Loke v Department of Education and Communities (No. 2)

[2015] NSWCATAD 199

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Loke v Department of Education and Communities (No. 2) [2015] NSWCATAD 199
Hearing dates:	On the papers.
Decision date:	01 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins Principal Member N Hiffernan General Member M Nasir General Member
Decision:	The respondent’s application for costs is refused.
Catchwords:	Costs – the ordinary rule is that each party pay its own costs - whether the respondent has established sufficient grounds to satisfy the Tribunal that it is fair to award costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	Ahmadi v State of NSW (NSW Police Force) [2013] NSWADT 149 AT v Commissioner of Police [2010] NSWCA 131 Calderbank v Calderbank [1975] 3 All ER 333 Loke v NSW Department of Education and Communities [2015] NSWCATAD 111 Loke v Director General, Department of Education and Communities [2013] NSWADT 212 Tu v University of Sydney (No 2) [2002] NSWADTAP 25
Category:	Costs
Parties:	Ganesh Loke (Applicant)
Representation:	Counsel: B Fogarty (Respondent)   Solicitors: Makinson d’Apice Lawyers (Respondent)
File Number(s):	131079

Reasons for decision

Background

1. On 29 May 2015, our decision to dismiss the applicant’s application/complaints of race discrimination, in his work at the respondent’s School was published: see Loke v NSW Department of Education and Communities [2015] NSWCATAD 111 (Loke [2015]). The complaints the subject of that application were transferred by the Anti-Discrimination Board, at the request of the applicant, on 26 August 2013 (see Loke [2015], at [5]). They were transferred under s 93(b) of the Anti-Discrimination Act 1977 (NSW) (the AD Act).

2. On 23 June 2015, the respondent wrote to the Tribunal noting that in its oral and written submissions it had sought costs in the event the applicant’s application/complaints were dismissed. As we had not addressed this application for costs, the respondent requested the matter be relisted so that submissions could be made in this regard. A copy of that letter was sent to the applicant.

3. On the same day, the applicant also wrote to the Tribunal objecting to the matter being relisted as the issue of costs had been discussed on three occasions during the course of the hearing of his application/complaints.

4. On 26 June 2015, the Registrar wrote to the parties informing them of directions made by the Presiding Member, Principal Member Higgins, in regard to the respondent’s request. The directions provided for the parties to file and serve written submissions on the issue of costs together with any material on which their submission was based. The Presiding Member also made an order that, subject to either party raising an objection, in writing, on or before 7 August 2015, the respondent’s application for costs would be determined on the papers pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

5. On the application of the respondent, Principal Member Higgins extended the time within which the parties were to file and serve their written submissions and supporting material.

6. The respondent filed and served its written submissions and supporting material on 21 July 2015. The supporting submission included a statutory declaration of Raymon Anderson, the solicitor having the day to day carriage of the matter in the firm representing the respondent.

7. In its submission the respondent sought an order that the applicant pay its costs in regard to our decision (Loke [2015]) and an earlier decision of Deputy President, Magistrate Hennessy in regard to other complaints the applicant had made against the respondent: Loke v Director General, Department of Education and Communities [2013] NSWADT 212 (Loke [2013]).

8. The quantum of costs sought by the respondent in regard to both matters was $115,760.54.

9. The applicant also filed and served an outline of written submissions on 21 July 2015. These submissions were dated 17 July. In these submissions, the applicant noted that as at the date of his submissions he had not received the respondent’s submissions in accordance with the time prescribed in the directions. As we have noted these were filed and served on 21 July 2015.

10. In the absence of either party objecting to the matter being determined on the papers we have now considered the material filed by the parties. For the reasons set out below, we are not satisfied, that it is fair to make an award of costs in favour of the respondent.

The applicable law

11. As noted in our decision the applicant’s application was transferred by the Anti-Discrimination Board, in 2013, to the then Administrative Decision Tribunal: see Loke [2015], at [5]. That Tribunal was abolished with the establishment of the Civil and Administrative Tribunal (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). And by reason of the transitional provisions in cl 7(2) and (3) of sch 1 of the Civil and Administrative Tribunal Act the applicant’s application was taken to be an application before the NSW Civil and Administrative Tribunal with the Tribunal being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition: see Loke [2015], at [11].

12. By reason of the transitional provisions the applicable provision in regard to costs is that set out in s 88 of the Administrative Decisions Tribunal Act 1997 as it applied immediately before the coming into force of the Civil and Administrative Tribunal Act. We also note s 76 of the Civil and Administrative Tribunal Act makes provision for matters to be determined on the papers.

13. S 88 of the Administrative Decisions Tribunal Act 1997, as it applied on 31 December 2013, was in the following terms:

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.

