Maylor (No.2) v Mid North Coast Area Health Service

[2001] NSWADT 118

CITATION:	Maylor (No. 2) -v- Mid North Coast Area Health Service [2001] NSWADT 118
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lesley Maylor RESPONDENT Mid North Coast Area Health Service
FILE NUMBER:	001044
HEARING DATES:	18/04/2001, 19/04/2001
SUBMISSIONS CLOSED:	04/19/2001
DATE OF DECISION:	07/16/2001
BEFORE:	Britton A - Judicial Member; McDonald O - Member; Nemeth de Bikal L - Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Langley v University of NSW (1984) EOC 92-018 Ohn v Walton (1995) 36 NSWLR 77 Latoudis v Casey (1990) 170 CLR 534 Townsend v State Rail Authority [1999] NSWADT 104
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1. Application for costs is dismissed.

1 On 19 April 2001, this Tribunal dismissed the applicant’s complaints of disability discrimination, victimisation and part of the complainant relating to marital status pursuant to s111 of the Anti-Discrimination Act 1977 (the Act ).

2 On that day, the complainant was granted leave to discontinue that part of the application which had survived the dismissal of the rest of his complaint. It was consequently dismissed also.

3 The respondent now seeks an order for costs against the complainant.

Relevant legislation

4 Section 88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that, subject to the Tribunal’s own rules and any other legislation, costs will only be awarded “if [the Tribunal] is satisfied that there are special circumstances warranting an award of costs.”

5 This section must be read in conjunction with s 111(1) of the Act which provides, in summary, that the Tribunal may summarily dismiss a complaint it is satisfied is “frivolous, vexatious, misconceived or lacking in substance, or that for any other reason… should not be entertained.”

6 Section 111(2) provides that where a complaint is dismissed under s 111(1), the Tribunal may order the complainant to pay the respondent’s costs, notwithstanding the statutory presumption enshrined in s.114 of the Act that each party will bear its own costs.

7 It appears to us that the terms of s 88(1) of the Act are over-ridden by the terms of s 111 because s 88 states that the power to award costs is to be read down in accordance with the terms of other Acts. Section 111 therefore takes precedence over s88. Accordingly, it is unnecessary, in our view, for the respondent to demonstrate “special circumstances”, although it is, of course, arguable that a dismissal of a complaint under s 111 might give rise almost automatically to a presumption that there are special circumstances occasioning an award of costs. That, however, is an issue for another day.

The application of s 111(2)

8 The Tribunal has a wide discretion even under s 111(2). It is clearly Parliament’s intention that potential complainants not be discouraged from pursuing complaints by the threat of an award of costs, unless the pursuit of the complaint is so entirely unmeritorious that it ought never to have been brought in the first place.

9 Section 111(2) is statutory recognition of the fact that persons may feel aggrieved by some misperceived wrong, or may irrationally blame a blameless respondent for a real wrong done to them, or may not be willing to accept an adverse determination of a dispute, or for some other reason attempt to use the process of the Tribunal to advance an unmeritorious cause.

10 Respondents unjustly pursued and forced to defend themselves at significant cost have a general right to expect that the Tribunal will take appropriate action to compensate them for the reasonable and necessary costs of meeting the case mounted against them, and to deter vexatious, frivolous or unmeritorious complainants from further pursuing them.

11 In Langley v University of NSW (1984) EOC 92-018 at 75,468, Hutley J said:
“ In my opinion, the complaints in this case lacked any conceivable merit in fact of law. Under those circumstances my only criticism of the proceedings so far is that this was a case in which the complainant was not ordered to pay the costs by the Tribunal. That is the one effective sanction available to keep this Act within bounds and to ensure it will not be made the subject of gross abuse.”

12 (We have also been referred by the respondent to Ohn v Walton (1995) 36 NSWLR 77 and Latoudis v Casey (1990) 170 CLR 534. In our view, however, as they relate to the general principle that costs will be awarded to the successful party, they do not bear on the issue at hand.

