Neeson v Director General, New South Wales Department of Education and Training (No 2)

[2010] NSWADT 92

CITATION:	Neeson v Director General, New South Wales Department of Education and Training (No 2) [2010] NSWADT 92
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Bruce Neeson RESPONDENT Director General, New South Wales Department of Education and Training
FILE NUMBER:	081077, 081041
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	13 January 2010
DATE OF DECISION:	13 April 2010
BEFORE:	Furness G - Judicial Member; Weule B - Non-Judicial Member; Schneeweiss J - Non-Judicial Member
CATCHWORDS:	EQUAL OPPORTUNITY - costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Battenberg v The Union Club (No 3) [2005] NSWADT 126
REPRESENTATION:	APPLICANT In person RESPONDENT K Nomchong, counsel
ORDERS:	1.The Tribunal makes no order as to costs and dismisses the respondent’s application.

REASONS FOR DECISION

1 The applicant’s complaints of discrimination on the grounds of age and disability in the area of employment and of victimisation were dismissed by the Tribunal, see Neeson v Director General, Department of Education and Training [2009] NSWADT 292.

2 At the conclusion of the hearing, the respondent sought to be heard on the issue of costs. The Tribunal directed that the respondent provide written submissions in support of an application for costs within 28 days, with the applicant given 28 days to make submissions in response. Unless an application was made that the application be determined following a hearing, and that application was successful, then a decision would be made on the basis of the written submissions as filed.

3 Written submissions were filed by the respondent on 16 December 2009 and were filed by the applicant on 6 January 2010. Neither party submitted that the application for costs should be determined following a hearing. Thus, this decision is made on the basis of the written submissions.

Respondent’s submissions

4 The respondent sought an order that the applicant pay the respondent’s costs on a party/party basis or pay 50% of the costs or such other proportion as determined by the Tribunal. The respondent submitted that the applicant’s conduct justified the exercise of the Tribunal’s discretion to award costs in favour of the respondent.

5 First, the respondent submitted that the applicant’s claims of direct discrimination on the grounds of age and disability and his claim of victimisation were entirely misconceived. It was submitted that the applicant did not turn his attention to the requisite elements of the breach under the Act and that his claim in relation to disability was based on his assertion that he had been made ill by the circumstances of his employment. It was submitted that, save for one finding of fact which was made, his complaint of victimisation was based on internal policies of the respondent and legislation other than the Anti Discrimination Act.

6 Secondly, the respondent submitted that the applicant made serious unsubstantiated allegations of unethical, deceitful, conspiratorial, improper and corrupt conduct against a number of people employed by the respondent. His conduct in making such allegations should be considered vexatious.

7 Thirdly, it was submitted that the applicant failed to comply with directions given. This submission was based on the orders made by Judicial Member Britton that the applicant provide, among other matters, a document setting out the details of his claims including the nature of the disability from which he suffered, whether the complaints were of direct or indirect discrimination, specifying the conduct complained of in respect of each complaint and the detriment suffered in relation to the victimisation complaint. Instead, it was submitted, the applicant’s documents were disorderly, bizarre and consisted on self-serving monologues.

8 Fourthly, the respondent submitted that the applicant did not access the 11 folders of material produced by the respondent and, further that, during the hearing, the applicant indicated that he had not read that material. The applicant also failed to bring some relevant documents to the Tribunal.

9 Finally, the respondent submitted that the applicant conducted himself in a belligerent, rude and offensive manner.

10 The respondent submitted that the grounds of this matter are similar to those which existed in Battenberg v the Union Club (No 3) [2005] NSWADT 126 in which an order was made that 50% of the costs incurred by the respondent be paid by the applicant.

The applicant’s submissions

11 The applicant submitted that his claims were not vexatious, misconceived or had no merit and relied on the fact that the Anti Discrimination Board (ADB) had identified six complaints and that the Tribunal had identified the complaint of victimisation. He also submitted that his documents had been accepted by the ADB and the Tribunal.