14. As can be seen from the above, the ordinary rule is that each party to proceedings before the Tribunal pay their own costs. Subs 60(1) of the Civil and Administrative Tribunal Act, we note, is in similar terms.

15. Subs 88(1A) of the Administrative Decisions Tribunal Act gives the Tribunal the discretion to award costs where it is satisfied that it would be “fair to do so” having regard to the matters set out in para (a) to (e) of that subs.

16. This provision was considered by the Court of Appeal in AT v Commissioner of Police [2010] NSWCA 131. At [33], Basten JA, in delivering the judgment of the Court said:

“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 [ADT Act].”

17. We note, in passing, that subs 60(2) of the Civil and Administrative Tribunal Act also gives the Tribunal the discretion to award costs where it is satisfied that there are “special circumstances warranting” an award of costs. Subs 60(3) of the Civil and Administrative Tribunal Act sets out the matters the Tribunal can have regard to when determining whether there are “special circumstances”. These are similar to those set out in subs 88(1A) of the Administrative Decisions Tribunal Act.

The respondent’s submission

18. While the respondent’s submissions were based on s 60 of the Civil and Administrative Tribunal Act, we have taken its arguments into account to the extent they are relevant to subs 88(1A) of the Administrative Decisions Tribunal Act.

19. The respondent urged the Tribunal to carefully consider the decision of Deputy President, Magistrate Hennessy in Loke [2013]. It was submitted that the findings and order made in that decision, which the respondent categorised as an interlocutory decision, evidenced how misconceived and lacking in substance the applicant’s allegations against the respondent were in the proceedings before us. It was also submitted the applicant wasted time and prolonged the proceedings before us by seeking to re-agitate matters that had been dealt with in the interlocutory proceedings and for which leave had been refused.

20. The respondent argued it had at all times vigorously defended the applicant’s allegations and argued that they were vexatious and oppressive and urged their dismissal.

21. The respondent submitted that its application for costs would not have come as a surprise to the applicant as it had raised the question of costs throughout the course of the proceedings. In this regard it pointed to its Points of Defence (filed on 18 February 2014), Calderbank letter to the applicant dated 10 June 2014 (i.e. letter in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333), written Outline of Submissions filed on 12 August 2014, and closing oral submissions at the hearing on 6 August 2014.

22. The respondent contended that the applicant had unnecessarily disadvantaged it by:

23. filing additional material on the first day of hearing when he had stated at the last case conference immediately before the hearing that he did not require leave to file any further material;

• failing to identify the alleged contraventions by the respondent of the Anti-Discrimination Act until the very commencement of the hearing;

• deciding not to press some allegations at the hearing when the respondent had prepared a response to those allegations, including the preparation of evidence; and

• continuing to tender additional material throughout the course of the hearing.

24. It was submitted that the applicant unreasonably prolonged the hearing and the finalisation of the matter because:

• it was not until the hearing in May 2014 that he informed the respondent and the Tribunal that he sought to rely on the class video footage he had prepared which resulted in the matter being adjourned to a further day of hearing on 6 August 2014 and for which the respondent was required to file and serve further evidence;

• additional material was tendered by the applicant throughout the course of the hearing;

• he failed to particularise the allegations he had made even though he had been given ample opportunity to do so;

• he continued to re-agitate matters during the hearing which had been dealt with in the interlocutory proceedings and for which leave had been refused; and

• the extended time between the hearing of the applicant’s leave application and the final day of hearing – this extended time the respondent contended was due to the applicant’s conducted in the prosecution of his claim.

25. The respondent also contended that the applicant’s claim did not have a tenable basis in fact or law and was therefore they were frivolous, vexatious, misconceived and lacking in substance because of:

• the applicant’s failure to establish any of his allegations, including those that had been made against Ms Khan and Mr Albanese personally;

• the applicant’s confrontational cross examined Ms Khan, Ms Ramadan and Mr Albanese; and

• the applicant’s failure to provide any probative evidence to support his claim.

26. The respondent contended that the decision of Deputy President, Magistrate Hennessy in Loke [2013] should have been seen by the applicant as the “writing on the wall” if he pursued his complaints in the proceedings before us. This was particularly so when Deputy President, Magistrate Hennessy, had clearly explained the difficulties associated with there being no comparator in a direct discrimination complaint.

27. The respondent also submitted that relevant to the Tribunal’s consideration as to whether an order for costs should be made in its favour were the number of complaints the applicant had filed with the Anti-Discrimination Board, which substantially arose from similar (if not identical) circumstances and the considerable disruption this had caused to the respondent’s teaching staff by the applicant insisting on calling on the staff members to be made available for cross examination at the hearing.

