Ping (Peter) Lin v American International Assurance Company (Australia) Pty Ltd (No 3)

[2006] NSWADT 347

CITATION:	Ping (Peter) Lin v American International Assurance Company (Australia) Pty Ltd (No 3) [2006] NSWADT 347
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Ping (Peter) Lin RESPONDENT American International Assurance Company (Australia) Pty Ltd
FILE NUMBER:	031102
HEARING DATES:	On the Papers
SUBMISSIONS CLOSED:	09/21/2006
DATE OF DECISION:	12/06/2006
BEFORE:	Britton A - (Deputy President); Hayes E - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59 Lin v American International Assurance Company (Australia) Pty Ltd (No 2) [2006] NSWADT 228 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4 Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 Wilde v University of Sydney (No 2) [2004] NSWADT 16 Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998 Z v University of A & Ors (No 9) [2005] NSWADT 25 Moylan v North Coast Area Health Service [2005] NSWADT 175
REPRESENTATION:	I. Archibald, barrister C. Ronalds, SC
ORDERS:	Respondent’s application for costs is dismissed.

1 American International Assurance Company (Australia) Pty Ltd (AIA) seeks an award of costs following this Tribunal’s decision to dismiss Mr Pin (Peter) Lin’s complaints of race discrimination and victimisation, (Lin v American International Assurance Company (Australia) Pty Ltd (No 2) [2006] NSWADT 228). Not surprisingly, Mr Lin opposes that application.

2 With the consent of the parties, this application has been determined ‘on the papers’. Both parties provided written submissions. In addition to the submissions prepared by his legal representatives, Mr Lin provided the Tribunal with detailed written submissions that he had prepared. In those submissions Mr Lin repeated a number of claims made in the course of the substantive proceedings. In addition, he raised new issues that had not been raised by his representatives. As we have not been advised that Mr Lin’s representatives no longer acted for him in this matter, in our view it is inappropriate for us to have regard to the submissions prepared by Mr Lin himself.

Background

3 Section 110(1) of the Anti-Discrimination Act 1977 (the Act) provides that each party to an inquiry shall pay his or her own costs. However, s 110(2) grants the Tribunal discretion to ‘make such orders as it thinks fit’ where it is ‘of the opinion in a particular case that there are circumstances that justify it doing so’.

4 The principles underlying this provision have been the subject of detailed consideration by the Equal Opportunity Division of the Tribunal: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10; Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4; Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25; Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36; Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45; Maylor (No. 2 ) v Mid North Coast Area Health Service [2001] NSWADT 118; Wilde v University of Sydney (No 2) [2004] NSWADT 16 Z v University of A & Ors (No 9) [2005] NSWADT 25 and Moylan v North Coast Area Health Service [2005] NSWADT 175.

5 The Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski observed at [63]-[65], that s 114 of the Act (now s 110) does not prescribe a test to be applied, but rather creates a presumption in subsection (1) and a discretion in subsection (2). The Panel cautioned that this discretion must be exercised judicially, and no authority or rule can determine whether, in any particular case, an order should be made: Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998. The Panel went on to say at [67] that in order to justify awarding costs ‘there has to be something over and beyond a normal course of circumstances’:

This should be understood to mean nothing other than that the presumption in section 114(1) 'must yield' when in a particular case there are circumstances justifying the making of a costs order ( Penfold v Penfold (1980) 144 CLR 311 at page 315). To similar effect, there may be in a particular case 'circumstances which justify the departure from the general rule' ( Australian Postal Commission v Dao & Anor (No 2) (1986) 6NSWLR 497 at 505).

6 The Appeal Panel in Tu v University of Sydney (No 2) [2002] NSWADTAP 25 observed at [42] that:

The sanction of a full costs order against a 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. [See also Z v University of A & Ors (No 9) [2005] NSWADT 25 and Moylan v North Coast Area Health Service [2005] NSWADT 175.]

7 In Borg v Commissioner, Department of Corrective Services & Anor, the Tribunal concluded at [21], following an extensive review of those cases where costs were awarded in favour of an applicant, that ‘as a general proposition a combination of circumstances is required in order to justify an award of costs’.

Submissions

8 AIA submitted that there were serious and substantial defects in the manner in which Mr Lin conducted these proceedings and as a consequence it incurred significant additional costs and all or part of those costs should be awarded against Mr Lin. It contended that Mr Lin must now carry the consequences of his approach to the proceedings which it contended was not the normal, or standard in this jurisdiction. It pointed out that at Mr Lin has been represented all times since the first case conference in September 2003.

9 AIA cited six particular circumstances that together justify the Tribunal departing from the general rule about costs.

10 The first of these, was Mr Lin’s failure to comply with directions, including directions made on:

(a) 30 October 2003, including a failure to file the applicant's evidence by 8 December 2003 as directed,

(b) 19 February 2004, including a failure to file the applicant's evidence by 11 March 2004,

(c) 12 August 2004, including an order that the applicant file any additional material by 7 September 2004 and none was filed but significant extra evidence was filed some 18 months later.

(d) 22 December 2005, that Mr Lin file his submissions by 24 February 2006. The respondent consented to the applicant's request for an extension of time to file his submissions on 3 March 2006.

