Kitchener v Awabakal Local Aboriginal Land Council

[2013] NSWADT 11

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Kitchener v Awabakal Local Aboriginal Land Council [2013] NSWADT 11
Hearing dates:	7 December 2013 (on papers)
Decision date:	21 January 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The applicant is to pay the respondents' costs from 12 September 2012 in the sum of $5584.50
Catchwords:	COSTS - whether fair to award costs - non-compliance with directions - failure to contact Respondents or Tribunal - failure to withdraw complaint
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Bevnol Constructions & Developments Pty Ltd v De Simone (Domestic Building) [2009] VCAT 546 Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215
Category:	Interlocutory applications
Parties:	Cheryl Kitchener (Applicant) Awabakal Local Aboriginal Land Council (1st Respondent) Harry Brandy (2nd Respondent)
Representation:	Counsel T Saunders (1st and 2nd Respondents) C Kitchener (Applicant in person) Eakin McCaffery Cox (1st and 2nd Respondents)
File Number(s):	121039

REASONS FOR DECISION

Introduction

1. Ms Cheryl Kitchener complained that Mr Harry Brandy, the chairperson of the Awabakal Local Aboriginal Land Council, sexually harassed her and that the Council terminated her employment for misconduct after she complained. The Tribunal dismissed Ms Kitchener's complaints because she had not complied with directions to file her evidence. The Council and Mr Brandy have applied for costs. The general rule is that each party pays their own costs unless it is fair to award costs having regard to various matters. In this case it is fair to make a partial award of costs of $5,584.50.

Background

1. The Respondents filed an affidavit from their solicitor, Mr Stephen Boatswain, dated 27 September 2012 setting out the procedural history of this matter. The following summary is consistent with that affidavit and the Tribunal's file.

1. On 20 March 2012, the President of the Anti-Discrimination Board referred a complaint from Ms Kitchener against the Awabakal Local Aboriginal Land Council and Harry Brandy to the Tribunal. At the first case conference on 18 April 2012, Ms Kitchener was directed to file and serve her evidence by 30 May 2012. Ms Kitchener filed five character references but no other evidence and the matter was re-listed on 20 June 2012.

1. Ms Kitchener was advised by the Judicial Member conducting the case conference on 20 June 2012 that the character references did not set out the evidence she needed to adduce to support her claim. Ms Kitchener told the Tribunal that she had applied for legal assistance from Legal Aid NSW and was waiting for a response. The matter remained listed for case conference on 4 July 2012 and Ms Kitchener was directed to let the Tribunal and the Respondents know by that date whether she had been granted legal assistance.

1. At the case conference on 4 July, Ms Kitchener told the Tribunal that she had contacted Legal Aid NSW on 19 June but was told that her application had not been determined. The Tribunal listed the matter for a fourth case conference on 1 August 2012.

1. On 1 August Ms Kitchener told the Tribunal that although her application for legal assistance had still not been determined she wanted directions to be made so that her complaint could proceed. The Tribunal directed Ms Kitchener to file and serve her evidence by 12 September 2012.

1. Ms Kitchener did not file her evidence by the due date. The Respondents wrote to her on 17 September requesting that she provide an explanation for her non-compliance. The Respondents also foreshadowed an application for costs if they did not hear from her within 48 hours. Ms Kitchener did not respond.

1. On 27 September the Respondents applied for the complaints to be dismissed for "want of prosecution", that is, the failure of Ms Kitchener to pursue her complaint in a timely manner. The Respondents also applied for costs. Ms Kitchener was directed to file and serve a response to the dismissal application by 26 October 2012 and the application was listed for hearing on 6 November 2012.

1. Ms Kitchener did not file a submissions or attend the dismissal hearing. The Tribunal dismissed the complaints for want of prosecution under s 102 of the Anti-Discrimination Act 1977 and/or s 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997. The Respondents were directed to file and serve any application for costs by 14 November 2012 and Ms Kitchener was directed to file and serve any submissions in reply by 7 December 2012. The costs application was to be determined 'on the papers': ADT Act, s 76.