12 The applicant submitted that his allegations against the respondent’s staff were supported by the evidence and referred to a number of emails which he said had been submitted in evidence.

13 The applicant denied he failed to comply with directions made and submitted he did exactly as was asked of him by Judicial Member Britton.

14 The applicant submitted that he was not aware that all of his documentation would need to be catalogued and produced at the hearing.

15 In relation to the respondent’s submission that he was belligerent, rude and offensive, the applicant submitted that the hearing was not informal, it did not progress along expected lines, he had difficulty hearing and did not know legal procedure. He submitted that the respondent’s legal representatives acted, on two occasions, rudely and offensively towards him.

16 Throughout his submissions, the applicant sought to argue the correctness of the claims he made to the Tribunal.

17 The Tribunal’s power to award costs is derived from s.88 of the ADT Act. It provides as follows

(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 Act2004 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 .

18 This provision has applied since 1 January 2009 and replaced the provision which was considered in the Battenberg decision referred to above. It has been considered in a number of recent Tribunal decisions. In Corrigan & Gibson v Watson [2009] NSWADT 110, the Tribunal stated:

8. Section 88 is not specifically referred to in the Attorney General's second reading speech of the Administrative Decisions Tribunal Amendment Bill 2008 (Bill), which introduced it. However, the notes to the Bill state that:
Currently, section 88(1) provides that costs may be awarded only if the Tribunal is satisfied that there are special circumstances. The new provisions are based largely on the provisions of s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) of Victoria.
9 Section 88 begins with a general statement of principle that each party to proceedings is to bear his or her own costs. That principle is different from the principle that applies in courts. In the absence of special circumstances, courts generally exercise their discretion to award costs in favour of the successful party, that is ‘costs follow the event’: Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 207-208. Section 88 gives the Tribunal a discretion to award costs ‘but only if it is satisfied that it is fair to do so’ having regard to certain matters which are listed at (a) to (e)…
10 The Tribunal is empowered by sub-section (2) to determine by whom and to what extent costs are paid. Costs are usually awarded on what is known as a ‘party/party’ basis, that is, the costs that are ‘fair and reasonable’ for the work: Legal Profession Act2004, s 364(1). ...

16 In Alramon Pty Ltd v Jonamill Pty Ltd (No 2)[2009] NSWADT 302 the Tribunal stated:

"5 The main provision relating to costs in the Tribunal is section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act ").
6 Pursuant to the ADT Act , the general rule has always been that each party bears its own costs. The previous section 88 of the ADT Act permitted the Tribunal to make an order that one party pay the costs of another party but only if "special circumstances" existed. The question of what constituted "special circumstances" justifying an order for costs was the subject of a number of previous decisions at first instance and upon appeal, which need not be recited here.
7 Since January 2009, the newly amended section 88 (1A) of the ADT Act has provided that 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 five defined factors which may permit an order for costs:
a. the manner in which a party has conducted the proceedings
b. whether a party has been responsible for unreasonably prolonging the time taken to complete the proceedings
c. the relevant 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, and
e. any other matter that the Tribunal considers relevant.
8 The Tribunal’s Practice Note 22 contains guidelines concerning costs. Paragraph 5 of this Practice Note recites the terms of section 88(1A) and confirms that many of those matters now listed in this section are similar to the "special circumstances" previously identified by the Tribunal as justifying an award of costs under the old provisions.
9 Unless there is some particular circumstance falling within the ambit of section 88(1A) of the ADT Act , each party should bear its own costs.
10 Generally, the previous approach of the Tribunal toward what constituted "special circumstances" was that such circumstances had to be exceptional, or out of the ordinary. Following the subject amendments to the ADT Act , a factor or circumstance which renders the awarding of costs "fair" under section 88(1A)need not necessarily be exceptional or out of the ordinary.
11 The decision as to whether or not costs should be awarded, does not simply involve a balancing exercise to determine what is fair. To reiterate, section 88 provides that each party is to bear its own costs unless there is some particular circumstance which makes it fair to order a party to pay the costs of another party and, if such circumstance exists, the Tribunal may then order costs but only if it considers in its discretion that it is appropriate to do so."...........

