LYNCH and COMMISSIONER OF POLICE
[2016] WASAT 8 (S)
•14 DECEMBER 2016
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| ACT | : | EQUAL OPPORTUNITY ACT 1984 (WA) |
| CITATION | : | LYNCH and COMMISSIONER OF POLICE [2016] WASAT 8 (S) |
| MEMBER | : | MR M SPILLANE (SENIOR MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 14 DECEMBER 2016 |
| FILE NO/S | : | EOA 29 of 2014 |
| BETWEEN | : MARK ANDREW LYNCH |
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Equal Opportunity Act 1984 (WA) - Costs - Extension of time
Legislation:
Equal Opportunity Act 1984 (WA), s 89, s 90
State Administrative Tribunal Act 2004 (WA), s 9, s 32, s 47, s 60(2), s 87, s 89,
s 92(1)(a)
State Administrative Tribunal Rules 2004 (WA), r 42A, r 46
Result:
Application for costs dismissed
[2016] WASAT 8 (S)
Summary of Tribunal's decision:
This matter related to an application for costs by the Commissioner of Police against Mr Lynch who had been unsuccessful following a three day hearing at the Tribunal in November 2015, in respect of a claim that he had been the subject of discrimination on the ground of impairment when a decision was made to transfer him from Fremantle Prosecuting to Perth Prosecuting in March 2014.
The Tribunal had delivered its decision in the substantive matter on 10 February 2016 and on 6 May 2016 received a request from the respondent to bring the matter back on to determine an application for costs.
Following written submissions by both parties the matter was determined
on the documents.
Pursuant to r 42A of the State Administrative Tribunal Rules 2004 (WA), an application for costs can be made within 21 days of the orders in the substantive matter and as the application in this matter was received well outside that time the Tribunal had first to determine whether an extension of time should be granted and secondly whether the Commissioner should be awarded costs.
Having considered the length of the delay and the reasons for the delay the Tribunal, albeit reluctantly, agreed to extend time.
In respect of the application for costs itself, the Tribunal found that the applicant had not acted so unreasonably in the way he had conducted the proceedings to alter the presumptive position of costs in the Tribunal that each party should bear their own and the application for costs was dismissed.
Category: B
Representation:
Counsel:
| Applicant | : | Mr R Yates |
| Respondent | : | Mr D Leigh |
Solicitors:
| Applicant | : | Tindall Gask Bentley Lawyers |
| Respondent | : | State Solicitor's Office |
[2016] WASAT 8 (S)
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training
[2006] WASAT 248
Commissioner for Equal Opportunity and Alcoa of Australia Ltd
[2007] WASAT 317
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Laurent and Commissioner of Police [2009] WASAT 254
Lynch and Commissioner of Police [2016] WASAT 8
O'Connor and Town of Victoria Park [2005] WASAT 161
Smith and Palace Nominees Pty Ltd t/as Joe Crisafio Kia [2016] WASAT 12 (S)
Soelberg (formerly van Droffelaar) and Commissioner of Police
[2008] WASAT 305 (S)
| Springmist | Pty | Ltd | and | Shire | of | Augusta-Margaret | River |
(2005) 41 SR (WA) 207; [2005] WASAT 143 (S)
Summerville and Department of Education & Training & Ors
[2006] WASAT 368 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd
[2016] WASCA 32
[2016] WASAT 8 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Background
Mr Mark Andrew Lynch (applicant) is an experienced police officer and police prosecutor having been appointed as a police officer in 1979. The applicant sustained a back injury whilst on duty on 15 January 2003 and since February 2003 he has been non-operational as a police officer and worked solely as a police prosecutor.
2 On 6 May 2014, the applicant lodged a complaint with the
Commissioner for Equal Opportunity (EO Commissioner) claiming that he had been the subject of direct discrimination on the ground of impairment by the Commissioner of Police (respondent) when a decision was made to transfer him from Fremantle Prosecuting to Perth Prosecuting on 10 March 2014.
3 On 4 September 2014, pursuant to s 89 of the Equal Opportunity Act 1984 (WA) (EO Act), the EO Commissioner dismissed the applicant's complaint on the basis it was lacking in substance and advised him of his right to request a referral to the Tribunal under s 90 of the EO Act, following which the applicant made such a request and the EO Commissioner referred the matter to this Tribunal.
4 During the course of the proceedings in the Tribunal the respondent
made an application to strike out the application on the basis that the
applicant's case was, in effect, lacking in substance.
