Linnell v Seachem Australia Pty Ltd (No 2)

[2011] NSWADT 178

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Linnell v Seachem Australia Pty Ltd (No 2) [2011] NSWADT 178
Hearing dates:	On the papers, written submissions closed 25 May 2011
Decision date:	22 July 2011
Jurisdiction:	Equal Opportunity Division
Before:	C Huntsman, Judicial Member N Hiffernan, Non Judicial Member Z Antonios, Non Judicial Member
Decision:	The application for costs is refused
Catchwords:	Costs application; whether Applicant was vexatious in pursuing claim; whether fair to award costs.
Legislation Cited:	Section 110 Anti-Discrimination Act 1977; Section 88 Administrative Decision Tribunal Act 1997
Cases Cited:	Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254 Rae v Commissioner of Police, New South Wales Police Force (GD) [2011]NSWADTAP 30 Haas v Hosking (No 2) [2010] NSWADT 203 Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61 Linnell v Seachem Australia Pty Ltd [2010] NSWADT111
Category:	Costs
Parties:	Patricia Linnell (Applicant) Seachem Australia Pty Ltd (Respondent)
Representation:	P Linnell (Applicant in person) Michael Flaherty, solicitor
File Number(s):	091114

REasons for decision

Background

1. This was an application for costs, made by the Respondent, Seachem Australia Pty Ltd, that the Applicant pay the Respondent's costs in the proceedings. On 25 March 2011 the Tribunal made an order that the application by the Applicant, Ms Linnell, before the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal),alleging sexual harassment and victimisation by the Respondent, be dismissed (refer Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61).

1. The history of the proceedings was that on 18 February 2009 the Applicant made a complaint to the Anti-Discrimination Board of sexual harassment and victimisation. The complaint was subsequently referred to the Tribunal. In the proceedings the Applicant alleged that the Respondent unlawfully sexually harassed her, in her employment, when, on 15 January 2009, a co-worker, Ms Humphreys, stated to a warehouse employee (in reference to the Applicant) that "Trish can go and suck someone's dick". The Applicant alleged that the Respondent unlawfully victimised her when, following her complaint about Ms Humphreys' conduct to the Director of the Respondent company, Mr Whiteley, no action was taken against Ms Humphreys. She further alleged that Mr Whiteley then began to constantly unfairly criticise her work, which she claimed culminated in the unlawful termination of her employment on 10 February 2009. The Respondent maintained that the complaint had been investigated, that Ms Humphreys denied the allegation and was nevertheless given a warning. The Respondent's case was that the Applicant was terminated for poor work performance within the probationary period of her employment, some four weeks after the complaint was made.

1. On the date of the decision by the Tribunal, being 25 March 2011, detailed written reasons for decision were published and reference should be had to the written reasons for decision: Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61.

1. The Tribunal made directions for filing of written submissions in relation to the application for costs and both parties filed written submissions. The application for costs was determined on the papers.

The Respondent's submissions

1. The Respondent provided detailed written submissions which were received by the Tribunal on 5 May 2011. A copy of the written submissions are retained on the Tribunal file and may be referred to, the entirety of the submissions will not be summarised in these written reasons the decision, but were carefully considered by the Tribunal. In summary, the Respondent noted the findings made by the Tribunal, with respect to the complaint of sexual harassment made by the Applicant, and noted that the Tribunal found that the Applicant had had not established, to the required standard of proof, that Ms Humphreys had made the comment as alleged. The Respondent noted that the Tribunal did not need to determine whether the conduct alleged could constitute sexual harassment, but noted the Tribunal's observation that the Tribunal would not have been satisfied that the Applicant had established that the harassing conduct was conduct of a sexual nature. The Respondent noted the findings of the Tribunal in relation to the complaint of victimisation, that the Applicant had not established causation in relation to her victimisation claim and so the claim of victimisation failed. The Respondent noted the Tribunal's finding that the Tribunal could not draw inferences on the evidence presented that a reason for the termination of the Applicant's employment was her reporting of Ms Humphreys' alleged statement of 15 January 2009.

