Perera v Commissioner of Corrective Services (No 2)

[2008] NSWADT 145

CITATION:	Perera v Commissioner of Corrective Services (No 2) [2008] NSWADT 145
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rex Perera RESPONDENT Commissioner of Corrective Services
FILE NUMBER:	051025
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	17 September 2007
DATE OF DECISION:	21 May 2008
BEFORE:	Smyth M - Judicial Member; Schneeweiss J - Non Judicial Member ; Monaghan-Nagle L - Non Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Ashenhurst v Optima Property Developments Pty Ltd [2006] NSWADT 143 Dunne v Rail Corporation,NSW (No 2) [2006] NSWADT 335 Sebastian v Rail Infrastructure Corporation & Anor (EOD) [2006] NSWADTAP 44 Tu v University of Sydney [2002] NSWADTAP 25
REPRESENTATION:	APPLICANT T Feerick, solicitor RESPONDENT T Anderson, barrister
ORDERS:	The Applicant’s and the Respondent’s applications for costs are dismissed.

REASONS FOR DECISION

Background

1 In the substantive proceedings Mr Perera’s complaint of discrimination on the ground of race was substantiated: [Perera v Commissioner of Corrective Services [2007] NSWADT 115].

2 Parties were informed that an application for costs could be made within fourteen days and that any application should be supported by written submissions. The parties were informed that any application for costs would be determined ‘on the papers’ in accordance with section 76 of the Administrative Decisions Tribunal Act 1997.

3 Each party filed written submissions on the question of costs. Each party applied for costs against the other party.

Legislative provision

4 Section 110 of the Anti- Discrimination Act 1977 (the ADA) provides that each party is to pay his or her own costs, unless the Tribunal is of the opinion that in a particular case there are circumstances that justify making an order as to costs.

5 In Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 at [42] the Appeal Panel summarised the relevant principles regarding costs as:

(1) Section 110 creates a presumption that each party will pay his or her own costs and a discretion to award costs: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 at paras 63-65;

(2) This discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made;

(3) Previous cases relating to costs can only provide an indication of the kinds of circumstances that may attract a costs order;

(4) As a general proposition, a combination of circumstances is required in order to justify an award of costs.

6 We agree with the summary of circumstances that are generally relevant to whether an application for costs should be awarded that was set out by the Tribunal in Dunne v Rail Corporation, NSW (No 2) [2006] NSWADT 335 . In that case the Tribunal stated [at 7]:
The circumstances that are generally regarded as relevant to the question of whether an applicant should be awarded costs include: the manner in which the parties have conducted the proceedings; whether the case raises any important public policy or public interest considerations; whether the applicant's costs exceed or are disproportionate to the amount of damages awarded, and whether the proceedings determine or clarify an important question of law (See Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35 at [21] and Collier v Sunol (No 2) [2006] NSWADT 88 at [34]).
7 The Tribunal in Dunne also noted that ‘in Jordan v North Coast Area Health Service (No 3) [2005] NSWADT 296 the Tribunal based a costs order solely on the fact that the applicant’s legal costs exceeded the amount of damages awarded’ at [8].

The parties written submissions

The Applicant

8 The Applicant submitted that it would be appropriate for the Tribunal to order that the Respondent pay his costs. In support of his application he submitted that he had tried to resolve the matter with his employer, prior to the matter coming before the Tribunal and while the matter was before the Tribunal. He stated that the matter had been resolved in May 2005 however the Respondent had reneged on that agreement “due to a technicality” and he referred to a letter sent to the Registrar of the Tribunal from the Respondent dated 24 May 2005. That letter indicated that an in principle agreement had been reached at mediation subject to a deed being executed. That agreement was to contain a confidentiality clause. It was alleged that the Applicant had discussed the terms of settlement and other information from the mediation session with his work colleagues. The Respondent informed the Tribunal that it no longer wished to proceed to settle the matter and requested that the matter be set down for hearing.

9 The Applicant submitted that he turned to other sources such as his union before seeking legal advice. He was not eligible for free legal advice due to his earning capacity. His legal fees were in excess of $11,000.

The Respondent

10 The Respondent submitted that there are circumstances that justify an order that the Applicant pay the Respondent’s costs. They referred to the two affidavits filed by the Applicant in August and December 2005 following the referral of his complaints to the Tribunal by the Acting President of the Board in 2004. The Applicant made two amendment applications to his complaint in the course of the hearing. One of those was successful, however that additional ground of complaint was ultimately dismissed by the Tribunal.

11 The Respondent submitted that there were a number of mentions and case conferences as well as a three day hearing. The Applicant was successful in relation to only one of his complaints and awarded $1000. The Respondent submitted that the Applicant was not realistic in pursuing his complaints and that it would be contrary to the public interest to award costs to an applicant who causes a respondent to incur unnecessary costs that could never be recovered. The Respondent submitted that they incurred substantial expense in successfully rebutting all but one of the complaints made by the Applicant. It would be consistent with equity and good conscience for the Applicant to pay the Respondents costs.

Discussion and decision

12 In this instance the Applicant was not eligible for legal aid and incurred substantial legal costs far greater than the damages awarded to him. While we have some sympathy for the Applicant we do not consider that in this matter that by itself is sufficient to justify a costs order.

13 The fact that a matter does not settle and the Applicant is subsequently successful or partly successful does not necessarily justify an order for costs.

14 The matter did not concern an important matter of public policy or public interest and did not clarify any important question of law.

15 We are not satisfied that circumstances exist that justify an exercise of the discretion to order for costs for the Applicant.

16 In regard to the Respondent’s application for costs, their application was not filed in accordance with the directions of the Tribunal. The parties were informed that a costs application supported by written submissions could be made within 14 days of the decision. The Respondent’s application for costs was not filed until their submissions in reply to the Applicant’s application for costs, almost two months after the decision. For that reason alone their application fails. Even if wrong on that point we are not satisfied that circumstances exist that justify an order for costs against the complainant.

17 In Tu v University of Sydney [2002] NSWADTAP 25 the Appeal Panel stated that “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 that is, those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith”.

18 While the complainant was not successful in all of his complaints before the Tribunal his race discrimination complaint was substantiated. The complainant clearly held a genuine belief that he was discriminated against and victimised. We do not consider that his complaints or the way that his case was presented involved an abuse of process.

19 In Ashenhurst v Optima Property Developments Pty Ltd [2006] NSWADT 143 (17 May 2006) the Tribunal dealt with a costs application under sub-section 88(1) of the Administrative Decisions Tribunal Act 1997. Under that section the Tribunal has a discretion to award costs if satisfied that there are “special circumstances” that warrant an award of costs. In that case the Tribunal referred to the approach adopted to costs in retail lease applications before the Tribunal stating at [7]:

... In retail leases applications it has been held that where (a) a successful party in proceedings has made an offer of compromise of the dispute before the conclusion of the proceedings; (b) the unsuccessful party has unreasonably rejected the offer; and (c) the terms of the offer were more favourable to the unsuccessful party than the orders made by the Tribunal, that these may constitute "special circumstances" warranting a cost order: see Singh (supra) at [13]. This it has been held to be analogous with costs rules in the Supreme and District Courts and the principles laid down in Calderbank v Calderbank [1975] 3 ALL ER 333: see Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72.
20 Although the Applicant referred to the failed attempt at settlement there is no suggestion that a Calderbank type offer had been made in this case.

21 We are not satisfied that circumstances exist that justify an exercise of the discretion to order for costs for the Respondent.

Orders

The Applicant’s and the Respondent’s applications for costs are dismissed.