On 6 July 2015, the Tribunal refused to grant that application and
stated:
… although sympathetic to the application made by the respondent and
agreeing with many of the points raised, the issue of the correct comparator may be affected by facts yet to be put before the tribunal, but a decision on the issue being a mixed issue of law and fact, and therefore the tribunal is not at this time prepared to make a final finding that the applicant's case is entirely untenable, misconceived, or lacking in substance without hearing all of the evidence. (T:47; 06.07.15)
The Tribunal then went on to comment to the applicant:
In the present case, the Commission has already found these allegations to be without substance, and the tribunal is troubled by the case being run by Sergeant Lynch, and although not presently at the point where the tribunal is satisfied on the evidence before it to make a final finding that the claim is misconceived or lacking in substance, the applicant will need to
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seriously consider whether he wishes to put the respondent to the costs of preparing for and undertaking a final hearing where the applicant may be at real risk of being responsible for the respondent's costs, if after hearing all of the evidence at final hearing the tribunal decides the applicant's cases is in fact without substance. (T:49; 06.07.15)
7 The Tribunal conducted a final hearing in the matter over three days
on 11, 12 and 13 November 2015, when at the close of the applicant's case the respondent again made an application pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the guise of a 'no case' submission.
8 On 12 November 2015, the Tribunal refused to grant that second
application and delivered oral reasons in largely similar terms to the reasons given on 6 July 2016 which relied on the decision of the Tribunal in Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [20]. The hearing proceeded with the respondent's case on 12 November 2015 and concluded on 13 November 2015.
9 Two significant points of difference arose between the parties as to
the facts. Firstly, concerning the reason for the transfer of the applicant from Fremantle Prosecuting to Perth Prosecuting and secondly, whether the applicant should be considered to be full-time or part-time at the time of the decision to transfer (a fact which affected the Tribunal's determination of the correct comparator).
10 On 10 February 2016, the Tribunal delivered written reasons
dismissing the applicant's complaint: Lynch and Commissioner of Police
[2016] WASAT 8 (Lynch).11 The Tribunal found that the applicant was not transferred because of
his impairment, being his back injury. The Tribunal did find that the applicant was transferred in part because he was part-time however, being part-time was not his impairment. Therefore, as the Tribunal found that the applicant was not transferred even partly because of his impairment, it could not be said that he was treated less favourably on the basis of that impairment, or that another experienced prosecutor who worked part-time without the impairment would not have been transferred.
12 The Tribunal found that the appropriate comparator in this case was
an experienced part-time prosecutor without the impairment. The Tribunal determined that the application of the comparator did not establish differential treatment and, related to that, causation also could not be established in that the applicant had not been treated less
[2016] WASAT 8 (S)
favourably because of his impairment. The Tribunal found that the comparator would have also been transferred to Perth Prosecuting as that skill set was required elsewhere in Western Australia Police. Therefore, unlawful discrimination could not be established by the applicant.
In relation to the issue of assessing witness credibility and reliability the Tribunal found in Lynch at [38] - [41]:
It is the Tribunal's view, in particular in relation to the reasons why the applicant was transferred, that the Tribunal cannot rely on the applicant's evidence. Firstly, it was not the applicant who made the decision, and secondly, the Tribunal, as explained further below, prefers the evidence of Inspector Williams and Superintendent Porter rather than the evidence of the applicant.
Inspector Williams and Superintendent Porter are both retired police officers and there was no indication in the Tribunal's view that either of them were seeking to align their evidence with the respondent's position. They were both honest and forthright witnesses. Their evidence was generally consistent with one another on the issues for determination before the Tribunal. Though the Tribunal noted some points of difference due to slightly different recollections and to the passage of time, as well as the fact they are both now retired and prepared their witness statements largely utilising their independent recollection, the Tribunal considers those differences (except as stated below) to be of no significance to the Tribunal's decision. Indeed, the small differences in their evidence indicate that they have not colluded in any way. Most notably, the evidence of both Superintendent Porter and Inspector Williams were tellingly inconsistent with the applicant as to the reasons for his move.
It is the Tribunal's view that the applicant has a perception of his treatment, in particular in relation to the decision to transfer him to Perth Prosecuting, that is incorrect and without proper factual foundation. This incorrect perception influences his evidence to such a significant extent that the Tribunal is of the view that his evidence is unreliable in many respects. Where there are any inconsistencies between the evidence of the applicant and the evidence of Inspector Williams and Superintendent Porter, the Tribunal prefers the latter two witnesses.