1. The Respondent noted the provisions of section 88(1A) of the ADT Act and the decision of the Tribunal in the matter of Haas v Hoskings (No 2) [2010] NSW ADT 203. The Respondent attached documents to the submission (attachments a to h).The Respondent relied on the following factors for consideration:

• that the Applicant had conducted the proceedings in a way that unnecessarily disadvantaged the Respondent;
• the relative strengths of the claims and tenable basis in fact and law;
• the nature and complexity of the proceedings;
• other relevant matters.

1. The Respondent submits that the Applicant's conduct, in the way of conducting the proceedings, disadvantaged the Respondent. The Respondent submits that the Applicant commenced proceedings in haste, that the application contained, to a large extent, complaints as to Mr Whiteley and his handling of the complaint; that as well as seeking remedies such as acknowledgement of sexual abuse, and a reprimand for Ms Humphreys, and a letter of apology, the application also sought monetary compensation. The Respondent asserts that despite discussions at case conferences at the Tribunal of the Respondent's view that the conduct alleged could not constitute sexual harassment within the meaning of the Act, and advice given to the Applicant during case conferences that she obtain legal advice, she pursued her application and did not obtain legal advice/representation. Material filed by the Applicant contained allegations with respect to Mr Whiteley, many of which were of a personal nature. The Respondent submits that the Applicant proceeded with the claim without regards to the merits of the case. The intention, in the Respondent's view, was to "attack" Mr Whiteley,with a view to obtaining a very significant sum of compensation. The Applicant was aware of the possibility of costs orders being made by the Tribunal. The Respondent notes correspondence to the Applicant, by the Respondent, advising of the Respondent's view that the claim could not succeed and noting the advice by the Tribunal that she seek legal advice.

1. The Respondent states that by correspondence of 11 February 2010 a reasonable offer of settlement was made by the Respondent to the Applicant. However, the Applicant did not settle the proceedings and there were further directions hearings held before the final substantive hearing. On two occasions the Applicant sought leave not to appear at directions hearings and the Respondent was put the expense of having Counsel appear. At the substantive hearing the Applicant, notwithstanding having commenced the matter some 18 months earlier, did not produce evidence from any party. In the Respondent's view it is significant that the Applicant did not call as a witness Mr Lewis, the person alleged to have reported the alleged comment to the Applicant. In contrast the Respondent called evidence from relevant witnesses including Ms Humphreys and other employees. The Respondent submits that the Applicant conducted the proceedings in a careless way, and that the Applicant was not genuine and sincere in prosecuting the proceedings, but rather had embarked on a course which involved a personal attack on Mr Whiteley with the hope of securing a significant sum of money. The Respondent submits that the Applicant commenced the proceedings in haste and without proper consideration, and vexatiously continued to prosecute the proceedings, and recklessly continued on this path.

1. The Respondent specifically noted that it is not contended by the Respondent that the Applicant unnecessarily prolonged the proceedings.

1. The Respondent submits that the Tribunal would be well satisfied, given the Tribunal's findings, that the Applicant's claim lacked merit and strength from the outset. The Respondent notes that both the allegations of sexual harassment and victimisation failed. The Respondent states "indeed, the Tribunal (though not deciding the question) was of the view that, even if the conduct was proved, the claim of sexual harassment would not succeed". The Respondent submits that the Tribunal accepted the evidence of the Respondent that the Applicant's work performance had been under review since her commencement, and that termination of her employment resulted from performance reviews. Further, the Respondent submitted that to a large part the Applicant conceded the Respondent's evidence in this area. The Respondent submits it is reasonable to conclude, having regard to the Tribunal's findings, that both the Applicant's claims had no tenable basis in either fact or law.

1. The Respondent states there is no submission that the proceedings were complex, but the Respondent does submit that the nature of the proceedings were serious. The Respondent notes that the allegations made by the Applicant were grave, she repeatedly alleged she suffered sexual abuse and made numerous allegations with respect to the Respondent, and Mr Whiteley in particular. The nature of the allegations required the Respondent to defend the matter thoroughly and in detail.

