O'Sullivan v Health Care Complaints Commission
[2010] NSWADT 189
•28 July 2010
CITATION: O’Sullivan v Health Care Complaints Commission [2010] NSWADT 189 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Brendan Thomas O’SullivanFIRST RESPONDENT
SECOND RESPONDENT
Health Care Complaints Commission
Kieran PehmFILE NUMBER: 091056 HEARING DATES: On the papers SUBMISSIONS CLOSED: 8 July 2010
DATE OF DECISION:
28 July 2010BEFORE: Chesterman M - Deputy President; Field B - Non-Judicial Member; Hiffernan N - Non-Judicial Member CATCHWORDS: Costs – complaint of discrimination LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977CASES CITED: AT v Commissioner of Police [2010] NSWCA 131
O’Sullivan v NSW Medical Board [2010] NSWADT 75
O’Sullivan v Pehm [2010] NSWADT 57
Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71REPRESENTATION: APPLICANT
1st and 2nd RESPONDENT
C Donnelly, solicitor
J Oakley, barristerORDERS: The Respondents’ application for an order that the Applicant pay their costs thrown away by reason of the adjournment of the hearing set down for 30 March 2010 is dismissed.
REASONS FOR DECISION
The Respondents’ costs application
1 In these proceedings, the Applicant is Dr Brendan O’Sullivan and the two Respondents are the Health Care Complaints Commission and its Chief Executive Officer, Mr Kieran Pehm. The Applicant complains that the Respondents unlawfully discriminated against him by virtue of conduct occurring during 2008. He seeks damages and other remedies under the Anti-Discrimination Act 1977 (‘the AD Act’).
2 The present decision relates to an application by the two Respondents for an order that the Applicant pay their costs thrown away by reason of the adjournment of a hearing set down for 30 March 2010.
3 The application for costs was made at the hearing by Ms Janet Oakley of counsel. During the period leading up to that hearing, Mr Robert Eaves, solicitor, acted for the Applicant. At the hearing itself, Mr Gordon Quah-Smith, solicitor, appeared for him, in circumstances shortly to be described.
4 Pursuant to directions given at the hearing, submissions in support of the application were filed on 13 April 2010. Although these directions required that submissions in response should be filed by 27 April, this was not done. On that day, Mr Eaves filed a notice of ceasing to act. On 24 May, Ms Colleen Donnelly, solicitor, notified the Tribunal that she represented the Applicant. On 8 July, after the Registry had sent a letter to her indicating that submissions on this matter were long overdue, she filed submissions opposing the costs application.
5 The hearing of these proceedings has not yet come to an end. But it is appropriate that the question of the costs of the adjourned hearing of 30 March should now be decided. The reasons are (a) that a wholly new Panel was constituted to take over the proceedings immediately after this hearing and (b) that the issues to be resolved in determining whether costs should be awarded are separate from any other costs issues that have arisen or are likely to arise in the proceedings.
6 The Respondents have also applied for costs orders relating to hearings that were fixed for certain days earlier than 30 March 2010, but did not proceed. On those days, the Tribunal Panel had a different membership to that of the Panel on 30 March and that of the Panel subsequently constituted. These other costs applications will therefore be the subject of a separate decision (‘the separate costs decision’), which will be published simultaneously with this decision.
7 It is not necessary in this decision to discuss substantive aspects of the Applicant’s complaint of unlawful discrimination.
The circumstances of the adjournment on 30 March 2010
8 The Applicant’s complaint was first set down for a hearing on the merits on 11 and 14 December 2009. That hearing was vacated, for reasons explained in the separate costs decision.
9 At a case conference on 3 February 2010, the complaint was set down for a hearing on the merits on 30 March 2010 (a Tuesday).
10 On 19 February, the Applicant filed and served on the Crown Solicitor, who acts for the Respondents, an affidavit sworn by him on that day. The copy served did not, however, include the annexures to the affidavit.
11 At a hearing on 23 February, Mr Eaves advised the Tribunal that the Applicant was no longer proceeding with an application that he had previously foreshadowed for the hearing of this complaint to take place concurrently with the hearing of two other complaints under the AD Act in which he was the applicant. In one of these, the respondents were the two Respondents in the present proceedings and Ms Karen Mobbs, an employee of the Health Care Complaints Commission. In the other, the respondent was the NSW Medical Board. The costs of this discontinued application for a concurrent hearing of all three complaints are dealt with in the separate costs decision.
