Rae v Commissioner of Police, New South Wales Police Force (No 3)

[2010] NSWADT 254

Set aside by Appeal:

CITATION:	Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Darryl Rae RESPONDENT Commissioner of Police, New South Wales Police Force
FILE NUMBER:	081047
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	29 July 2010
DATE OF DECISION:	26 October 2010
BEFORE:	Chesterman M - Deputy President
CATCHWORDS:	Costs – Anti-Discrimination Act 1997 –summary dismissal of part of complaint – withdrawal by applicant shortly before scheduled hearing – prolonging of proceedings – failure to comply with directions – rejection of offer of settlement
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) AT v Commissioner of Police [2010] NSWCA 131 Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226 Haas v Hosking (No 2) [2010] NSWADT 203 Jenkins v YMCA of Great Lakes Inc t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 Lal v Department of Transport and Infrastructure [2010] NSWADTAP 34 Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 520 MT v AA (No 2) (EOD) [2010] ADTAP 28 Murtough v NSW Bar Association [2008] NSWADT 166 Nawi No 3 Pty Ltd & Ors v ING Management Ltd [2005] NSWADT 235 O’Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188 Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183 Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 Tu v University of Sydney [2002] NSWADTAP 19 Tu v University of Sydney (No 2) [2002] NSWADTAP 25 Tu v University of Sydney [2003] NSWCA 170
REPRESENTATION:	APPLICANT In person RESPONDENT V Andersen, solicitor
ORDERS:	1.The Applicant is to pay the costs of the Respondent of and incidental to these proceedings, except for the costs of and incidental to the hearing conducted on 12 June 2009 2. These costs are to be paid as agreed or as assessed under the Legal Profession Act 2004.

REASONS FOR DECISION

1 This decision relates to an application by the Respondent, the Commissioner of Police (‘the Commissioner’), for an order that the Applicant, Mr Darryl Rae, should pay all of the Commissioner’s costs in these proceedings, which were instituted by Mr Rae under the Anti-Discrimination Act 1977 (hereafter ‘the AD Act’). Having first been made subject to partial dismissal under section 102 of the AD Act, the proceedings were wholly dismissed following a communication by Mr Rae to the Tribunal and to the Commissioner, in circumstances outlined below, that it was ‘his intention to withdraw from this matter’.

2 As this question of costs follows on from the summary dismissal of proceedings in the Tribunal, it may properly be determined by myself, sitting alone: see section 24A (1)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

3 Henry Davis York, who are the Commissioner’s solicitors in these proceedings, filed the Commissioner’s application for costs on 9 June 2010. In directions given to the parties by a letter dated 16 June 2010, the Tribunal stipulated (a) that the Commissioner should file and serve supporting submissions by 8 July 2010, (b) that Mr Rae should file and serve submissions in response by 29 July 2010 and (c) that the question of costs would be determined ‘on the papers’: that is to say, without any hearing being conducted. This procedure is authorised by section 76 of the ADT Act.

4 The filing of the Commissioner’s submissions, with an accompanying ‘tender bundle’ of copied documents, was completed by 9 July 2010. Mr Rae filed submissions in response on 29 July 2010.

5 In a letter to the Registrar dated 30 July 2010, Henry Davis York maintained that it was important for the Tribunal to be aware of a number of ‘significant factual errors’ in Mr Rae’s submissions. In a letter to the Registrar dated 2 August 2010, Mr Rae contended that the Tribunal’s directions did not permit the filing of further submissions and that in the absence of any application for permission the Tribunal should not take account of any such submissions. In a further letter to the Registrar dated 6 August 2010, however, Henry Davis York identified, giving reasons, what were claimed to be the errors in Mr Rae’s submissions.

6 I have determined that since the question of leave to file additional submissions was not canvassed before me, I should not take into account the matters raised in Henry Davis York’s letters of 30 July and 6 August 2010. My decision on the Commissioner’s application for costs is based on the material that the parties filed in compliance with the directions given on 16 June 2010.

Procedural history

7 In these proceedings, Mr Rae sought remedies under the AD Act for harm caused to him by the alleged misconduct of a number of officers of the New South Wales Police Force. At different times, as many as 23 officers were named. Mr Rae claimed that the Commissioner was vicariously liable for this misconduct.