1. The Respondent notes the observations of the Tribunal, in previous cases, of its reluctance to make costs orders in the Equal Opportunity Division; however the Respondent submits that the present case is a matter where a costs order is not only fair but warranted. The Respondent notes that the Tribunal would be mindful that the Equal Opportunity Division deals with human rights, and that applicants should not be dissuaded from bringing applications by the fear of the costs consequences. However, the Respondent submits that the Tribunal would also be mindful of not permitting unmeritorious applications to be prosecuted without fear of any consequence at all. The Respondent submits in the present case the Respondent was subjected to proceedings involving serious allegations against it, and those allegations were not only unable to be proved, but, even if proved, were not capable of constituting conduct prohibited by the Act. The Respondent submits, noting the allegations to which Mr Whiteley was subject which were largely personal in nature, by material filed by the Applicant in the proceedings, that the Tribunal would be concerned with all elements of human rights, including those of a witness or officeholder for a Respondent.

1. The Respondent notes that the Tribunal should determine whether it is "fair" to award costs and notes the criteria set out in section 88(1A) of the Act, and submits that the Tribunal would be satisfied that it is fair to make an order that the Applicant should pay the Respondent's costs of the proceedings.

The Applicant's case

1. The Applicant provided detailed written submissions in response to those filed by the Respondent. All of the detail provided in the written submissions will not be summarised in these written reasons for decision, however the Applicant's submissions were carefully considered by the Tribunal. In summary the Applicant's submissions were as follows. The Applicant notes the provisions of section 88(1A) of the Act. The Applicant submits that she did not fail to comply with any order or direction of the Tribunal and did not cause delay in the proceedings. The Applicant did not attempt to deceive another party, or the Tribunal, and did not conduct the proceedings vexatiously.

1. The Applicant notes the Respondent's submission that the Applicant conducted the proceedings in a careless manner and was not genuine in prosecuting the proceedings and rejects those submissions. The Applicant states she suffered detriment whilst an employee of the Respondent, including loss of employment, hurt and distress, as a result of words spoken about her. She states she had good reasons to feel that she had been victimised in the workplace and her prosecution of these proceedings, on her own and unrepresented, is testament to how strongly she felt about the hurt and distress she suffered.

1. The Applicant notes the Respondent's submission that she vexatiously continued to prosecute the proceedings. The Applicant notes the Respondent's reliance on correspondence to the Applicant expressing the view of the Respondent that the proceedings lacked merit. The Applicant submits that these letters carry no weight, as they are written by the other party in the proceedings, and the Applicant further refers to the decision of the Tribunal of 12 May 2010 in relation to the Respondent's application to have the application dismissed. The Applicant states that in that decision the Tribunal rejected the Respondent's arguments that she had no case to argue in relation to her complaints of sexual harassment and victimisation. The Applicant refers to paragraph 33 of that decision (Linnell v Seachem Australia Pty Ltd [2010] NSWADT111). The Applicant submits that given the Tribunal's findings in that matter, it cannot be argued that the Applicant pursued her claim vexatiously and recklessly, she had a case to argue. The Applicant notes that ultimately she failed to adduce the evidence necessary to substantiate her complaints. She submits however, citing the case of Neeson v Director General, New South Wales Department of Education and Training (no. 2) [2010] NSWADT 92,that her lack of legal representation and lack of familiarity with the Tribunal and its processes should be taken into account.

1. The Applicant does not accept the Respondent's submission that her claim lacked merit and strength from the outset and relies on the Tribunal's decision of 12 May 2010 in this respect.

1. The Applicant accepts that the proceedings were serious in nature, noting that her employment was terminated by the Respondent, and this caused her serious detriment. She felt she had been victimised as a result of her complaints of sexual harassment. While the words she believed were said about her may not have amounted to sexual harassment, it is indisputable that there were hurtful and abusive. The Applicant acknowledges that the Respondent was acting just to clear its name, however asks the Tribunal to take into account that she was also anxious to prosecute her ex-employer in relation to termination of her employment, and the victimisation and other harassment she felt she had been subjected to. The Applicant submits that she had no role to play in the Respondent's decision to retain counsel and incur those costs, this was a decision made by the Respondent.

1. The Applicant refers to the Respondent's submission that the Equal Opportunity Division deals with human rights, and applicants should not be dissuaded from bringing applications by fear of costs consequences. She submits that the Respondent seems to be suggesting that she has wantonly made a complaint without a view for the consequences. She states this is untrue, she lost her job and livelihood, and is not financially supported by anyone. She believed that she had a case to argue, and spent much of her own time and effort to bring this case to the Tribunal. She did not take this decision lightly.

