Moylan v North Coast Area Health Service

[2005] NSWADT 175

CITATION:	Moylan v North Coast Area Health Service [2005] NSWADT 175
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Denise Moylan RESPONDENT North Coast Area Health Service
FILE NUMBER:	041150
HEARING DATES:	21/04/2005
SUBMISSIONS CLOSED:	06/02/2005
DATE OF DECISION:	08/03/2005
BEFORE:	Rees N - Judicial Member; O'Sullivan M - Non Judicial Member; Quayle C - Non Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Battenberg v The Union Club (No 3) [2005] NSWADT 126 Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35 Tu v University of Sydney (No 2) [2002] NSWADTAP 25
REPRESENTATION:	APPLICANT In person RESPONDENT R Weinstein, barrister
ORDERS:	1. Complaints dismissed; 2. Respondent’s application for costs dismissed.

Introduction

1 In this case the applicant, Ms Denise Moylan, made complaints of discrimination on the ground of race, on behalf of her children David Dungay and Carmel Moylan, against the respondent, the North Coast Area Health Service. The complaints relate to medical treatment given to both Carmel Moylan and David Dungay at the Kempsey Hospital in September 2002.

2 The complaints were heard by the Tribunal sitting at Kempsey on 21 April 2005. The applicant appeared in person without any legal representation. The respondent was represented by a barrister, Mr R Weinstein. The applicant rejected the Tribunal’s suggestion that she consider asking for an adjournment in order to inquire about the availability of some form of legal aid.

3 Late in the day on 21 April 2005, whilst a witness was being questioned, the applicant announced her intention to leave the court room in which the hearing was being conducted. This announcement was made following a direction to the applicant to leave the hearing room by a person who had earlier identified himself as “an elder”. The applicant, who is an Indigenous woman, informed the Tribunal that she felt obliged to follow this direction. The applicant was warned by the Tribunal that if she adopted this course the respondent may apply to the Tribunal for an order that the complaints be dismissed.

4 Despite this warning the applicant left the Tribunal. Mr Weinstein then applied for an order that the complaints be dismissed. The Tribunal dismissed the complaints. Mr Weinstein then made an application for costs. The Tribunal ordered that costs be reserved but granted the respondent leave to make a written application for costs within 28 days. The respondent subsequently filed and served an application for costs together with written submissions in support of that application.

5 In this document we record our reasons for dismissing the applicant’s complaints and for dismissing the respondent’s application for costs.

The complaints

6 It is unnecessary to describe the complaints in great detail as the Tribunal was not called upon to determine whether they had been substantiated after hearing evidence and arguments by both parties. By leaving the hearing room after she had been warned of the consequences of doing so, the applicant effectively abandoned her complaints before the Tribunal had the opportunity to complete its inquiry into those complaints.

7 On 4 December 2002 the applicant lodged a complaint with the President of the Anti-Discrimination Board (the ADB), on behalf of her son David (then aged 10 months), in which she alleged discrimination on the ground of race in the provision of goods and services (medical services) by the respondent (then called the Mid North Coast Area Health Service) to David at the Kempsey Hospital on 19 September 2002. On that day the applicant took David to Kempsey Hospital for assessment of a lump on his chest following a referral by the Durri Aboriginal Medical Service. After examination at Kempsey Hospital and an ultrasound, David was sent home.

8 The applicant took David back to Kempsey Hospital the following day because she felt that his condition had deteriorated. David was examined by a different doctor who gave him some medication but did not admit him to hospital. The applicant again returned to the Durri Aboriginal Medical Service and she was referred to the Port Macquarie Base Hospital. David was subsequently admitted to that hospital for treatment for four days.

9 On 4 March 2003 the applicant lodged a complaint with the President of the ADB, on behalf of her daughter Carmel (then aged two years), in which she alleged discrimination on the ground of race in the provision of goods and services (medical services) by the respondent (then called the Mid North Coast Area Health Service) to Carmel at the Kempsey Hospital on 4 September 2002. On that day, following a referral by the Durri Aboriginal Medical Service, a member of the applicant’s family took Carmel to Kempsey Hospital for treatment of a suspected fractured arm and a urinary tract infection.

10 Following examination by a doctor at Kempsey Hospital, Carmel was transferred to Port Macquarie Base Hospital for the treatment of her fractured arm. This was done because appropriate specialist services were available at the Port Macquarie Base Hospital. Due to an administrative error, the document which recorded that Carmel also suffered from a urinary tract infection was not forwarded to the Port Macquarie Base Hospital and Carmel was not treated for this condition.