8 On 28 March 2007, he lodged a complaint about these matters with the Anti-Discrimination Board (‘the Board’). By a letter dated 24 April 2008, following investigation of the complaint by the Board and an unsuccessful attempt to resolve it by conciliation, the President of the Board (‘the President’) referred it to the Tribunal. The accompanying Report by the President included the Board’s summary of the issues raised by the complaint and copies of the Board’s correspondence with Mr Rae (including his initial letter of complaint) and with the Commissioner.

9 Many relevant aspects of Mr Rae’s complaint, as put before the Board and the Tribunal, and of the subsequent course of the proceedings in the Tribunal are outlined in a lengthy passage (paragraphs [4] to [66]) of a decision given by me on 5 February 2010 (Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36). In that decision (hereafter ‘the strike-out decision’), I allowed in part an application by the Commissioner, made on 17 September 2009, for an order under section 102 of the AD Act striking out Mr Rae’s complaint. To the extent necessary for present purposes, the grounds of my decision are outlined below.

10 I will not repeat here what is set out in paragraphs [4] to [66] of the strike-out decision, but will treat them as forming part of the present decision.

11 Order 1 made in the strike-out decision was to the effect that Mr Rae’s complaint under the AD Act was dismissed under section 102, except in relation to the following:-

(a) His claims of unlawful racial vilification based on statements allegedly made (i) by Sergeant Enchelmaier at Coffs Harbour Police Station on 6 January 2007 and (ii) by Inspector Carey and Superintendent Kenny at or near Tweed Heads Police Station on 3 March 2007.
(b) His claims of unlawful discrimination on the ground of race and of victimisation based on the alleged conduct of Sergeant Enchelmaier, Inspector Carey, Superintendent Kenny, Detective Sergeant Burton and Senior Constable Goodall.

12 Orders 2 and 3 were in the following terms:-

2. The Respondent is to file and serve Points of Defence in response to the complaint, as amended by Order 1, on or before 3 March 2010.

3. The proceedings are set down for a further case conference on 10 March 2010 at 12 noon, for the purpose of fixing a time and venue for the hearing of the complaint.

13 On 3 March 2010, the Commissioner filed Points of Defence.

14 At a case conference conducted by Magistrate Hennessy, Deputy President, on 10 March 2010, Mr Rae, appearing by telephone, stated that he had filed between 12 and 15 witness statements. In her file-note relating to the conference, however, Deputy President Hennessy recorded a finding that the only statement by a witness other than Mr Rae that Mr Rae had filed or served was an undated statement by Mr Deryck Francis (this statement is described in the strike-out decision at [57]).

15 Deputy President Hennessy set out the following timetable at the case conference on 10 March 2010:-

1. By 31 March 2010 Applicant to file and serve by post (1 original and 3 copies) any statements of other evidence on which he intends to rely.

2. By 12 May 2010 Respondent to file and serve by post (1 original and 3 copies) any statements of other evidence on which they intend to rely.

3. Hearing set down for Lismore on 2, 3 & 4 June.

16 In addition, Deputy President Hennessy directed Mr Rae to provide Mr Francis’s address to the Tribunal and to the Commissioner by 31 March 2010 and advised him as follows: (a) only those witnesses whose statements had been filed in accordance with the Tribunal’s directions would be permitted to give oral evidence at the hearing: (b) both parties required that any witness whose statement had been filed and served should be available for cross-examination; and (c) if any witnesses were not willing to attend voluntarily, the party calling them would have to apply to the Tribunal for a summons to compel their attendance.

17 On 29 March 2010, Mr Rae served on Henry Davis York copies of unsworn statements (each comprising one or two pages) by six witnesses, together with a covering letter. They had various dates within the months of March, April and May 2007. For five of these witnesses, the only address appearing on the statement was a post box. For the sixth witness, an incomplete address, which appeared to be a residential address, was supplied. Mr Rae filed these six statements on 31 March 2010.

18 The correspondence that I will now describe formed part of the ‘tender bundle’ accompanying the Commissioner’s submissions on costs (see [4] above). All the dates mentioned are in 2010 unless otherwise indicated.