28. Attached to the Statutory Declaration of Mr Anderson were copies of the relevant invoices of counsel instructed to appear on behalf of the respondent and the solicitor of the respondent. Also attached to the Statutory Declaration was a copy of the Calderbank letter. In his letter Mr Anderson referred to earlier correspondence in which the respondent had advised that the applicant’s complaints were misconceived and lacking in substance and should be dismissed. The letter went on to note the respondent’s previous indications that it would seek an order for the applicant to pay its costs if he proceeded with his complaints and that “now in the spirit of compromise offers to resolve the matter on the below basis which does not include any order for you to pay the department’s costs”. Settlement was offered on the basis of the matter being dismissed and there being no order as to costs. The offer was stated to be open until 5:00pm on Friday 20 June 2014 after which time it expired.

29. The respondent contended that the applicant having failed to succeed in his application warranted the making an order that the applicant pay the respondent’s cost on an indemnity basis.

The applicant’s submissions

30. In his written submissions, the applicant said it should be noted that he was not a professional lawyer and represented himself throughout the hearing and the proceedings. He said he was not aware of particular rules and hence he should be given the benefit of doubt regarding them. He said he had presented witness statements from his side and on this basis his claims were not unfounded. He asserted a dismissal of his claims could have been due to him not having a lawyer to convince the Tribunal in a legal way.

31. The applicant also made reference to a number of solutions he had put to the respondent in order to resolve the claims he had made to the Anti-Discrimination Board. He said, these were all rejected and the respondent did not show any willingness to enter into any form of reconciliation.

32. The applicant contended that the matter that was before Deputy President, Magistrate Hennessy was different to that which was before us. He noted that Deputy President, Magistrate Hennessy did not ask him to pay any legal expenses of the respondent in her decision. He also said that the claims “handled” by Deputy President, Magistrate Hennessy were claims that had been rejected by the Anti-Discrimination Board while the claims that were the subject of the proceedings before us were claims that were accepted by the Anti-Discrimination Board and referred to the Tribunal.

33. The applicant noted that the general rule was that each party was to pay its own costs. He submitted that the respondent had not provided any circumstances justifying the making of an award of costs in its favour. In this regard he said he was not responsible for any delays in proceedings. These he said proceeded in the natural course of events. He asserted he had followed all directions given by the Tribunal and attended all hearings and provided all documents whenever requested. He said every person has a right to make a complaint when he/she feels victimised, harassed or discriminated against. The Anti-Discrimination Board is the legal avenue where such complaints can be made, and hence he should not be victimised by being asked to pay huge legal expenses of the respondent. This he said would be totally unfair and unjust. He said that to award the respondent costs in the amount sought may operate to prevent a person from complaining about harassment or discrimination at the workplace in future and may allow an employer to harass and discriminate.

Consideration

34. As noted by the Court of Appeal in AT [2010], at [21], subs 88(1A) requires that the Tribunal to be “satisfied” that the proposed award is “fair”. The Court also noted that this exercise “involves, potentially, both findings of primary fact and the exercise of an evaluative judgment.”

35. What must be determined is whether, having regard to the matters in subs 88(1A) (including nature of the proceedings and the objects of the Administrative Decisions Tribunal Act), the circumstances are such that we are satisfied that it is “fair” to depart from the general rule that each party pay its own costs and make an order that the applicant pay the respondent’s cost of the proceedings or part thereof.

36. In our view there is no jurisdiction in these proceedings, for the Tribunal, to consider an application for costs in regard to the complaints that were the subject of the interlocutory decision of Deputy President, Magistrate Hennessy. As we noted in Loke [2013] at [7], these complaints were transferred by the Anti-Discrimination Board, some months prior to the complaints that were before us and they were transferred under section 93A of the Anti-Discrimination Act, which required the leave of the Tribunal before they could proceed. As noted by the respondent the applicant’s leave application in the interlocutory decision was refused on 27 December 2013 The decision of Deputy President, Magistrate Hennessy in effect terminated the Tribunal’s jurisdiction in regard to those complaints. We note that there is no reference to the respondent having sought or made an application for costs during the course of those proceedings. The complaints which are the subject of this application did not require leave of the Tribunal and proceeded in the usual course, which included the respondent indicating that it sought an order for costs should the applicant’s complaints be dismissed. This does not mean that we can also deal with a cost application in regard to the proceedings before Deputy President, Magistrate Hennessy, which related to different complaints. The proceedings in regard to those complaints were finalised when Deputy President, Magistrate Hennessy made her decision to refuse leave for the complaints to proceed.

34. In regard to the proceedings before us, we make the following findings in so far as they relate to the matters in subs 88(1A(a) to (e).

Has the applicant conducted the proceedings in a way that unnecessarily disadvantaged the respondent?