The Tribunal finds that the times that the applicant claims that Inspector Williams told him certain things regarding the reasons for the transfer - namely, 13 and 24 January 2014 and a third undated occasion - either did not occur at all or did not occur in the way that the applicant has framed these comments by Inspector Williams. The Tribunal does not accept the applicant's explanation as to why, when he was meticulous in recording conversations and reporting these to management, he did not advise Assistant Commissioner Panaia of these conversations. The Tribunal accepts the evidence of Inspector Williams as
[2016] WASAT 8 (S)
to these conversations (though only the first two conversations were put to
him in cross-examination) and does not accept the applicant's evidence.
Respondent's costs application
14 On 6 May 2016, the respondent advised the Tribunal by letter that
the parties had liaised without success in relation to payment of costs and wished to have the matter brought back on to determine an application for costs by the respondent. On 11 May 2016, the respondent filed submissions and an affidavit in support of that costs application.
15 As the application for costs was brought almost three months after
the decision of the Tribunal in the substantive matter, the Tribunal ordered the respondent to file and serve further evidence explaining the reasons for the delay in making that application. The respondent provided a further affidavit on 24 May 2016.
16 In accordance with programming orders made on 17 May 2016, the
applicant provided written submissions opposing the application for costs
on 7 June 2016 and the respondent filed its reply on 16 June 2016.17 The Tribunal determined that following receipt of the further
affidavit and the submissions from the parties, it would determine the respondent's application entirely on the documents pursuant to s 60(2) of the SAT Act.
Respondent's submissions
18 The respondent submits that an extension of time to make the costs
application should be granted because a sufficient explanation for the delay has been provided. Further, there is no prejudice to the applicant as he has known since November 2015 of the respondent's intention to seek costs. Finally, the respondent submits the extension should be granted because the application for costs has strong prospects of success.
The respondent submits that the applicant should pay the respondent's costs of the proceedings for the following reasons:
a)
At all times during the proceedings the applicant has been legally represented;
b)
On 4 September 2014, the applicant was put on notice by the EO Commissioner that his complaint lacked substance;
[2016] WASAT 8 (S)
c) On 6 July 2015, the applicant was made aware that the Tribunal was 'troubled' by his case and was also put on notice by the Tribunal as to the 'real risk of being responsible for the respondent's costs'; d) From at least 6 July 2015, the applicant has acted unreasonably in maintaining the proceedings; e) The applicant had a number of opportunities to decide not to press his claims against the respondent or seek to alter or augment his case after being put on notice as to the deficiencies in his case; and f) On 10 February 2016, the applicant's complaint was dismissed for essentially the same reasons the respondent applied for 'summary judgment' and then made a 'no case submission'.
The respondent seeks costs in the amount of $28,000.00. This amount represents costs incurred by the respondent from 6 July 2015 to 13 November 2013 (excluding the costs of the unsuccessful 'no case to answer' submission).
Applicant's submissions
21 The applicant opposes an extension of time and submits that the
respondent has not provided a reasonable excuse for the delay. The applicant further submits that the requirement to make an application for costs within 21 days are designed to give effect to one of the purposes of the SAT Act in s 9, that is to act as speedily as practicable.
22 The applicant opposes an order that he pay any of the respondent's
costs. The applicant submits that the circumstances of the case do not warrant a departure from the Tribunal's usual practice of not awarding costs.
Extension of time
23 Pursuant to r 42A of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), an application for costs can be made within 21 days of the orders being made by the Tribunal to which the application relates. The respondent did not make an application within 21 days of 10 February 2015, the date the Tribunal made an order dismissing the claim.
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24 Section 92(1)(a) of the SAT Act states that the SAT Rules may
provide for the Tribunal to extend or abridge a time limit for doing anything in connection with a proceeding or waive compliance with any procedural requirement. Rule 46 of the SAT Rules provides that the Tribunal may dispense with compliance with a requirement of a rule. This discretion is to be exercised by the Tribunal having regard to the circumstances of the case. Informing the exercise of that discretion are the oft quoted four factors relevant to an extension of time in commencing an appeal: the length of the delay; the reasons for the delay; whether there is an arguable case; and the extent of any prejudice to the other party: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as cited with approval by the Tribunal in O'Connor and Town of Victoria Park [2005] WASAT 161.