19 In a letter dated 30 March to Mr Rae, Henry Davis York acknowledged receipt of the six witness statements and asked whether these statements, along with those made by him and by Mr Francis, constituted all the evidence on which he would rely at the hearing. They also enclosed a copy of the directions given by Deputy President Hennessy at the case conference and pointed out that he had not yet complied with the direction to notify both the Tribunal and the Commissioner of Mr Francis’s address on or before 31 March.

20 In a letter dated 11 May to Mr Rae, Henry Davis York pointed out that, contrary to a statement made by him in his letter of 29 March, he had not applied to the Tribunal for summonses to compel his witnesses to attend the hearing. Henry Davis York also stated that they had themselves written to the witnesses (except Mr Francis), notifying them that they were required to attend for cross-examination. They added that what appeared to be a residential address on one of the statements was incomplete. Finally they asked Mr Rae to forward to Mr Francis a letter notifying him of the time, date and venue of the hearing and requiring him to attend for cross-examination.

21 In a letter dated 11 May to the Registrar (indicating that a copy had been sent to Henry Davis York), Mr Rae alleged that one of the police officers who had been ‘committed to trial’ had contacted two of the witnesses that he proposed to call and had attempted to ‘badger or coerce’ them.

22 On 12 May, Henry Davis York filed and served witness statements sworn by four of the five officers named in Order 1 in the strike-out decision (see [11] above). A statement by the fifth officer was filed on 19 May. There were objections by Mr Rae to the filing of this statement, on grounds of lateness. Each of the five statements included a denial by the witness of the allegations of improper conduct made against him by Mr Rae.

23 In a letter dated 21 May to Mr Rae, Henry Davis York stated that he had now been served with the Commissioner’s evidence in the proceedings. They went on to contend that, for various reasons set out in the letter, Mr Rae’s claims in the proceedings were ‘entirely false’ and ‘vexatious’ and had ‘no tenable basis in fact or law’. The reasons that they advanced included a statement that two of the letters that they had recently sent to Mr Rae’s witnesses had been returned undelivered and marked ‘return to sender’. They foreshadowed including in their arguments before the Tribunal a submission that the witnesses might not exist. In this letter, Henry Davis York also indicated that if the Tribunal dismissed Mr Rae’s complaint the Commissioner would apply for a costs order under section 110 of the AD Act and section 88 of the ADT Act (copies of these sections were enclosed with the letter). They added, however, that if Mr Rae withdrew his complaint on or before 28 May the Commissioner would not make any claim for costs incurred up to that date.

24 In an email message sent to Henry Davis York on 23 May, Mr Rae rejected what he described as the Commissioner’s ‘offer of withdrawal’, stating that he was ‘prepared to proceed with this trial in the Tribunal’ and was confident of success. He indicated that the reason why two of Henry Davis York’s letters to his witnesses had been returned undelivered was that the witnesses concerned had changed their places of employment. He maintained also that he was ‘currently under no obligation to supply their new address’.

25 In this email message, Mr Rae also asserted that he was aware of the ‘discipline and complaints history’ of the five police officers who had been ‘committed to stand trial’ and that a ‘number of these officers’ had ‘an extensive complaints history involving racial issues’. He then put forward a settlement proposal, claiming that if his allegations against these officers were sustained, they would face disciplinary and criminal charges, possibly resulting in custodial sentences and the termination of their careers in the police force, and the Commissioner and the Police Force might be the subject of further civil proceedings. He added that he had invited a number of journalists to attend the hearing.

26 The terms of Mr Rae’s settlement offer were that he would withdraw his complaint and would make no claim for costs if the following conditions were met: (a) a letter of apology or regret was issued; (b) the officers concerned attended cultural awareness training undertaken by an accredited Indigenous training group; (c) the Commissioner paid an agreed amount of compensation; and (d) the terms of the settlement remained confidential. He indicated that the offer would remain open until 5 p.m. on Wednesday 26 May, as it was his intention to ‘fully brief our (sic) barrister on Thursday 27 May 2010, therefore allowing him to make his final preparations to run his case’.

27 In a further email message to Henry Davis York, sent at 9.14 p.m. on 26 May, Mr Rae stated that since Henry Davis York had failed to reply to his settlement proposal by the stipulated deadline, he assumed that ‘this matter is now for trial’. He reiterated that he would be briefing a barrister on the following day.

