Margan v Taufaao (No. 2)

[2017] NSWCATAD 246

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Margan v Taufaao (No. 2) [2017] NSWCATAD 246
Hearing dates:	On Papers
Date of orders:	10 August 2017
Decision date:	10 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member Dr M Murray, General Member
Decision:	The Respondent, Mr Taufaao, is to pay the Applicant Mr Margan the sum of $250 in costs within 21 days of the publication of this decision.
Catchwords:	Costs
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 Margan v Taufaao [2017] NSWCATAD 216 Shandil v Animal Welfare League NSW [2013] NSWADT 15
Category:	Costs
Parties:	David Margan (Applicant) Paul Taufaao (Respondent)
Representation:	Self-represented (Applicant) No appearance (Respondent)
File Number(s):	2015/00383313

REASONS FOR DECISION

1. On 30 June 2017, the Tribunal published a decision in which it found Mr Taufaao had unlawfully vilified Mr Margan on the ground of his homosexuality in an assault at ARQ nightclub, Darlinghurst on the morning of 15 September 2014. See Margan v Taufaao [2017] NSWCATAD 216

2. The Tribunal ordered that Mr Taufaao pay Mr Margan the sum of $10,000 as compensation for the harm caused to him by the assault and the publication of vilifying statements within 21 days of the publication of the decision.

3. At the conclusion of the hearing on 17 March 2017, Mr Margan asked the Tribunal to order that Mr Taufaao pay him the costs of bringing the action to the Tribunal.

4. Mr Taufaao had not participated in any of the Tribunal’s processes. The Tribunal had decided to proceed with the hearing on 20 January and 17 March 2017 in Mr Taufaao’s absence. The Tribunal was satisfied that the date of the hearing had been brought to Mr Taufaao’s attention by post. Mr Taufaao had also communicated with Mr Margan via Facebook about the proceedings.

5. In its decision of 30 June 2017, the Tribunal directed that the Respondent, Mr Taufaao provide submissions on Mr Margan’s applications for costs. Any submissions were to be provided to the Tribunal and Mr Margan by 14 July 2017. The Tribunal would then determine Mr Margan’s application for costs on the papers after that date.

6. As at 24 July 2017, no submissions had been received from Mr Taufaao.

Application for costs

7. Mr Margan made the following submissions in relation to costs.

8. The Respondent had previously rejected any attempt to negotiate a conciliation on the matter, including any sort of consented version of an apology. In consideration of the Respondent’s unwillingness to take part in the Tribunal proceedings and the Respondent’s unwillingness to engage with the process of an apology, we feel we should reiterate the need for costs to be awarded in our favour regardless of the result of the hearing. We incurred some administrative costs in undertaking this complaint. These have included the original trial court hearing transcript, subpoenas associated with obtaining an accurate service address for the Respondent and miscellaneous costs associated with printing and sending materials necessary for the complaint. The total costs of these expenses would now amount to no more than $250.

The Tribunal’s power to award costs

Costs provisions, section 60 Civil and Administrative Tribunal Act 2013, (CATA)

9. The relevant provisions dealing with the awarding of costs are set out in section 60 of the CATA. The general rule is that each party to proceedings is to bear their own costs: CATA s 60(1).

10. Costs may only be awarded if the Tribunal is satisfied that there are special circumstances warranting the award of costs: CATA s 60(2) - having regard to the matters set out in s 60(3) (a)-(g) of CATA.

11. The Tribunal sets out these matters below.

Section 60

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may:

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

Procedural history

Complaint to ADB

12. On 29 September 2014, Mr Margan complained to the Anti-Discrimination Board. In his complaint, he alleged that Mr Taufaao had engaged in unlawful homosexual vilification under section 49ZT of the Anti-Discrimination Act 1977. On 13 October 2014, Mr Margan sent further information to the Anti-Discrimination Board regarding his allegations.

13. On 14 July 2015, pursuant to section 90B (5) of the Anti-Discrimination Act 1977, the President referred the complaint of unlawful homosexual vilification to the Tribunal.

Referral of Complaint to the Tribunal

14. When the matter came to the Tribunal, the Tribunal wrote to Mr Taufaao at an address in Rutherford on 29 July 2015, 27 August 2015, 27 January 2016, 21 April 2016.

15. On 11 August 2016, the Tribunal wrote to Mr Taufaao at an address in Argenton advising of a case conference on Wednesday 7 September 2016.