1. In conclusion the Applicant submits, when considering whether to award costs in this matter, the Tribunal will need to determine if it is fair to do so in the circumstances, and in determining whether an award of costs is fair, the Tribunal will give consideration to the criteria as set out in section 88(1A) of the Act. The Applicant submits there are several criteria which, when considered, would persuade the Tribunal that a costs award would be unfair. She says the criteria which opposes the making of a costs order in favour of the Respondent includes the Respondent's conduct of the case to the disadvantage of the complainant; not giving a party an adequate opportunity to respond to any relevant information which is against them; and the Applicant submits that the Tribunal, having regard to section 88(1A) of the Act, would be satisfied that it is unfair to order that the Applicant should pay the Respondent costs of the proceedings.

1. The Applicant submits there are no compelling grounds to warrant an order of costs against the Applicant.

Discussion of law, evidence, and the Tribunal's findings

1. The Tribunal's power to make costs orders in complaints referred to it under the Anti-Discrimination Act 1977 is to be found in Section 110 of that Act, which provides:

110 Tribunal may award costs

The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint.

1. Section 88 of the Administrative Decisions Tribunal Act 1997 provides:

88 Costs

(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.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.'

1. In their current form, sections 110 and 88 were inserted by the Administrative Decisions Tribunal Amendment Act 2008, with effect from 1 January 2009.

1. Section 88(1) gives effect to the long-standing practice of the Tribunal that, generally speaking, each party is to bear its own costs. The Tribunal may only vary that practice if it considers it 'fair to do so': section 88(1A). In determining whether it is fair, the Tribunal must have regard to the matters set out in section 88(1A).

1. The provisions of section 88 of the ADT Act, in the context of the Equal Opportunity Division of the Tribunal, were subject of consideration by the Appeal Panel of the Tribunal in the case of Rae v Commissioner of Police, New South Wales Police Force (GD) [2011]NSWADTAP 30. The case involved an appeal by the applicant in proceedings in the Equal Opportunity Division of the Tribunal, to the Appeal Panel of the Tribunal, in relation to a costs order which had been made against the applicant/appellant. In the decision the learned President of the Tribunal considered the legislative provisions, and in particular the issue of costs orders in the Equal Opportunity Division:

Costs Orders in the Equal Opportunity jurisdiction

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

7.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.

8.ThisTribunal'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.

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

1. The legislative provisions were also subject of consideration by the Equal Opportunity Division of the Tribunal in the case of Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254. [These considerations were not subject of adverse comment by the Appeal Panel, on appeal. The Appeal Panel focused on the effect of the withdrawal of proceedings and the timing of the Applicant's withdrawal on the issue of costs].The Tribunal stated:

39This current or 'new' version of section 88, in which the criterion of 'fairness' stated and elaborated in subsection (1A) determines whether costs should be awarded, replaced an earlier or 'old' version of the section in which the criterion was that there should be 'special circumstances warranting an award of costs'. The 'new' version became operative on 1 January 2009. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 (a case decided under the Retail Leases Act 1994), the Tribunal stated at [72]:-

What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant's entitlement to costs. ...[T]he result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.

40Also on 1 January 2009, an earlier version of section 110 of the AD Act was replaced by the current provision stating that costs in proceedings under this Act are to be regulated by section 88 of the ADT Act. Under the earlier version of section 110, the starting-point was a principle that the parties should pay their costs, but the Tribunal was empowered to make a costs order if there were circumstances justifying such an order. It was recognised that this test broadly resembled the criterion of 'special circumstances' in the 'old' version of section 88. In Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226 at [15], a case brought under the AD Act, the Tribunal made this observation (contrasting significantly with the dictum quoted in the preceding paragraph) about the effect of the earlier version of section 110:-

15 Costs orders are rarely made against unsuccessful applicants in anti-discrimination matters. The Appeal Panel observed in Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [42] 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.

41In Haas v Hosking (No 2) [2010] NSWADT 203 at [30 - 36] and [38], the Tribunal said:-

30 The current version of section 110 [of the AD Act] was considered by the Appeal Panel in MT's case [MT v AA (No 2) (EOD) [2010] ADTAP 28]. The Panel observed [at 4-5]:

'4 .... There is no issue of statutory construction in these proceedings which would give rise to a beneficial interpretation [of section 110] being preferred. The test is plain. The Appeal Panel must be satisfied that it is 'fair' to award costs having regard to the matters listed in s 88(1A) of the ADT Act which includes any matter that the Appeal Panel considers relevant. While one of those considerations is whether proceedings have been conducted vexatiously, that is not the only relevant matter.