28 In a letter to Mr Rae sent by email on Thursday 27 May, Henry Davis York stated (a) that since he had not given any particulars of the quantum of damages sought by him they could not obtain instructions on this part of his settlement offer, (b) that the Commissioner rejected the other conditions contained in the offer and (c) that the Commissioner continued to deny strenuously his allegations of improper conduct by police officers.

29 In this letter, Henry Davis York also asked Mr Rae (a) to confirm that he had sent copies of the two letters that had been returned undelivered to the new addresses of the witnesses concerned and (b) to forward four letters, which Henry Davis York had sent to his other witnesses but had been returned undelivered, to their new addresses. Finally, Henry Davis York pointed out that he had not applied to the Tribunal for summonses to compel his witnesses to attend the hearing and asked him for the name and contact details of his barrister.

30 In an email reply sent to Ms Sheila Barry, who is a Senior Associate at Henry Davis York, on Thursday 27 May, Mr Rae stated that the amount of compensation that he claimed was $120,000, based on his understanding that the President of the Board had identified three ‘offences’ in his Report and that the maximum amount that the Tribunal could award for any ‘offence’ was $40,000. He said further that he was ‘sure’ that his barrister, who would be briefed that afternoon, would contact Henry Davis York ‘in due course’ and asked to be informed who would represent the Commissioner, adding in this connection that ‘this will be forwarded to the media correspondents’ who would be present. Finally he stated that it appeared that ‘we are still going for trial’ and that he looked forward to meeting with Ms Barry on 1 June.

31 In an email reply sent on 27 May, Ms Barry advised that she would be conducting the hearing on behalf of the Commissioner and that she would be accompanied by Mr Frank Gaha from the NSW Police Force’s Office of General Counsel. She pointed out that the date of commencement of the hearing was Wednesday 2 June, not 1 June. Her message concluded as follows: ‘As far as the respondent is concerned, unless you withdraw your claim, the hearing will be going ahead.’

32 In a short email message on 27 May, Mr Rae acknowledged receipt of this last message from Ms Barry.

33 At 9.28 a.m. on Monday 31 May, Mr Rae sent the following email message to Ms Barry at Henry Davis York:-

This is a notification that we will be withdrawing this action from the Administrative Decisions Tribunal, effective immediately therefore allowing us to list this matter on other jurisdictions, namely the Anti Discrimination Commission Queensland (ADCQ) for the Burton/Goodall incident (as the ADCQ has the authority to directly investigate and prosecute coupled with the fact that the incident took place under Queensland jurisdiction) and the other two incidents in the Federal Court as this will allow us to undertake action against the individual officer as well ( sic ) the Commissioner.

I have also ask ( sic ) the Member of Parliament to pursue the call for a Parliamentary Enquiry into the police investigation process (where in this case we have the same officer investigating themselves or had a subordinate do so) on which I have no doubt that we may hear more of this matter in the media.

The ADT will been ( sic ) notified of the Notification to Withdraw.

34 At 9.46 a.m. on 31 May, Mr Rae sent the following email message to the Registrar of the Tribunal: ‘This is notification that it is our intention to withdraw from this matter, effective immediately, to pursue this matter within other jurisdictions.’

35 In an email message sent to Mr Rae at 10.06 a.m., Ms Barry stated that the Registry had just advised her by telephone that it had not heard from Mr Rae. She added: ‘Unless you notify the ADT that you are withdrawing, we will continue our preparation for the hearing (and therefore continue to incur costs).’

36 In an email reply to Ms Barry sent at 10.25 a.m., Mr Rae forwarded a copy of his email message to the Registry. He added: ‘As for the other jurisdictions the relevant paperwork is now being drafted and will be served accordingly.’

37 On 30 June, following due notice to the parties, Deputy President Hennessy made an order in chambers that Mr Rae’s complaint, in so far as it remained on foot after the strike-out decision, should be dismissed, on the ground that it had been withdrawn. The parties were given advance notice, but did not appear.

General principles regarding costs

38 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 ADT Act. So far as is relevant here, section 88 provides:-

(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.