12 It should be added that on 23 February, the Tribunal delivered a reserved decision summarily dismissing the Applicant’s complaint against the two present Respondents and Ms Mobbs (O’Sullivan v Pehm [2010] NSWADT 57). On 22 March, the Tribunal, constituted by the member (Deputy President Chesterman) who presides in the Panel delivering the present decision, handed down a judgment summarily dismissing the Applicant’s complaint against the Medical Board (O’Sullivan v NSW Medical Board [2010] NSWADT 75).
13 On Friday 26 March, the Applicant served the annexures to his affidavit of 19 February on the Crown Solicitor.
14 Also on 26 March, Mr Eaves faxed letters in different terms to the Crown Solicitor and to the Registry. In both letters, he advised that due to illness he would not have time to prepare the Applicant’s case for the hearing and that for this reason he would ask for the hearing to be adjourned. He indicated that he had not yet obtained a medical certificate regarding his illness, but that he would do so on 29 March and would furnish it to the Registry.
15 Also on 26 March, the Crown Solicitor advised Mr Eaves and the Registry by fax that the Respondents would oppose any application for adjournment.
16 On Sunday 28 March, Mr Eaves faxed a letter to the Registry confirming that the Applicant wished the hearing on 30 March to be adjourned and attaching a copy of a medical certificate dated 27 March. The certificate stated that Mr Eaves was ‘feeling unwell’ and would be ‘unfit to continue his usual occupation to the full capacity until he improves’. In his letter, Mr Eaves indicated (a) that since he was a sole practitioner, there was no solicitor in his office who could take the matter over at short notice and (b) that during a telephone conversation on 26 March with Ms Elizabeth Mee, a senior solicitor in the employ of the Crown Solicitor, he was told that the Crown Solicitor would be instructing their counsel to prepare the matter during the weekend of 27 and 28 March. A copy of this letter and certificate was not sent to the Crown Solicitor.
17 Also on 28 March, the Applicant sent an email to the Crown Solicitor regarding the requested adjournment.
18 On Monday 29 March, the originals of Mr Eaves’ letter of 28 March and the medical certificate were filed in the Tribunal. Copies were not served on the Crown Solicitor. In addition, Dr O’Sullivan delivered to the Registry a letter, to which was annexed a copy of a letter of the same date to the Crown Solicitor.
19 In both of these letters, the Applicant advanced reasons why the adjournment should be granted. These included the fact that he intended to appeal against the summary dismissal of his complaint against the Medical Board. This matter was not, however, mentioned in any of the letters written by Mr Eaves requesting an adjournment.
20 Also on 29 March, the Crown Solicitor faxed a letter to Mr Eaves, with a copy faxed to Registry, repeating that the Respondents opposed any adjournment of the hearing set down for 30 March.
21 On 30 March, having heard argument from Mr Quah-Smith and Ms Oakley on the question of adjournment, we ruled that an adjournment should be granted.
22 In so ruling, we agreed with a submission by Mr Quah-Smith that it would be procedurally unfair to the Applicant to require his case to be presented either by Mr Quah-Smith, who had only been very recently instructed, or by the Applicant himself, who is not legally qualified.
23 We rejected Mr Quah-Smith’s submission that the hearing of this complaint should await the disposal of the Applicant’s foreshadowed appeal against the dismissal of his complaint against the Medical Board. Our reasons were as follows: (a) although there are factual overlaps between the two complaints, they involve different respondents and give rise to different legal issues and (b) that to accede to this submission would be to delay unduly a hearing which, but for Mr Eaves’ illness, could have commenced without further delay.
24 We rejected Ms Oakley’s submission that an adjournment should not be granted. She relied on the following matters: (a) an earlier hearing on the merits of the Applicant’s complaint (it had been set down for two days in December 2009) had been vacated; (b) unnecessary delay had been occasioned by the Applicant’s first making, then discontinuing, an application for the present complaint and his complaint against the Medical Board to be heard concurrently; (c) in the correspondence immediately prior to the hearing it had not been expressly stated that Mr Eaves had been instructed to represent the Applicant ‘fully’ at the hearing; (d) the terms of the medical certificate regarding his illness were unduly vague; (e) another legal representative, if instructed soon after Mr Eaves’ illness became apparent, would have had ample time to prepare for the hearing; and (f) in recent cases in the Court of Appeal and the Supreme Court it had been made clear that the unavailability of counsel is not a ground for granting an adjournment.