The Submissions

13 The respondent submits that this case falls squarely within the category for which costs will be awarded under s 111(2) on the following grounds, which we paraphrase and summarise:
The complaints were dismissed because there was either no substance to the allegation made or the complaint was misconceived, and had been given legal advice that his complaint could not be substantiated. He, nonetheless, opted to pursue them in the Tribunal, fashioning evidence in an attempt to make out the complaints.
The complainant was tardy in complying with the Tribunal’s directions, and failing adequately to comply with the Tribunal’s procedures.
The complainant unreasonably refused to attempt to settle the matter by engaging in conciliation.
14 The complainant submits that s114 of the Act ought to be applied, ie that each party should bear its own costs. He submits that it is only where “gross abuse” is shown to have occurred that the Tribunal ought take the step of awarding costs against an unsuccessful complainant. To do otherwise would, he contends, undermine the “access objectives” of the Act . (See Townsend v State Rail Authority [1999] NSWADT 104 at paras 13 and 16 per President PK O’Connor DCJ.)

15 The complainant contends that there is no evidence of insincerity or male fides on his part, and that there was no “gross abuse” of the process of the Tribunal in bringing the action. He remains convinced that he was discriminated against and victimised, but was not able to present his case adequately, given his lack of legal representation.

16 He concedes that he had received legal advice that the matter was unsubstantiated ( except in relation to his complaint concerning marital status discrimination) but responds to the argument that this leads to the application of s 111(2) by saying that this was merely a preliminary advice tendered to him before he gained access to documentary evidence (minutes of meetings, correspondence, etc) which he hoped would fill the evidentiary gaps. The implication of this submission is that the cause was not a hopeless one from the outset pursued in the face of legal advice to desist, as represented by the respondent.

17 The complainant submits that, while the Tribunal dismissed his complaint concerning disability and victimisation pursuant to s 111 [on the basis that they were lacking in substance or misconceived], he would have been permitted to pursue his complaint of discrimination on the ground of marital discrimination, but opted not do so because he felt he could not overcome the substantial disadvantage he faced, being an unrepresented litigant.

18 If we understand this submission correctly, it is to the effect that the Tribunal’s summary dismissal of the marital status complaint followed his withdrawal of it, rather than on its own finding that the complaint was unmeritorious for one reason or another. On that basis, it seems, Mr Maylor argues the respondent would have had to meet at least that part of the case, and would not have been entitled to costs, had he pursued his action. We think it is implicit in his submission that there were therefore little or no costs thrown away.

19 In response to the accusation of tardiness, he outlined the facts that he had difficulties in complying with the directions of the Tribunal in part because of his solicitor’s negligence, and in part because of his own inability to cope with the procedures, given his lack of legal training.

20 He also claims that it is unfair to say that he unreasonably failed to attempt to conciliate the complaint. He is adamant that he “was open to resolution of the complaint by conciliation”.

Conclusions

21 In their attempts to make justice more accessible, governments throughout Australia over the last 25 years or so, have created a number of administrative tribunals. One of the features of what was known in the 1970s and 1980s as “the New Administrative Law” was the cost regime.

22 To encourage a resort to law, and to make government authorities more accountable to the citizens of Australia and the various States and Territories, many if not most administrative tribunals established on the model of the Commonwealth Administrative Appeals Tribunal generally expect the parties to bear their own costs. This is particularly so where the respondent party is usually a government authority.

23 Public interest considerations are very much part of the texture of all aspects of proceedings in this Tribunal, including applications for costs orders. Taking them into account, as well as the forceful arguments made on behalf of the respondent, we have a great deal of sympathy for the respondent’s position. This is a very finely balanced decision to make – we must consider both the protection of respondents from wasteful, time-consuming, misconceived crusades, but also access to justice and the “chilling effect” the too-ready ordering of costs against unsuccessful complainants, and Mr Maylor in particular, may have.

24 The public policy underlying such a divergence away from the time-honoured practice in courts is obvious. While a balance of interests has always to be struck, in these cases it is generally struck in favour of the citizen rather than the government authority. It is recognised, of course, that many complaints will ultimately not be substantiated or adequately established, the complainant bearing the onus of proof.