11 The President’s report indicates that in October 2002 the Chief Executive Officer of the Kempsey Hospital admitted to the applicant in the presence of various people that mistakes had been made in relation to the treatment of both children. From the outset, however, the respondent has denied that the mistakes were the result of discrimination on the ground of race.

12 At the commencement of the hearing on 21 April 2005 counsel for the respondent, Mr Weinstein, tendered a document which read as follows:

1. The North Coast Area Health Service admits that it made a photocopy error when it did not copy one side of the notes of Carmel Moylan on 4 September 2002. As a result, a urinary tract infection was not picked up, as the missing page had further information which would have ensured that the infection was treated.

2. With the benefit of hindsight, North Coast Area Health Service admits that David Dungay ought to have been admitted to Kempsey Hospital when he presented on the second occasion on 20 September 2002.

13 Shortly after the hearing commenced a man who identified himself as an Aboriginal elder named Mr Worimi Dates was given permission by the Tribunal to sit with the applicant and to provide her with assistance during the presentation her case. On two occasions, whilst a witness was giving evidence, Mr Dates rose from his chair and made a speech, unrelated to the questions being asked of the witness, about the treatment of indigenous people in Australia with particular emphasis upon their treatment in Kempsey. On both occasions Mr Dates was asked by the Tribunal to sit down so that the examination of the witness could continue. On the second occasion Mr Dates was warned that he would be asked to leave if he continued to interrupt the hearing.

14 Shortly afterwards Mr Dates left the hearing room of his own volition. Some time later Mr Dates returned to the hearing room and again interrupted the proceedings. After being asked to be quiet Mr Dates announced that he was leaving. He then informed the applicant, in a manner which was audible to all present, that he was directing her “as an elder” to leave the hearing. After some discussion the applicant informed the Tribunal that she felt compelled to leave. She was warned by the Tribunal that if she left counsel for the respondent may make an application that her complaints be dismissed. Despite this warning the applicant collected her papers and left the hearing room.

15 Mr Weinstein then applied for the complaints to be dismissed. The Tribunal determined that it had no alternative other than to dismiss the complaints. By leaving the hearing room after the consequences of doing so had been explained to her, the applicant abandoned her complaints. Even though the case had been set down for hearing over two days it was not feasible to adjourn the proceedings to the following day. Mr Weinstein had earlier informed the Tribunal, in the presence of the applicant, that the respondent had brought two people from interstate to Kempsey on 21 April 2005 in order to give evidence in the proceedings. Their need to leave Kempsey on various flights had also been explained. It would not have been fair to the respondent to have adjourned the proceedings to the next day, or some later date, in the hope that the applicant would return.

Costs

16 The respondent filed and served an application for costs. The applicant did not file any material in response. In summary, the respondent submitted that the applicant should be ordered to pay the respondent’s costs because: (1) when the applicant abandoned the proceedings by leaving in the middle of evidence she knew or ought to have known that the respondent’s substantial legal costs and witnesses’ expenses were being thrown away and could have been otherwise expended on the provision of medical services, (2) the Tribunal’s resources were wasted as a result of the applicant abandoning her complaints and (3) “by abandoning the proceedings in the middle of the evidence, the applicant deprived each of the doctors [against whom the allegations of race discrimination were made] of the opportunity of facing their accuser, answering and explaining the allegations and rehabilitating their reputations”.

17 The respondent attached to its written submissions a document headed ‘Respondent’s Quantification of Costs’ in which it recorded its total costs at $33,230.14. Of this sum travel expenses comprised $3,986.07. The remaining costs were made up of legal fees and disbursements.

18 At the time of these proceedings the Tribunal’s relevant costs power was set out in s 114 of the Anti-Discrimination Act 1977 (the Act) which provided as follows:

(1) Except as provided by section 111(2) and subsection (2) each party to an inquiry shall pay his or her own costs.

(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it in doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

19 As is apparent, section 114 creates the presumption that each party should pay their own costs but it also grants the Tribunal a discretionary power to depart from that presumption when “there are circumstances that justify it doing so”. The legislation does not describe those “circumstances”, or otherwise assist the Tribunal in determining when its discretionary power to make a costs order should be exercised.

20 There are numerous first instance and Appeal Panel decisions in which the section 114 costs power has been considered. Most of the relevant cases were helpfully drawn together in 2003 by the Tribunal in Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35, and more recently in Battenberg v The Union Club (No 3) [2005] NSWADT 126. What those cases demonstrate is that “in order to justify awarding costs ‘there must be something over and beyond a normal course of circumstances’” (Battenberg v The Union Club (No 3) [2005] NSWADT 126 at [8] and that “as a general proposition a combination of circumstances is required in order to justify an award of costs” (Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35 at [21]).