5 Nevertheless, ... it is relevant that these proceedings are in the Equal Opportunity Division rather than, for example, in the Retail Leases Division where parties are in a commercial relationship: Gizah Pty Limited v AXA Trustees Limited (No 2) NSWADT 164 at [16]. We accept that the Tribunal has been more inclined to make costs orders in cases in the Retail Leases Division given the commercial nature of those proceedings: Rucom Pty Ltd and Anor v Multiplex &Ors [2010] NSWADT 1 at [37].'

31 In AT v Commissioner of Police [2010] NSWCA 131, the Court of Appeal considered the provisions of section 88, in relation to proceedings which had been conducted at first instance in the Tribunal's General Division. In that case, the Court of Appeal ordered that the Commissioner of Police pay the applicant's costs of, inter alia, a successful application at first instance. Basten JA said [at 33]:

'33 That approach [of ordering the Commissioner of Police to bear the applicant's costs of a successful application for review] does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. 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.'

32 His Honour had earlier observed [at 30]:

'30 There will, as the Chief Justice [in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150] recognised ... be cases in which it may be appropriate for this Court to defer to the specialist court or Tribunal, on the basis that it will have a better understanding of the possible consequences, within its own jurisdiction, of the exercise of the power to award costs.'

33 Though His Honour was not there specifically referring to the Equal Opportunity Division of this Tribunal, his remarks are consistent with the view that specialist jurisdictions of that nature are often well placed, within the confines of their statutory powers and discretions, to identify factors relevant to the award of costs.

34 Having regard to these observations of the Court of Appeal and of the Tribunal, it is appropriate in this case to take into account the fact that the proceedings were brought in the latter's Equal Opportunity Division, and were not proceedings of a commercial character.

35 In Murtough v NSW Bar Association [2008] NSWADT 166, Deputy President Britton, sitting in the Equal Opportunity Division, observed at [27]:

'A determination of the question whether costs should be awarded requires a balance to be struck between the "chilling effect" of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings.'

36 The learned Deputy President was there considering section 110 in its previous form, but as the general rule that costs do not follow the event is preserved in the current form of section 88(1) of the Administrative Decisions Tribunal Act 1997, her comments apply equally to its present form.

38 In exercising its discretion under section 88(1A)(e) to take into account 'any other matter that the Tribunal considers relevant', it is proper for the Tribunal to take into account the fact that proceedings are bought in its Equal Opportunity Division, that it is a human rights jurisdiction, the public benefit that such a jurisdiction provides, and the potential 'chilling effect' of too readily making costs orders against an unsuccessful complainant. Those considerations, of course, may not be entertained in isolation. They must be weighed together with the factors listed in section 88(1A). The aim of the weighing process is to determine whether the imposition of a costs order would be 'fair'. The previous practice of refraining from making costs orders except where there has been an abuse of process - in the sense that the complainant acted frivolously, vexatiously or without good faith (Tu's case [at 42]) - or where special circumstances are demonstrated ([O'Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188 [at 26]]) has been displaced by the provisions of section 88 as they now stand.

1. It is clear that the Tribunal's task in assessing an application for costs is to consider whether the Tribunal is to order costs, having regard to the facts of the particular case, and the matters set out in section 88(1A) of the ADT Act. It is also important to note that the legislation makes clear that the general rule is that each party bear their own costs, that is, the starting point is that each party bear their own costs. As noted above, the learned President of the Tribunal, as Appeal Panel in the case of Rae v Commissioner of Police, New South Wales Police Force (GD) [2011]NSWADTAP 30, has also noted the public interest objectives of the Equal Opportunity Division, and that the primary rule (of each party bearing their own costs) reinforces the public interest objectives, and that the exception to the general rule is not lightly to be applied. The Tribunalhas considered whether it would be fair in the present case to order costs in light of the legislative provisions and guidance offered by the cases discussed.

