided to him. In reply, the appellants noted that there is no evidence that the respondent is at risk of such a demand. We doubt whether we should give significant weight to this point.

1. As we see it the main points that favour a costs order are these: the respondent was exposed to a second round of litigation at the appeal level; the appeal has been unsuccessful; and, three of the four grounds relied upon by the appellants were manifestly weak.

1. In our view, the respondent should, we consider, receive some compensation by way of an order for costs. The costs order will be confined in its scope in the following ways: for three-quarters of the costs of preparation of the submissions in reply to the appeal, costs of appearance of counsel at the appeal hearing, and all of the costs of the present submissions.

Order

That the appellants' pay the respondent's costs of the appeal, as agreed or assessed, confined to the following: three-quarters of the costs of preparation of the submissions in reply to the appeal and of the costs of appearance of counsel at the appeal hearing; and all of the costs of the present submissions.

Decision last updated: 23 April 2013