21 Many of the circumstances that have caused the Tribunal to exercise the discretionary power to make a costs order are described in Battenberg (No 3) and Borg. The manner in which the parties have conducted the litigation is a circumstance which has been taken into account on numerous occasions. The applicant’s conduct in leaving the hearing prior to its conclusion, thereby abandoning her complaints, is clearly a significant relevant consideration when determining whether to exercise the discretionary power to award costs to the respondent.

22 A plaintiff who walked out in the middle of her case in a court would, in the absence of extraordinary circumstances, be ordered to pay the defendant’s costs. In the courts costs usually follow the event: the losing party is generally ordered to pay the costs of the successful party whatever the reason for the ultimate outcome of the case. In this Tribunal, in proceedings under the Anti-Discrimination Act 1977, the ‘starting point’ is different. In this jurisdiction the legislature chose from the outset not to apply the ‘usual’ costs rule followed in the courts. There are numerous reasons why this legislative decision may have been taken in 1977 and not reversed since even though there has been ample opportunity to do so on the many occasions that the Act has been amended. The public interest in eradicating unlawful discrimination and the difficulties faced by any individual applicant in proving a case of unlawful discrimination may be two of the reasons why the ‘usual’ costs rule from the courts does not apply in proceedings under the Act. Also, private individuals bear a heavy responsibility in this jurisdiction because there is no arm of government which actively enforces anti-discrimination laws or which assists people to pursue complaints of unlawful discrimination in the Tribunal.

23 The many cases collected and referred to Battenberg (No 3) and Borg do not detract from the following observation made by the Appeal Panel in Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [42]:

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, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.

24 The behaviour of the applicant in this case could not be described as “an abuse of process” in the sense in which that term was used in Tu (No 2). There was no suggestion by the respondent that the applicant pursued her complaints of racial discrimination frivolously, vexatiously or with a lack of good faith. The manner in which the applicant abandoned her complaints was not ideal but fault in the litigation process is not a cause in itself to make a costs order, at least in this jurisdiction.

25 We accept that the applicant was placed under considerable pressure by Mr Dates’ ill-advised direction to her to leave the hearing because he had been denied the opportunity to make speeches of a general political nature. The applicant appeared to be genuinely drawn between pursuing her complaints and following Mr Dates’ direction. In the end she chose to follow Mr Dates’ direction. Regrettably it is futile to consider whether a costs order should be made against Mr Dates because it would be stretching the language of s 114 of the Act too far to make a costs order against a person who was not a party to the complaints and who was not put on notice that he was at risk of having a costs order made against him.

26 Up until this point in the hearing the applicant had pursued her complaints in good faith. She appeared to genuinely believe that her children received poor medical treatment because of their race. This was not an easy case for her, or for the respondent, because all concerned clearly accepted that the treatment given to David and Carmel was less than optimal.

27 Even though the respondent admitted that mistakes were made when the applicant’s children were treated at the Kempsey Hospital in September 2002, senior officials of the respondent appeared to genuinely believe that race was not a factor which in any way influenced that treatment. We also accept that the medical practitioners who provided treatment to the children genuinely believed that race was not a factor which influenced their clinical decisions.

28 Because the applicant left the hearing and abandoned her complaints the Tribunal was unable to determine whether there was any evidence which supported her complaints or whether those complaints were based upon mere supposition. Had the Tribunal dismissed the complaints after a full inquiry in which the actual substance of the complaints was fully investigated it is highly unlikely that a costs order would have been made against the applicant because, as we have already noted, such costs orders are usually confined to cases where there has been an “abuse of process”. Consequently, in the circumstances of this case it is difficult to see why a costs order should be made against the applicant when there is no suggestion of an “abuse of process”.

29 The respondent has not pointed to any additional costs it has sustained because the applicant abandoned her complaints towards the end of the first hearing day rather than pursued them for the two days set aside for the hearing. Had the proceedings been adjourned rather than terminated when the applicant left the hearing room, and had the respondent incurred expense as a result of any adjournment, we would have felt compelled to order that the applicant pay any costs thrown away as a result of an adjournment. But that is not what happened in this case. The applicant has sustained the ultimate penalty of having her complaints dismissed. Whilst those complaints have not been determined on their merits, the applicant is likely to be faced with the response that she is hopelessly out of time if she seeks to lodge fresh complaints about the same events. The complaints are to all intents and purposes finished.

30 For the reasons given, we dismiss the respondent’s application for costs.

Orders

31 The Tribunal makes the following orders:

1. Complaints dismissed.

2. Respondent’s application for costs dismissed.