1. The Respondent's first submission is that the Applicant conducted the proceedings in a way that unnecessarily disadvantaged the Respondent by her conduct: this submission is grounded in section 88(1A)(a) of the ADT ACT. In subsection 88(1A)(a)(i) to (vi) a number of matters as set out, such as failing to comply with directions of the Tribunal, causing an adjournment, vexatiously conducting the proceedings. The Respondent submits that the conduct was vexatious, given that it was a personal attack on an office holder of the Respondent, Mr Whiteley, for financial gain, recklessly, and without bona fides. The Respondent also relies on the failure of the Applicant to accept a settlement offer. The Respondent also refers to the Applicant's failure to adduce evidence from witnesses, in contrast to the Respondent's provision of relevant witnesses. The Tribunal may, in its discretion, consider the conduct of parties generally, in the proceedings, in assessing whether to award costs, however, section 88(1A) of the ADT Act specifically refers to vexatiously conducting the proceedings. The Applicant, for her part, states that she was genuinely conducting the proceedings to the best of her ability, as an unrepresented litigant, and that she was genuine in prosecuting the proceedings, given the hurt and distress which she experiences due to words spoken about her in the workplace, and that she suffered detriment through losing employment.

1. The Tribunal is not satisfied that she vexatiously conducted the proceedings nor could the Tribunal conclude on the evidence that her motivation was not genuine. The Tribunal accepts that the Applicant did find the words reported to her to be offensive. The Applicant, at all times during the proceedings, appeared to be committed to prosecuting her claim: she provided written submissions in a fairly timely manner during the proceedings overall, and clearly indicated, on an ongoing basis, her commitment to her application. This commitment was evident even on the two occasions when she sought leave to be excused from personal attendance at a case conference at the Tribunal. At relevant stages of the proceedings she prepared and filed written material in support of her application, and the Tribunal was not satisfied that there was a lack of commitment, or lack of bona fides. The Tribunal was not satisfied that it would be fair to order costs against the Applicant on this basis, on the evidence in this matter.

1. In relation to the Applicant's non-acceptance of a settlement proposal, the Tribunal notes that the evidence presented by the Respondent is that the offer of settlement was, that the Applicant withdraw her claim and Respondent would not seek costs. The Tribunal notes the observations of the Tribunal in the case of Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254, a decision of Deputy President Chesterman, on a similar issue:

104.The Commissioner's settlement proposal. I do not agree with Ms Andersen's submission that Mr Rae's rejection of the Commissioner's proposal conveyed in Henry Davis York's letter of 21 May 2010 (see [23 - 24] above) provides grounds for awarding costs against him. My reason is that this proposal did not involve a genuine compromise of the claim made by Mr Rae. All that it offered was that if Mr Rae withdrew his claim within one week, the Commissioner would not seek costs.

105In Jenkins v YMCA of Great Lakes Inc t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335, the Applicant rejected a similar offer made by the Respondent, then later (as outlined above) withdrew his complaint. In holding that this rejection of the offer did not provide grounds for ordering costs against him under section 110 of the AD Act (as it then stood), the Tribunal said (at [29]):-

29 The offer... was, in effect, an invitation to capitulate, rather than a true offer of compromise. Costs aside, it sought to obtain for the [Respondent] the best result it could possibly have obtained, had it succeeded at the hearing. Given the presumption against costs orders enshrined in section 110(1), the element of compromise on costs was so slight as to be of little significance. Generally speaking, invitations to capitulate do not entitle the party making them to a more generous costs order than they would otherwise receive, even in jurisdictions where costs follow the event: Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353; Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358.

1. In the present matter, the Tribunal finds on a similar basis, that the Respondent's evidence and submissions about the Applicant's failure to accept a settlement offer (which was an offer that if she withdrew the proceedings the Respondent would not seek costs), in the context of the evidence overall, does not indicate that it would be fair to order costs against the Applicant. Further, the Tribunal was not satisfied on the evidence that the Applicant did not possess a bona fide belief in the merit of her case, and has considered on this basis, considering the evidence in its entirety, that it would not be fair to award costs because the Applicant refused a settlement offer and proceeded to hearing.

