Mt v AA (No 2) EOD

[2010] NSWADTAP 38

Appeal Panel - Internal

CITATION:

MT v AA (No 2) EOD [2010] NSWADTAP 38

PARTIES:

APPELLANT
MT

FIRST RESPONDENT
AA

SECOND RESPONDENT
BB

THIRD RESPONDENT
CC

FILE NUMBER:

099071

HEARING DATES:

21 May 2010

SUBMISSIONS CLOSED:

21 May 2010

 
DATE OF DECISION: 

4 June 2010

BEFORE:

Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Bolt M - Non-Judicial Member

CATCHWORDS:

COSTS –relative strengths of the claims – extent of costs

DECISION UNDER APPEAL:

MT v AA [2009] NSWADT 268

FILE NUMBER UNDER APPEAL:

081100

DATE OF DECISION UNDER APPEAL:

06/03/2010

LEGISLATION CITED:

Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997

CASES CITED:

Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP
Corrigan and Gibson v Watson [2009] NSWADT 110
Hawke v WorkCover NSW (No 2) 2008 NSWADTAP 45
Gizah Pty Limited v AXA Trustees Limited (No 2) NSWADT 164
Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 Skiwing Pty Ltd v Trust Company of Australia (Trading as Stockland Property Management [2006] NSWCA 276

REPRESENTATION:

APPELLANT
I Chatterjee, solicitor

RESPONDENT
A Hatzis, counsel

ORDERS:

MT is to pay the respondents’ costs in the sum of $7,398.60 within 28 days of the date of this decision.

REASONS FOR DECISION

Introduction

1 These proceedings relate to an application for costs by the respondents to an appeal before the Appeal Panel. The costs application has been determined ‘on the papers’, that is on the basis of written submissions: Administrative Decisions Tribunal Act 1997 (ADT Act), s 76.

2 The background to this application is that MT complained that during his employment as a barman at a hotel in a New South Wales country town during 2007 he was subjected to discrimination on the ground of disability and victimised in breach of the Anti-Discrimination Act 1977 (AD Act). The Tribunal dismissed each of his complaints. MT appealed to the Appeal Panel against the Tribunal’s decision. The appeal related to two allegations against the Second Respondent, who was the manager of the hotel. The first allegation was that the Second Respondent dismissed him on the ground that he is HIV positive: AD Act, s 49D(2)(c). The second allegation was a complaint against the Second Respondent of victimisation: AD Act, s 50. MT alleged that one of the reasons for being dismissed was that he wrote a letter on 30 October 2007 complaining about ‘discrimination’ and ‘harassment’. MT ’s appeal was on a question of law: s 113 and s 114 of the ADT Act. The Appeal Panel decided that MT had not identified a question of law or, if he had, the Tribunal did not answer that question erroneously. The appeal was dismissed and the respondents have applied for costs.

Costs provision

Section 88 of the ADT Act provides that:

(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.

Issue

3 Given that the general rule is that each party to proceedings bears his or her own costs, the issue is whether it is fair to award costs to the respondents having regard to the matters listed in s 88(1A) of the ADT Act which includes any matter that the Appeal Panel considers relevant.

Interpretation of s 88

4 MT’s lawyer submitted that as these proceedings were in the Equal Opportunity Division of the Tribunal, s 88 should be interpreted beneficially. In particular, an award of costs should only be made in the Equal Opportunity Division in ‘the most unusual of circumstances, perhaps only where shown vexatious in keeping with the beneficial object of the human rights jurisdiction’. There is no issue of statutory construction in these proceedings which would give rise to a beneficial interpretation being preferred. The test is plain. The Appeal Panel must be satisfied that it is ‘fair’ to award costs having regard to the matters listed in s 88(1A) of the ADT Act which includes any matter that the Appeal Panel considers relevant. While one of those considerations is whether proceedings have been conducted vexatiously, that is not the only relevant matter.

5 Nevertheless, we agree with MT’s lawyer that it is relevant that these proceedings are in the Equal Opportunity Division rather than, for example, in the Retail Leases Division where parties are in a commercial relationship: Gizah Pty Limited v AXA Trustees Limited (No 2) NSWADT 164 at [16]. We accept that the Tribunal has been more inclined to make costs orders in cases in the Retail Leases Division given the commercial nature of those proceedings: Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 at [37].

Relative strength of the parties’ claims

6 Legal principles. The main basis for the costs application was that MT’s appeal had no tenable basis in fact or law, or was so weak that costs should be awarded: ADT Act, s 88(1A)(c). While being successful on appeal, by itself, is not a matter that would ordinarily make it fair to award costs against the unsuccessful party, the strength of the appeal, including whether it has any tenable basis in fact or law, is relevant. Even if a claim is not ‘unarguable, unreasonable or untenable’ it may still be fair to award costs: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 at [43]. Nevertheless, in Corrigan and Gibson v Watson [2009] NSWADT 110 at [29] it was held that there needs to be a ‘high level’ of relative weakness of a party’s case in order to justify making an award of costs.

7 Assessment of strength of the appeal. In this case the appellant raised three grounds of appeal which were said to identify questions of law. The grounds of appeal were that:

1. The Tribunal’s decision was affected by apprehended bias. This ground related to findings of credibility and fact that the Tribunal made in its reasons for decision.

2. The Tribunal made findings which were not reasonably available to it on the evidence.

3. The Tribunal misapplied s 50(1)(c) of the AD Act . This ground asserted that the Tribunal erred when it found that the 30 October letter did not constitute an allegation of an act which amounts to a contravention of the AD Act , s 50(1)(c).