The following facts can be gleaned from the two affidavits provided by the respondent in support of the application:
a)
On 10 February 2016, the order dismissing the claim and the reasons for decision of the Tribunal were published;
b)
On 12 February 2016, the respondent's solicitors sought instructions regarding an application for costs and these instructions were provided on 24 February 2016;
c)
On 2 March 2016, the time limit of within 21 days of the orders being made under r 42A of the SAT Rules expired;
d)
On 8 March 2016, the respondent instructed his solicitor's to delay writing to the applicant until the respondent had consulted with the WA Police Union;
e)
On 11 March 2016, the respondent's solicitors had prepared a schedule of costs;
f)
On 22 March 2016, the respondent wrote to the WA Police Union;
g)
Between around 22 March and 12 April 2016, the respondent's solicitor was unable to seek counsel's views on the draft letter to the applicant regarding costs as he was occupied in a three week prosecution;
h)
On 13 April 2016, a draft letter was sent to the respondent and then upon instructions being immediately obtained
[2016] WASAT 8 (S)
was sent that same day to the applicant's lawyers seeking
a compromise of the respondent's costs;i) On 17 April 2016, the applicant responded indicating that he was not prepared to pay any of the respondent's costs;
j) On 6 May 2016, the respondent's solicitor wrote to the Tribunal seeking to have the matter brought back on to determine a costs application; k) It was only whilst junior counsel was preparing the submissions in support of the costs application that the respondent's solicitor became aware of the time limit in r 42A of the SAT Rules; and l) On 10 May 2016, the respondent lodged its submissions and first affidavit in support of the application.
26 Rule 42A of the SAT Rules informs the Tribunal in considering the
length of the delay. The respondent took three months to make a relatively simple application. The Tribunal agrees with the applicant's submission that r 42A which provides that an application for costs can be made within 21 days of the order is designed to give effect to one of the purposes of the SAT Act in s 9, that is to act as speedily as practicable.
27 However, one has to examine the reasons for the delay and in the
present case there are a number of reasons. For instance, one month to prepare a one page schedule of costs and three weeks for counsel's approval before sending a letter to the applicant in an effort to compromise costs. Those two factors alone explain most of the delay.
28 The Tribunal notes however that just like the respondent, the
applicant has been aware from an early stage that the respondent intended
to make an application for costs.29 The applicant therefore does not and cannot, given the history, claim
any prejudice for the delay and the application for costs in the circumstances is not of itself without merit, and in the Tribunal's view when considering leave to extend time, constitutes an arguable application.
30 Therefore having considered the length of the delay and the reasons
for the delay as well as s 9 of the SAT Act and the hearing of the matter
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generally, the Tribunal agrees albeit reluctantly to grant leave to extend
time.
Costs principles
31 The principles to be applied in a costs application made under s 87 of
the SAT Act are not in dispute between the parties. The presumption in proceedings under the EO Act and s 87(1) of the SAT Act, is that each party bear their own costs.
32 However, with that presumptive starting point in mind, pursuant to
s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all or any of the costs of another party. In the recent decision of the Court of Appeal in
Western Australian Planning Commission v Questdale Holdings Pty Ltd
[2016] WASCA 32 (Questdale), Murphy JA (Martin CJ and Corboy J
agreeing) found at [51]:Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour. [footnotes omitted]
33 The power to make a costs order includes the power under s 87(3) of
the SAT Act to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal: Springmist Pty Ltd and Shire of Augusta-Margaret River (2005) 41 SR (WA) 207; [2005] WASAT 143 (S) at [64]. Pursuant to s 89 of the SAT Act, where the Tribunal makes a costs order it may fix the amount of costs.
34 The Tribunal's practice in proceedings under the EO Act is to start
from the presumption that there is no order as to costs and not to make an
order for costs:… unless a party has conducted itself in such a way as to unnecessarily
prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in
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some other way constitute an abuse of process. The Tribunal might also make an order for costs where a matter has been brought vexatiously or for improper purposes.
Chew and Director General of the Department of Education and
Training [2006] WASAT 248 (Chew) at [85] as cited in Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S) (Summerville) at [26] and Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317 at [47].
35 The remarks in Chew were made in a context that the particular circumstances where costs might be awarded are not enumerated in s 87(2) of the SAT Act. Therefore, it would not be appropriate for the Tribunal to seek to finally delineate the particular circumstances in which the discretion to award costs will be exercised: Summerville at [27].
36 In Smith and Palace Nominees Pty Ltd t/as Joe Crisafio Kia [2016] WASAT 12 (S) (Palace Nominees) at [19] - [20] the Tribunal considered whether the recent decision of the Court of Appeal in Questdale, which reminded the Tribunal of the dangers of attaching any special tests or 'rules' to the 'no costs' presumption in respect of particular areas of the Tribunal's work, affected the Tribunal's practice in proceedings under the EO Act. The Tribunal concluded in Palace Nominees that there was nothing in what the Court of Appeal had found in Questdale that precluded, for example, consideration of the special role that the EO Commissioner has to play in dealing with complaints under EO Act. Thus the observation of the Tribunal in Summerville at [52] would appear still to be relevant:
In my view, parties who require their complaints to be transferred to the Tribunal by the Commissioner for Equal Opportunity in circumstances where the Commissioner has already found those allegations to be without substance, should not be entitled to maintain proceedings that do not have any reasonable chance of success without being at risk of a costs order being made against them.