25 With regard to the last of these matters, we concluded, after considering the authorities to which Ms Oakley referred, that they did not go so far as to preclude the granting of an adjournment in circumstances such as had arisen in this case.
Relevant principles regarding costs
26 By virtue of section 110 of the AD Act, awards of costs in Tribunal proceedings under this Act are governed by section 88 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). So far as is relevant here, section 88 provides:-
(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:(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.
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,…
(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
(iv) causing an adjournment, or…(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(e) any other matter that the Tribunal considers relevant.(d) the nature and complexity of the proceedings,
27 In a recent decision of the Court of Appeal, AT v Commissioner of Police [2010] NSWCA 131, Basten JA, delivering the judgment of the Court, referred at [33] to ‘the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel’. He then said:-
Although an order varying the general rule may be made “only if” the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of “fairness” will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the [ADT Act].
28 The current version of section 88, in which the criterion of ‘fairness’ stated in subsection (1A) has replaced a rule that in the absence of ‘special circumstances’ no costs might be awarded, became operative on 1 January 2009. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 at [72], the Tribunal stated:-
What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant’s entitlement to costs. …[T]he result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.
The parties’ submissions
29 In contending in her written submissions that the Applicant should pay the Respondents’ costs thrown away by reason of the adjournment of the hearing set down for 30 March 2010, Ms Oakley pointed to instances of conduct of the Applicant and of Mr Eaves that she described in the following terms:
(i) The repeated and unexplained failure by the Applicant to comply with directions and orders of the Tribunal.
(ii) Repeatedly addressing correspondence to the Tribunal but without furnishing copies to the Respondents or otherwise informing them of the application.
(iii) Repeatedly seeking adjournments of the matter on the date that the matter was listed for either final or interlocutory hearings.
(iv) Failing to support adjournment applications with evidence.
(v) Unreasonably delaying conclusion of the matter.
30 With regard to paragraph (i) in this list, Ms Oakley referred to the Applicant’s failure to serve until 26 March 2010 the annexures to the affidavit that he had filed and served on 19 February 2010. With regard to paragraphs (ii) and (iv), she referred to the fact that copies of letters sent by Mr Eaves to the Registry on 26 and 28 March 2010 were not furnished to the Crown Solicitor. Accompanying the second of these letters was the evidence – i.e. the medical certificate regarding Mr Eaves’ illness – on which the Applicant relied in seeking an adjournment. With regard to paragraph (iii), Ms Oakley referred to applications for adjournments made on 11 December 2009 and 22 February 2010 (these are outlined in the separate costs decision) as well as the application on 30 March 2010.
31 In opposing Ms Oakley’s contention, Ms Donnelly put forward the following arguments: (a) Mr Eaves gave sufficient advance notice of his illness to the Crown Solicitor; (b) since he was a sole practitioner, there was no solicitor in his office who could take the matter over at short notice; (c) due to the large volume of material that had been filed, another solicitor or barrister would not have had adequate time to prepare for the hearing; and (d) it would not be fair to require the Applicant to bear the Respondents’ costs of an adjournment caused by an occurrence (Mr Eaves’ illness) over which he had no control.
Our conclusions
32 In our judgment, the considerations advanced by Ms Donnelly must prevail. Advance notice was indeed given to the Crown Solicitor that Mr Eaves would not be able to appear on the date fixed for the substantive hearing of the case and that no other legal representative would have sufficient time to prepare for the hearing. The ground on which we granted an adjournment was a factor – namely the illness of Mr Eaves – for which neither Mr Eaves nor the Applicant bore responsibility. Having decided on that date that it would be unfair to the Applicant to refuse an adjournment, we consider that in these circumstances it would likewise not be ‘fair’, within the meaning of section 88(1A) of the ADT Act, to require him to pay all the costs occasioned by the adjournment.
33 We accordingly dismiss the Respondents’ application for an order that the Applicant pay their costs thrown away by reason of the adjournment of the hearing set down for 30 March 2010.
34 We add the following observation. Some of the alleged conduct of the Applicant and his legal representative on which Ms Oakley relied – for example, what she described as ‘the repeated and unexplained failure by the Applicant to comply with directions and orders of the Tribunal’ – might well, if sufficiently established by evidence, be relevant to costs determinations made at some future stage in these proceedings. Our rejection of the present costs application is not intended to preclude the Respondents from relying in such a context on alleged conduct of that nature.
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