25 But it is also recognised that many, if not the great majority, of persons who bring actions complaining against government authorities are persons of very limited means. It is also recognised that many of them will be unrepresented, and face the full resources of government authorities with the capacity to obtain excellent legal advice and representation. The informality of procedures, and the removal of the disincentive of costs orders in the ordinary run of cases, are intended to introduce into the proceedings a measure of fairness and equality which is not generally to be found in traditional courts.

26 By the same token, it must also be recognised that there are many deserving calls on government agencies from the community, and that government resources are not unlimited nor to be squandered in ways which do not ultimately benefit the community. Not all calls on the government purse can be answered. Priority must be given to those needs which are the most pressing. The community cannot afford to offer any aggrieved person the unlimited opportunity to pursue any case irrespective of merit.

27 In such a tribunal as this it is necessary to be armed with the sanction of forcing an unsuccessful complainant who has burdened a respondent with the cost of a complaint which ought not to have been brought in the first place, to bear at least, the cost imposed on the unfortunate, innocent respondent dragged unwillingly into the proceedings.

28 Importantly this is not a case where the President had exercised his/her power pursuant to s 90(1) of the Act to decline to entertain the complaint/s on the grounds that s/he is satisfied that the complaint/s was “frivolous, vexatious, misconceived or lacking in substance, or that for any other reason … should not be entertained”. It could be argued that in this class of cases the complainant has effectively been put on notice that their complaint is unlikely to succeed and the Tribunal should take this into account in exercising its discretion pursuant to s111(2) of the Act.

29 In this case, while Mr Maylor’s complaints of discrimination on the ground of disability and victimisation, and one of his complaints of discrimination on the ground of marital status were dismissed summarily, it was open to Mr Maylor to continue with the remaining complaint alleging discrimination on the ground of marital status. It appeared to us that Mr Maylor abandoned this leg of his complaint as much, or perhaps more, out of a sense of frustration with the process he was having difficulty dealing with, he being unrepresented, as from a sense that his cause was destined to ultimate lack of success.
30 It follows therefore that at least a substantial part of the complainant’s case, had he proceeded with it, was likely to have been covered by s114 rather than s111(2) in relation to the question of costs. What proportion of the respondent’s costs can reasonably to be allocated to this aspect of the complaint, and what to those parts of the complaint were dismissed, is virtually impossible to determine.

31 Even if such an exercise can be carried out, the issue is whether the Tribunal ought, in the exercise of its discretion, do so. While granted the power to award costs in relation to what we have labelled generically “unmeritorious” complaints (by which we mean complaints of the type identified in s111(2)), the tribunal retains the ultimate discretion.

32 Unlike the courts, which have an analogous power to award indemnity costs in cases in which the unsuccessful party has added unreasonably to the cost of litigation, the Tribunal must take into account the general public policy of access to justice which we have discussed above. A summary dismissal of a complaint under s111(1) does not give rise to a virtually automatic costs order against a complainant.

33 Where a complainant is unrepresented, and has consequentially demonstrated some difficulty in presenting his or her case, we think that some indulgence must ultimately be given them in relation to the question of costs. This appears to be the tenor of the legislation. In our view, Mr Maylor, despite his evident intelligence and education, nonetheless was out of his depth when faced with the experience and skill of the respondent’s legal representation.

34 The respondent may complain with some justice that it ought not be penalised because it retained experienced counsel and the complainant did not. But, while accepting the force of such an argument, we do not see why a complainant without legal representation ought suffer the double handicap of facing a costs order on top of a forensic disadvantage if he collapses under the weight of the mounting pressure against him, provided always that there was in the first place a complaint with substance for the Tribunal to consider. That appears to us to be the reality in this case.

35 We accept that Mr Maylor’s complaints were brought without bad faith. We accept that it was due in part to his difficulties in relation to legal representation and in part due to his own lack of legal expertise that the proceedings were extended longer than ought to have been the case. We make allowances in regard to each of those matters.

36 For all these reasons, taking all the circumstances into account, we do not think that it is appropriate to make an order in favour of the respondent.

Order

37 The application for costs is dismissed.