38. We accept that the applicant failed to adequately particularise his claim and allegations prior to the hearing and that he continued to file material during the course of the hearing. In our view, this was due to the applicant’s lack of legal representation and his lack of understanding of the provisions in the Anti-Discrimination Act, notwithstanding the very clear outline of the relevant provisions that were provided by Deputy President, Magistrate Hennessy. We appreciate the onus was on him to particularise his claim. In our view, while the claim was not particularised in a manner accepted in a more formal forum, the applicant had adequately described the nature of his claim in the complaints he had made to the Anti-Discrimination Board that were referred to the Tribunal. This included his claim in respect to the class video footage he had prepared. The respondent filed its evidence in response to these claims and while aspects of the applicant’s claim were not pressed, his substantive claims (including the claims in regard to the alleged racist remarks) continued to be pressed at the hearing. The respondent’s witnesses all gave evidence relevant to these and the applicant was entitled to cross examine them. Again, not having any legal training the applicant had some difficulty in doing so.

Did the applicant unreasonably prolong the time taken to complete the hearing?

39. We agree the proceedings were protracted. Again, this was primarily due to the applicant’s lack of legal representation and his lack of understanding of the provisions in the Anti-Discrimination Act.

40. The respondent, we note, consented to the two days of hearing in May 2014 and did not object to the adjourned day of hearing on 6 August 2014. One of the reasons for the adjourned day of hearing was that the applicant had not cross-examined the respondent’s witness, Ms Ramadan.

41. At the commencement of the hearing the respondent also consented to two further complaints of discrimination being pressed by the applicant (see Loke [2015] at [25]).

42. We are not critical of the respondent in agreeing to the two days of hearing and not objecting to the further day of hearing or its consent to the two further complaints. This was undoubtedly done in recognition of the applicant being unrepresented.

43. The applicant’s inability to particularise his claim in the context of ss 7 and 8 of the AD Act certainly prolonged the hearing and the finalisation of the matter. However, he had a right to present his case as best could within the time allocated to hear the matter.

Did the applicant’s claim have no tenable basis in fact or law?

44. We accept that the applicant’s claims were not strong. As noted by Deputy President, Magistrate Hennessy, the differential treatment test in a direct discrimination claim can be difficult to establish in the absence of any evidence of an actual comparator: see Loke [2013] at [22] and [23]. While the applicant did not have evidence of an actual comparator, in our view, it cannot be said that his claims had absolutely no tenable basis in fact or law.

45. Nor do we find that they were vexatious, misconceived and lacking in substance. Had this been the case, the respondent would undoubtedly have made a dismissal application at the time of the commencement of the hearing.

46. As we have noted, there were aspects of his claim which the applicant did not press at the hearing. But his substantive claims were pressed, including the claims in regard to the alleged racist remarks. The fact that the applicant did not succeed in these claims does not mean that they had no tenable basis in fact or law. Nor is it a basis on which to make an award of costs.

47. The respondent’s witnesses all gave evidence relevant to the applicant’s claims and the applicant was entitled to cross examine them. His skill in doing so was poor, but this does not mean his claim had no tenable basis or that they had been made vexatiously or were misconceived or lacking in substance.

Other matters

48. The respondent’s Calderbank letter was sent to the applicant after the second day of hearing while it referred to the applicant’s complaints being misconceived and lacking in substance. The offer was open for 10 days and was essentially an offer to capitulate without being faced with a possible cost order.

49. In our view, leaving aside the question as to whether the terms of the offer fell within the principles of Calderbank v Calderbank [1975], it was not unreasonable for the applicant to reject the offer. His claim was part heard and he had not cross-examined one of the respondent’s main witnesses, Ms Ramadan and the respondent had not specified the manner in which his claim was misconceived and lacked substance.

50. As we have noted, the proceedings arose under the Anti-Discrimination Act, which forms part of the Tribunal’s human right jurisdiction. The Tribunal has previously said that costs should not be too readily awarding against unrepresented unsuccessful applicants in a jurisdiction which seeks to protect and promote the observance such rights: see Tu, at [39]. .

Conclusions and Order

51. For the reasons set out above, we accept the respondent was disadvantaged to some extend and the proceedings were prolonged by reason of the manner in which the applicant prosecuted his claim before the Tribunal. We are not persuaded the applicant’s conduct was such to warrant a departure from the general rule that each party pay its own costs. That is, having regard to all the circumstances in this application we are not satisfied that it is fair to make an award of costs in favour of the respondent. This does not mean that a cost order cannot be made against an unrepresented applicant. This, as s 88 provides, will depend on the circumstances of each individual case.

52. Accordingly, we order:

The respondent’s application for costs is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 October 2015