11 AIA asserted that Mr Lin’s repeated failure to comply with the Tribunal’s directions caused it significant inconvenience and meant that it incurred increased costs as a result of being forced to monitor the situation, repeatedly write to the Tribunal and Mr Lin’s solicitors and attend additional directions hearings.

12 The second particular circumstance was Mr Lin’s decision to issue a number of summonses requiring substantial documentation, when, according to AIA, none of the documentation produced supported his claims. This is obvious, AIA contended as, ‘[b]oth…claims were dismissed’.

13 The third circumstance was the decision to file substantial affidavit material that had to be read and responded to by the respondent before it was struck out by the Tribunal on the ground that it was irrelevant. AIA asserted that it should have been ‘patently obvious’ to Mr Lin’s legal representatives that much of this material was ‘not at all relevant’ and accordingly inadmissible.

14 The fourth circumstance cited was what AIA contended was the continually ‘evolving and changing’ case being put by Mr Lin, as evidenced by the repeated and substantial revision to the points of claim. This, AIA asserted, resulted in costs being thrown away as it meant that its legal representatives prepared and responded to one claim only to find that it had later been substantially recast. By way of example, AIA cited the decision announced late in the proceedings to abandon the claim of indirect discrimination.

15 The fifth particular circumstance cited by AIA was Mr Lin’s alleged failure to provide further sufficient evidence to sustain his claims of either race discrimination or victimisation despite a two-month adjournment from September to December 2005. AIA submitted that it had been put to considerable expense in attempting to understand the basis of a number of complex calculations, apparently central to Mr Lin’s claim, set out at Exhibits A3 and A4. AIA pointed out that Mr Lin disclosed in cross-examination that these calculations were largely based on documents that were not in evidence and which he went on to produce from a plastic bag.

16 The final particular circumstance relied on by AIA was the manner in which Mr Lin conducted himself in the witness box. It argued that this doubled the time he was required for cross-examination. AIA argued:

As a witness in his own proceedings, Mr Lin can best be described as unco-operative. He was rude with the Judicial Member and repeatedly refused her requests to co-operate with the process. His refusal was wilful and he obviously clearly understood that his way of conducting himself was not acceptable. If he was in any doubt, despite the patient remonstrations from the Judicial Member, there were further opportunities provided to him. In a break from usual practices, Counsel and the solicitor for the applicant were permitted to speak to him when he was being cross examined to advise him that his approach to giving evidence was unacceptable. This occurred on three occasions. This had a limited effect for a short period. However, it can be safely concluded that the change in his demeanour and level of co-operation exhibited after the discussions with his Counsel and his solicitor occurred as he well understood his performance was not acceptable.

17 AIA contends that these circumstances, when taken together, warrant an order for costs.

18 It is contended for Mr Lin that an order for costs is not warranted. He submitted that there was nothing to support the contention that his claim was an abuse of process, frivolous, vexatious or lacking in good faith. Rather, the outcome was in the nature of a contested hearing where the Tribunal could not be satisfied to the requisite standard that his claims were substantiated.

Decision

19 The issue for us to determine is whether the circumstances of this case warrant a departure from the presumption that each party ought to bear its own costs in proceedings.

20 We disagree with little of what has been put by AIA about Mr Lin’s conduct in these proceedings. Mr Lin repeatedly failed to comply with the Tribunal’s timetable. His conduct under cross-examination could at best be described as unhelpful. The characterisation of his complaints was general, inexact and forever changing. Much of the evidence on which he relied was ultimately irrelevant and that which was relevant was often provided in such a form that made it costly and time consuming to decipher. The example cited of the resources wasted by AIA in attempting to unravel the analysis provided in Exhibits A3 and A4 is a case in point.

21 Our concerns about Mr Lin’s conduct in these proceedings, in particular the delay caused by his repeated and often unexplained failure to comply with directions of the Tribunal and his failure to pursue his case ‘with the reasonable vigour the Tribunal is entitled to expect of litigants’ were set out in an interlocutory decision published in March 2005. (See Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59 at [27]) Yet, as AIA pointed out, this troubling pattern continued.

22 Nevertheless, we have concluded, despite the powerful arguments advanced for AIA, that the particular circumstances of this case do not warrant an order for costs. This has been a difficult decision given that AIA was put to unnecessary additional expense because of Mr Lin’s conduct.

23 In reaching that decision we have had regard to Mr Lin’s view of his complaints. We accept that he held the honest view that he had been ‘discriminated’ against in the colloquial sense of the word. While ultimately we found that his complaints were not substantiated, we noted that there was some evidence of different treatment afforded to Chinese and non–Chinese agents (See Lin v American International Assurance Company (Australia) Pty Ltd No.2 at [63] and [73]).

24 A complainant’s subjective view about their complaint is of course not determinative. It does not follow that because a complaint is bought in ‘good faith’ that the complainant will automatically be ‘shielded’ from the possibility of an adverse costs order. There will be circumstances for example where his or her conduct in proceedings will constitute an abuse of process even though the complaint itself could not be characterised as frivolous, vexatious or lacking in good faith.

25 Mr Lin’s conduct in these proceedings came perilously close, in our view, to constituting conduct of that type. The considerations are finely balanced, however, we have concluded that Mr Lin’s conduct was not so egregious that it warrants an order for costs.

Orders

The respondent’s application for costs is dismissed.