8 In relation to the first two grounds, the Appeal Panel said at [4] that:

After some discussion during the hearing of the appeal, the Appeal Panel invited MT to withdraw his appeal on the first two grounds. That invitation was made because the Appeal Panel had come to the view that those grounds were so lacking in merit that they did not warrant the Appeal Panel’s consideration. MT declined to withdraw those grounds of appeal.

9 In relation to the first ground of appeal, the Appeal Panel ultimately rejected MT’s submission that the Tribunal had made various findings of fact and credibility that gave rise to an apprehension of bias. In particular, the Appeal Panel found at [5] that MT was not able to identify any authority for the proposition that findings of fact and credibility in written reasons for decision could constitute such conduct. The Appeal Panel went on to say that:

While conduct of a Tribunal member during the course of or separate from the proceedings may be conduct which might give rise to an apprehension of bias, the absence of any such conduct in this case is fatal to MT ’s ground of appeal.

10 The Appeal Panel went on to deal with a related submission which was not identified as a separate ground of appeal, that is that the Tribunal had breached the rules of procedural fairness in relation to its finding as to MT’s credit. In summary, MT asserted that the Tribunal had pre-judged his general credit before he gave oral evidence. At [7] of the decision the Appeal Panel found no evidence which could support that proposition.

11 The second ground of appeal was that the Tribunal made findings which were not reasonably open to it on the evidence. The Appeal Panel at [8] found that this ground of appeal did not identify a question of law. Even if it had, it was based, in part, on a misconceived view of the Tribunal’s findings.

12 The third ground of appeal was that the Tribunal had mis-applied s 50 of the AD Act when it found that a complaint alleging workplace harassment did not constitute a complaint alleging a contravention of the AD Act under s 50(1)(c). MT submitted that it was open to the Tribunal to find that this allegation came within s 50(1)(c) and that it should have done so. The Appeal Panel found that MT had mischaracterised the Tribunal’s reasons and that, in fact, the Tribunal was distinguishing between allegations of discrimination and harassment on the ground of HIV status (which would or could constitute a contravention of the AD Act) and other allegations of harassment unrelated to HIV status.

13 MT submitted that the grounds of appeal were not untenable or weak because the Tribunal asked MT’s legal representatives to address the Appeal Panel on those grounds. The fact that the Appeal Panel did not pre-judge the issue and afforded MT’s representative procedural fairness by giving him a reasonable opportunity to present his case does not mean that the Appeal Panel ultimately found those submissions to be tenable or persuasive.

14 It is also irrelevant that MT has appealed to the Supreme Court against the Appeal Panel’s decision. According to MT, counsel has provided ‘a reasonable prospects opinion’. The representatives of MT appeared to be suggesting that the appeal has reasonable prospects of success based on the decision of the Court of Appeal in Skiwing Pty Ltd v Trust Company of Australia (Trading as Stockland Property Management [2006] NSWCA 276 at [52] to [53]. The view of counsel that an appeal against the Appeal Panel’s decision has reasonable prospects of success is one opinion. It does not necessarily mean that MT’s appeal to the Appeal Panel had reasonable prospects of success. We also note that, subject to any interlocutory order made by the Supreme Court, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision: ADT Act, s 121.

Nature of the proceedings

15 Appeal confined to questions of law. The respondents submitted that as the proceedings are appeal proceedings, costs ought more readily be awarded. In Hawke v WorkCover NSW (No2) 2008 NSWADTAP 45 at [15], President O’Connor said that:

If the losing party at first instance (whether citizen or administrator) brings forward an unmeritorious appeal, the other party should be given some protection from having to go around the course a second time.

16 While that comment was made in relation to the former s 88, where the test was ‘special circumstances’ rather than ‘fairness’, we agree that it is more likely to be fair to award costs against a party who brings a weak appeal than against a party who brings a weak case to the Tribunal at first instance. That is because, as the President noted in Hawke, the other party should have ‘some protection from having to go around the course a second time.’

17 MT’s representative submitted that it was relevant that the appeal was confined to questions of law and that he did not seek leave for the appeal to extend to the merits of the Tribunal’s decision. That meant that the ‘complexity and workload’ generated by the appeal was less than it would otherwise have been. While that is an accurate observation, is not relevant to the issue of whether costs should be awarded in relation to the appeal on questions of law that MT made.

Conclusion

18 We agree with the respondents’ submission that the first two grounds of appeal were untenable. Even if they were not untenable, they were extremely weak. They were so weak, in fact, that the Appeal Panel invited MT’s representative to withdraw them, thus giving a clear indication that it regarded them as unmeritorious. The third ground cannot be described as untenable. We have had regard to those matters and to the fact that the proceedings were in the nature of an appeal, to conclude that MT should pay at least a proportion of the respondents’ costs of the appeal.

Extent of costs

19 The Tribunal may determine the amount of costs to be paid. Costs may be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. In this case the respondents applied for costs of $14,797.20. Copies of the relevant bills were provided. Given that only two of the three grounds of appeal were untenable (or extremely weak), it may be considered fair to order that MT pay two-thirds of the respondent’s costs. However, the first two grounds of appeal were less complex and took less time to consider than the third ground. Consequently, we consider it fair to order MT to pay half the respondents’ costs of that is, $7,398.60.

MT is to pay the respondents’ costs in the sum of $7,398.60 within 28 days of the date of this decision.