19 The Tribunal agrees that the starting point for considering whether to exercise the discretion provided by s.88 is that each party will bear their own costs. Only if satisfied that it is fair and then by having regard to one of the specified matters, including other relevant matters, should costs be awarded.

20 Dealing first with para (a) of s.88(1A), to fall within that provision there needs to be a finding that the party conducted the proceedings in a way that unnecessarily disadvantaged another party. Six areas of conduct are specified, although the provision is not limited to those six areas. The Tribunal has understood the submissions made by the respondent that the applicant made unsubstantiated allegations, failed to comply with directions, did not use documents produced and his manner, have been made by reference to s.88(1A)(a)(i) and (vi).

21 The respondent has not expressly submitted that it was disadvantaged, unnecessarily or otherwise by the conduct of the applicant. The respondent did submit that it was required to “trawl” through voluminous documents which were repetitive, difficult to comprehend and unhelpful. The Tribunal infers from the submissions that had the applicant framed his case in the way directed by Judicial Member Britton, that may have been avoided.

22 There is no doubt that the manner in which the applicant presented his case required more of the respondent than if the case had been presented in accordance with the directions made. As the Tribunal stated in its decision at para 35 The applicant provided a large number of documents to the Tribunal, most of which were created by him and included excerpts of other documents which were reproduced by way of retyping or cutting and pasting into his documents. The task of determining the precise nature of the conduct complained of was challenging for the respondent and for the Tribunal.

23 The Tribunal also accepts that the conduct of the applicant at times during the hearing was less than courteous and respectful to all present and that he made a number of serious allegations for which he presented little cogent evidence in support.

24 However, the Tribunal takes into account that the applicant was unrepresented and not familiar with the methods used in the Tribunal to organise and refer to documents or the courtesies usually evident in court rooms. Notwithstanding the difficulties presented, the Tribunal does not consider that the respondent was in fact disadvantaged.

25 Turning then to s.88 (1A)(c), the relative strengths of the claims made, the respondent submits that each of the three claims made by the applicant were entirely misconceived.

26 It is the case that each of the applicant’s claims was dismissed and a finding made that the complaint of discrimination on the grounds of disability was misconceived. There were, however, facts available to the applicant which made arguable the claim of victimisation and discrimination on the grounds of age.

27 The Tribunal is not satisfied that, having regard to the relative strengths of the claim made by the applicant, it is fair to award costs.

28 The respondent referred the Tribunal to the decision in Battenberg. Section 88 of the ADT Act has been substantially amended since Battenberg was decided. That case was decided when the discretion as to costs was enlivened where special circumstances existed. However, a number of matters which the Tribunal took into account pursuant to s.88 as it applied when Battenberg was decided have application to the current s.88.

29 The findings of the Tribunal in Battenberg were that the proceedings were unnecessarily extended as a result of the applicant’s conduct of his case. Examples given included “non-compliance with the Tribunal’s timetable; the repeated failure to attend directions hearings; the eleventh-hour request for summonses to be issued and the consequent loss of the first day of hearing; the extended cross-examination of the Respondent’s witnesses on matters of peripheral relevance to the proceedings; the lengthy examination-in-chief necessitated by the Applicant’s failure to prepare a comprehensive statement as directed, and the late service of medical evidence”.

30 The only factual matter which is similar to this case is that a direction to prepare material in a particular way was not followed. However, relevantly dissimilar is that, in Battenberg the applicant was legally represented throughout the hearing, although there was no appearance by the applicant or a lawyer on his behalf at the final hearing and no submissions were made by him as to costs.

31 Having regard to the findings of the Tribunal, the submissions made by the respondent and the applicant and the provisions of s.88(1A), the Tribunal makes no order as to costs and dismisses the respondent’s application.