16. Mr Taufaao did not appear at any of the Tribunal’s scheduled case conferences.

17. A person purporting to be Mr Taufaao telephoned the Tribunal on 22 August 2016. He spoke to a registry staff member and asked what was going to be happening on 7 September 2016. Mr Taufaao told the staff member that he had been receiving the relevant mail at his sister’s address. A person purporting to be Mr Taufaao again rang the Tribunal on the 14 September 2016 and spoke to the same staff member. He again asked what would be happening in the Tribunal on 19 October 2016. The staff member asked Mr Taufaao to provide his current address. Mr Taufaao swore at the staff member and the conversation finished.

18. The Tribunal notes that the Registry wrote to Mr Taufaao on November 2016 to the address at Argenton and again on Monday, 16 January 2017 to advise of the hearing for Friday the January 2017.

19. At the hearing, Mr Margan told the Tribunal that he had contact with Mr Taufaao on Facebook about the complaint and the hearing.

Tribunal’s consideration of whether “special circumstances” exist

20. The Tribunal must be satisfied that special circumstances exist warranting departure from the rule that parties pay their own costs in the Tribunal.

21. The Tribunal sets out below an analysis of the factors set out in section 60(3) (a)-(g).

60 (3) (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

22. Mr Taufaao chose not to participate in the Tribunal’s proceedings. In this sense, he did not “conduct the proceedings”.

Did the Respondent unreasonably prolong the time taken to complete the proceedings in terms of section 60(3) (b) of CATA?

23. The Tribunal notes that Mr Taufaao did not acknowledge the proceedings until he contacted the Tribunal registry in August 2016, a year after the matter had been referred to the Tribunal by the President of the ADB. In the intervening period, case conferences had been scheduled and re-scheduled because Mr Taufaao did not attend, at cost to the Tribunal and Mr Margan. Mr Margan sought the issue of Local Court transcript and summonses to the police and the courts to verify Mr Taufaao’s address - again at cost to Mr Margan and to the Tribunal. The Tribunal was required to re-schedule case conferences to progress the matter. The Tribunal is satisfied that Mr Taufaao’s behaviour unnecessarily prolonged completion of the proceedings.

Section 60 (3) (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3)

Section 36 of the CATA - Guiding Principle of Practice and Procedure in the Tribunal

24. Section 36 of CATA sets out the guiding principle to be applied to practice and procedure in NCAT with the Tribunal's bolding:

Section 36 Guiding principle to be applied to practice and procedure

(1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it:

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

Tribunal’s emphasis added.

25. The Tribunal's understanding of this section is that the parties have an obligation in their conduct to act with economy and to focus on the primary issues between the parties.

26. Mr Taufaao’s decision not to participate in the proceedings did not conform with the requirements of section 36(1) or 36 (3). It did not assist “the just, quick and cheap resolution of the issues” nor did he “comply with the Tribunal’s processes.”

27. In dealing with costs, the Tribunal has considered the interaction between the objects of the CATA in section 3, the guiding principles in section 36, and the special circumstances factors in section 60. The Tribunal notes that the Respondent, Mr Taufaao, chose not to participate in the proceedings. Mr Taufaao was advised in the Tribunal’s letters advising of case conferences, dates for filing of pleadings and hearing dates that the matter could be determined without him. The Tribunal is satisfied that Mr Taufaao was aware of the proceedings and chose not to participate. This had the effect of prolonging the proceedings.

Quantum of Costs

28. Section 60(5) defines costs as including costs of or incidental to "proceedings in the Tribunal".

29. In George v Commissioner of Police, NSW Police Force [2013] NSWADT 76, the ADT said that costs could only be awarded from the commencement of the proceedings in the Tribunal and that the administrative processes prior were not "proceedings".

30. In Shandil v Animal Welfare League NSW [2013] NSWADT 15 at paragraphs [16] and [17], Deputy President Hennessy said that it was unlikely that the Tribunal had power in respect of awarding costs for administrative proceedings prior to the commencement in the Tribunal. This Tribunal considers that processes in the ADB are not "proceedings in the Tribunal" and therefore costs cannot be awarded in respect of these. Further costs of proceedings in the ADB are not costs incidental to "proceedings in the Tribunal".

31. The Applicant told the Tribunal that his costs including seeking transcript of Local Court proceedings and issuing summonses to clarify the Respondent’s address, did not exceed $250. The Tribunal is satisfied Mr Margan sought to comply with the requirements of a party set out above in section 36 to ensure the “just, quick and cheap resolution” of the issues between the parties.

Decision

32. In the circumstances, the Tribunal is persuaded that special circumstances exist such that the Applicant should be awarded the costs of conducting these proceedings before the Tribunal.   

33. The Tribunal orders that Mr Taufaao pay Mr Margan the amount of $250 in costs within 21 days of the date of publication this decision.

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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: 10 August 2017