1. On 14 November 2011, the Respondents filed their costs submissions together with an Affidavit of Mr Boatswain dated 5 November 2012. Ms Kitchener filed a submission on 10 December 2012.

Legal principles

1. The Tribunal has power to award costs under s 88 of the ADT Act in relation to proceedings brought under the AD Act: AD Act, s 110. The general rule is that each party pays its own costs. Costs may only be awarded if the Tribunal is satisfied that it is fair to do so having regard to the matters listed in s 88 of the ADT Act:

(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. The Court of Appeal, in AT v Commissioner of Police, NSW [2010] NSWCA 131 at [26], held that the criterion of fairness was "not qualitatively different" from "the exercise of an unfettered discretion". The court went at [33] on to emphasise the general principle that each party should bear its own costs adding that:

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 subs (1A), but subject to the generality of para (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. In relation to the objects of the ADT Act and the nature of the Equal Opportunity jurisdiction, the Appeal Panel has made the following observations in Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30 at [6] - [9]:

It has been most unusual for costs orders, especially full costs orders, to be made against a complainant in the equal opportunity jurisdiction.

The equal opportunity jurisdiction serves the important social purpose of providing a facility for the resolution of grievances over perceived unlawful discrimination against individuals on the basis of irrelevant personal characteristics or attributes, such as gender, race and marital status. The making of costs orders may discourage people from airing their grievances. The primary rule reinforces these public interest objectives. The exception is not lightly to be applied.

This Tribunal's costs rule is similar to the costs rule that applies in the Victorian Civil and Administrative Tribunal (VCAT): see Victorian Civil and Administrative Tribunal Act 1998, s 109. Morris J, then President of VCAT, sitting in that Tribunal's Planning List, noted in Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059:

It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that 'it is fair to do so' will influence the manner in which a particular jurisdiction operates. Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal.

In my view, these considerations apply with additional force to a human rights jurisdiction of the kind that the Equal Opportunity Division is.

Costs application

1. The Respondents applied for their costs incurred after 1 August 2012, the date on which Ms Kitchener told the Tribunal that she was ready to proceed. Prior to that date, Ms Kitchener was waiting for a response to her application for Legal Aid and had a legitimate reason for not filing her evidence. The costs incurred after that date were said to be $24,905 comprising $20,450 solicitors costs and $4,455 for counsel's fees. Alternatively, the Respondents applied for the costs incurred after 12 September 2012, the date by which Ms Kitchener was directed to file and serve her evidence. The costs incurred after that date were said to be $22,338 comprising $17,883 for solicitors costs and $4,455 for counsel's fees.

1. The Respondents submitted that costs should be awarded because Ms Kitchener:

(1)   failed to comply with an order or direction of the Tribunal without reasonable excuse: s 88(1A)(a)(i)

(2)   prolonged unreasonably the time taken to complete the proceedings: s 88(1A)(b)

(3)   asked for an adjournment as a result of a failure to comply with a direction: s 88(1A)(a)(iii)

(4)   caused an adjournment: s 88(1A)(a)(iv) and

(5)   vexatiously conducted the proceedings: s 88(1A)(vi).

Consideration

1. Ms Kitchener failed to comply with Tribunal's directions to file and serve her evidence by 30 May 2012 and, when that direction was not complied with, by 12 September 2012. She had a reasonable excuse for the first failure because she had not had a response to her application for legal assistance from Legal Aid NSW. Despite not having had a response to that application by 1 August 2012, Ms Kitchener indicated her willingness to have directions made for the preparation of the matter for hearing.

1. Ms Kitchener's explanation for her conduct was that:

I was brutalised by the [Council] and Harry Brandy throughout the hearings, members of the Board of Directors wrote letters to my employees accusing me of misappropriation at the [Council]. These actions forced me to lose work and I was in a deep depression.

During this period I did not have any paid legal advice, as I could not afford it.. . .I was totally confused and frustrated by the conduct of the [Council], Harry Brandy and the hearings.