1. The Respondent also relies on section 88 (1A)(c) and (d) of the ADT Act, namely, the relative strengths of the claim made by the parties, including whether a party has made a claim that has no tenable basis in fact or law; and the nature and complexity of the proceedings. The submissions on these bases are set out above. At the hearing of the substantive matter the Tribunal did find that the Applicant had not established her case of sexual harassment, given that the Tribunal was not satisfied that the Applicant had established that the comment was made, having regard to the requisite standard of proof, on the evidence presented by the Applicant. This finding does not equate to a finding that the Applicant's case had no tenable basis in fact, rather the Tribunal had no basis for preferring the evidence of the Applicant over the evidence of the Respondent on the central issue of whether the words alleged were used. The Tribunal notes the evidence supports a finding that the Applicant reported to Mr Whiteley that the words were said, at the time that she believed they were said. The Tribunal considers the evidence supports a conclusion that the Applicant did believe the words were said, and always reported being upset by the words. The Tribunal could not be satisfied that the Applicant's case had no tenable basis in fact. As was observed by the Tribunal in Haas v Hosking (No 2) [2010] NSWADT 203 ( Haas case) :

Relative strengths of the parties' claims - paragraph (c)

24The Tribunal was not satisfied that the remarks complained of were made, or that any conversation which occurred between Mr Hosking and MrVagg constituted a 'public act', in the sense that it could be overheard by members of the public. That conclusion was reached after a detailed consideration of the evidence, as tested under skilful cross-examination, and after a comparison of the evidence of each witness. The mere fact that the Tribunal is not satisfied as to the reliability of evidence brought by a party would not alone incline it to make a costs order, at least in a case where the complainant had no obvious reason for doubting the reliability of his or her witnesses.

1. The Tribunal has carefully considered the Respondent's submission that the Applicant did not call witnesses to give oral testimony in the prosecution of her claim - the central witness, Mr Lewis, was not called to give oral testimony, a written statement was relied upon. In the absence of other evidence of the Applicant's commitment to prosecuting her claim, this may have caused the Tribunal some concern; however the Tribunal notes the Applicant provided an explanation that she was concerned as to the impact on Mr Lewis (although the basis for such concern was not really explained). However, she did obtain the witness statement, and she did pursue her case with preparation and presentation of submissions, and with attendance at the hearing and through cross examination of the witnesses for the Respondent. The Tribunal is not satisfied, considering the evidence overall, that the Applicant's failure to call Mr Lewis to give oral evidence is a matter which makes it fair to award costs to the Respondent.

1. The Respondent submits that the Applicant's case had no tenable basis in law. The Tribunal notes the findings of the Tribunal in May 2010 (Linnell v Seachem Australia Pty Ltd [2010] NSWADT111) that the Applicant had a case to present and must conclude, given this prior finding, that there was an arguable case in law.

1. The Respondent also submits that the Applicant's conduct, in being unrepresented, is a relevant issue. The Tribunal notes comments in Haas case about this issue, as follows:

Nature and complexity of proceedings - paragraph (d)

25It was proper and prudent for Mr Hosking to incur the expense of legal representation, given the nature of the allegations against him. That would be so, whether or not he had been elected to a local Council after the complaint was made. However, the mere fact that a party chooses to be legally represented, even where that choice is prudent - as it commonly is - does not justify an award for the costs for that representation, or establish that the nature of proceedings are such as to do so. It goes to the question of quantum, if a costs order is made.

Other factors - paragraph (e)

26The fact that the complaint was dismissed is relevant, but not determinative of the claim for costs. The fact that Mr Haas exercised his right to represent himself should not expose him to penalty, including the imposition of an order for costs. In any event, the purpose of costs orders is not punitive, and the Tribunal is not satisfied that his costs of the proceedings were 'minimal' as alleged. Those costs have not been quantified. The fact that Mr Hosking engaged in settlement discussions, in the absence of any evidence as to their content, does not incline the Tribunal to make an award for costs, particularly in view of his earlier refusals to conciliate or mediate.

1. The Tribunal notes it is a party's choice to be legally represented, and, while accepting that the allegations were serious, so that the Respondent felt it appropriate to carefully defend itself, including by engagement of legal representation; and the Tribunal further accepts the prudence of this course; the Tribunal cannot conclude, on the evidence overall in this matter, that the Applicant not being legally represented, while making a case for the Respondent to answer, is a basis on which it would be fair to award costs.

1. For the reasons discussed above the Tribunal is not satisfied that it would be fair to order the Applicant to pay the Respondent's costs, and accordingly declined to so order.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 22 July 2011