Consideration
37 Section 87(1) of the SAT Act creates a presumption in this
jurisdiction that, unless an enabling Act provides otherwise (which the EO Act does not), each party bear their own costs. The Tribunal considers that although Mr Lynch maintained a weak case, which was ultimately found to be based on his genuinely held but distorted view of events, it is not of itself enough to convince the Tribunal that it should exercise its discretion to award costs.
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38 If a party runs a 'weak' case and is then ordered to pay the costs of
the opposing party for running such a weak case, the presumption of 'no costs' would be considerably undermined. Particularly in the circumstances such as the present case where the respondent failed on two occasions to convince the Tribunal that the applicant's case was misconceived or lacking in substance and should be dismissed or struck out pursuant to s 47 of the SAT Act.
39 The Tribunal considers that there is a distinction between a
'weak case' such as this one, and one that was referred to in Summerville as being 'so weak' or based on a 'flimsy premise' that it was found that it should not have been maintained: Summerville at [36].
40 It is noted that the Tribunal, when determining each of the
respondent's applications under s 47 of the SAT Act on 6 July 2015 and during the hearing on 12 December 2015, warned the applicant that, whilst the Tribunal was not convinced that the proceedings should be dismissed or struck out at that stage of the proceeding, there may be costs implications for the applicant if the matter proceeded and he was ultimately found to be entirely unsuccessful.
41 There is nothing untoward in the Tribunal, when called upon to
exercise some determination as to the strength or weakness of a case such as under s 47 of the SAT Act, to sound such a warning to an applicant. Indeed, the Tribunal is discharging its obligations under the SAT Act, (ss 9 and 32), in doing so. However, such a warning is not, and nor is the respondent alleging, determinative of the costs outcome in a proceeding.
42 The respondent submits that the applicant's complaint was dismissed
for essentially the same reasons that prompted the respondent to make an application for 'summary judgment' and a submission of 'no case to answer', those reasons being that the appropriate comparator was an experienced part-time police prosecutor with a back injury. The respondent submits further that it is not the case that the final decision of the Tribunal required the assessment of evidence adduced at the hearing, in other words, the proceedings should never have been maintained because there really was 'no case to answer'.
43 The Tribunal notes that in its reasons not to dismiss or strike out the
matter pursuant to s 47 of the SAT Act, on both occasions the Tribunal referred to the reasons of Pritchard J (as she then was) in Laurent where at [20] she stated:
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… If there is a serious question of fact to be determined, or if factual issues
are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and cross-examination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged[.]
44 The decision of the Tribunal in Summerville provides a useful comparison to the present case. Summerville is similar to the present proceedings in circumstances that the EO Commissioner also dismissed the claim as lacking in substance, and the Tribunal also did not allow an application to strike the matter out as the Tribunal considered the matter would be best resolved at hearing given the mixed questions of fact and law.
45 Where the present case departs from Summerville and can be distinguished is that Mr Lynch was represented and should be assumed, without evidence to the contrary, to have sought and considered legal advice following the Tribunal's comments on 6 July 2015. Secondly, the findings in relation to the credibility of Ms Summerville as a witness are far more concerning than the findings made by the Tribunal regarding Mr Lynch in the present proceedings: see Summerville at [2], [7], [15], [37] and [52] and also see Soelberg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305 (S) (Soelberg) at [39] - [40]. In short, the unreasonable behaviour of the applicants in Summerville and Soelberg in the way that those proceedings were conducted appears to be substantially different to the behaviour of the applicant in these proceedings, such that the Tribunal does not consider that the Tribunal's presumptive position of each party bear their own costs should be altered in this case.
46 Accordingly, the Tribunal finds that the applicant has not acted
unreasonably in the way that he has conducted these proceedings, or in any of the ways described in Chew as set out above, such that the Tribunal would exercise its discretion to award any costs to the respondent under s 87(2) of the SAT Act.
| Orders |
| In accordance with these reasons, the Tribunal makes the following order: |
1. The respondent's application for costs is dismissed.
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I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, SENIOR MEMBER
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