1. While this explanation provides some evidence as to how Ms Kitchener felt about allegations that had been made about her, they do not explain her failure to comply with the directions. Ms Kitchener expressed her willingness for the complaints to go ahead at the case conference on 1 August. She did not respond to the Respondent's letter requesting that she contact them when she had not complied with the direction to file her evidence by 12 September.

1. As a result of Ms Kitchener's failure to file or serve her evidence she is responsible for prolonging the time taken to complete the proceedings. I accept the Respondent's submission that Ms Kitchener did so unreasonably.

1. The third and fourth basis on which a costs application is made are that Ms Kitchener asked for an adjournment or caused the proceedings to be adjourned. While there was no adjournment of the hearing date because none was set down, the Tribunal conducted four case conferences prior to dismissing the application. I accept that the proceedings were adjourned as a result of Ms Kitchener's failure to comply with directions.

1. Vexatiously conducting the proceedings refers to the manner in which the proceedings were conducted. In Bevnol Constructions & Developments Pty Ltd v De Simone (Domestic Building) [2009] VCAT 546, when interpreting the equivalent provision in the Victorian Civil and Administrative Tribunal Act 1998 Ross J held at [27] that "[A] proceeding may be said to have been conducted in a vexatious way 'if it is conducted in a way productive of serious and unjustified trouble or harassment, or conduct which is seriously and unfairly burdensome, prejudicial or damaging." (See also Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215 at [14].)

1. The Respondents allege that Ms Kitchener conducted the proceedings vexatiously on the basis of submissions it made on 6 November 2012. In those submissions, the Respondents allege that Ms Kitchener was summarily dismissed by the Council on 9 September 2011 for serious and wilful misconduct unrelated to her allegations of harassment. These assertions were not in the form of a statement and no evidence of Ms Kitchener's conduct was adduced. In those circumstances I am not in a position to make any findings about the allegations or whether, even if proved, they would amount to "vexatiously conducting the proceedings".

Consideration

1. Ms Kitchener failed to comply with a direction to file and serve her evidence without a reasonable excuse. She did not let the Respondents or the Tribunal know that she would not be complying with the timetable. She failed to provide submissions or appear in response to the application for summary dismissal for want of prosecution. The Respondents have incurred unnecessary costs in applying for the proceedings to be summarily dismissed. Ms Kitchener was on notice as of shortly after 27 September 2012 that the Respondents would be applying for costs.

1. I must determine whether, in those circumstances, it is fair to award costs either from 1 August 2012 or 12 September 2012. The general rule that each party bears its own costs and, particularly in the Equal Opportunity Division, it is important not to discourage people who cannot afford legal representation and who are unsuccessful in obtaining free legal assistance, from bringing a case in the Tribunal. But there is a limit. If there are good reasons for not being able to file evidence in time, applicants should ask for more time. If an applicant does not intend to pursue the complaint he or she should withdraw at the earliest opportunity. Respondents should not be made to incur costs unnecessarily because an applicant fails to communicate his or her intentions.

1. I am satisfied that at the case conference on 1 August 2012 Ms Kitchener intended to file and serve her evidence by 12 September. At some point after that she realised that she was either unwilling or unable to comply with that direction. At that point she should have contacted the Respondents and the Tribunal and either asked for more time or withdrawn her complaint. Instead she did nothing. She did not reply to the Respondents' letter asking her for an explanation. Rather than withdrawing her complaint she did not file a submission in response to the application for summary dismissal or attend the hearing. It was only when a costs application was made that she provided a submission. That submission does not say why she failed to contact the Respondents or the Tribunal.

1. It is fair to award costs from 12 September, the date on which Ms Kitchener was due to file her evidence. But given that the Equal Opportunity Division is a human rights jurisdiction and applicants should not be discouraged from lodging and pursuing legitimate complaints, a partial costs order is appropriate. I consider one quarter of the amount claimed to be fair in this case.

Order

The applicant is to pay the respondents' costs from 12 September 2012 in the sum of $5584.50.

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Decision last updated: 21 January 2013