39 This current or ‘new’ version of section 88, in which the criterion of ‘fairness’ stated and elaborated in subsection (1A) determines whether costs should be awarded, replaced an earlier or ‘old’ version of the section in which the criterion was that there should be ‘special circumstances warranting an award of costs’. The ‘new’ version became operative on 1 January 2009. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 (a case decided under the Retail Leases Act 1994), the Tribunal stated at [72]:-

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.

40 Also on 1 January 2009, an earlier version of section 110 of the AD Act was replaced by the current provision stating that costs in proceedings under this Act are to be regulated by section 88 of the ADT Act. Under the earlier version of section 110, the starting-point was a principle that the parties should pay their costs, but the Tribunal was empowered to make a costs order if there were circumstances justifying such an order. It was recognised that this test broadly resembled the criterion of ‘special circumstances’ in the ‘old’ version of section 88. In Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226 at [15], a case brought under the AD Act, the Tribunal made this observation (contrasting significantly with the dictum quoted in the preceding paragraph) about the effect of the earlier version of section 110:-

15 Costs orders are rarely made against unsuccessful applicants in anti-discrimination matters. The Appeal Panel observed in Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [42] 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.

41 In Haas v Hosking (No 2) [2010] NSWADT 203 at [30 – 36] and [38], the Tribunal said:-

30 The current version of section 110 [of the AD Act] was considered by the Appeal Panel in MT’s case [ MT v AA (No 2) (EOD) [2010] ADTAP 28]. The Panel observed [at 4-5]:

‘4 …. There is no issue of statutory construction in these proceedings which would give rise to a beneficial interpretation [of section 110] 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, … 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].’

31 In AT v Commissioner of Police [2010] NSWCA 131, the Court of Appeal considered the provisions of section 88, in relation to proceedings which had been conducted at first instance in the Tribunal’s General Division. In that case, the Court of Appeal ordered that the Commissioner of Police pay the applicant’s costs of, inter alia, a successful application at first instance. Basten JA said [at 33]:

‘33 That approach [of ordering the Commissioner of Police to bear the applicant’s costs of a successful application for review] does not diminish 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. 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 Tribunal Act.’

32 His Honour had earlier observed [at 30]:

‘30 There will, as the Chief Justice [in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150] recognised … be cases in which it may be appropriate for this Court to defer to the specialist court or tribunal, on the basis that it will have a better understanding of the possible consequences, within its own jurisdiction, of the exercise of the power to award costs.’


33 Though His Honour was not there specifically referring to the Equal Opportunity Division of this Tribunal, his remarks are consistent with the view that specialist jurisdictions of that nature are often well placed, within the confines of their statutory powers and discretions, to identify factors relevant to the award of costs.

34 Having regard to these observations of the Court of Appeal and of the Tribunal, it is appropriate in this case to take into account the fact that the proceedings were brought in the latter’s Equal Opportunity Division, and were not proceedings of a commercial character.

35 In Murtough v NSW Bar Association [2008] NSWADT 166, Deputy President Britton, sitting in the Equal Opportunity Division, observed at [27]:

‘A determination of the question whether costs should be awarded requires a balance to be struck between the “chilling effect” of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings.’


36 The learned Deputy President was there considering section 110 in it previous form, but as the general rule that costs do not follow the event is preserved in the current form of section 88(1) of the Administrative Decisions Tribunal Act 1997, her comments apply equally to its present form.

38 In exercising its discretion under section 88(1A)(e) to take into account ‘any other matter that the Tribunal considers relevant’, it is proper for the Tribunal to take into account the fact that proceedings are bought in its Equal Opportunity Division, that it is a human rights jurisdiction, the public benefit that such a jurisdiction provides, and the potential ‘chilling effect’ of too readily making costs orders against an unsuccessful complainant. Those considerations, of course, may not be entertained in isolation. They must be weighed together with the factors listed in section 88(1A). The aim of the weighing process is to determine whether the imposition of a costs order would be ‘fair’. The previous practice of refraining from making costs orders except where there has been an abuse of process - in the sense that the complainant acted frivolously, vexatiously or without good faith ( Tu’s case [at 42]) - or where special circumstances are demonstrated ([ O’Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188 [at 26]]) has been displaced by the provisions of section 88 as they now stand.

42 Further authorities on the interpretation and application of section 88 are outlined below.

The Commissioner’s submissions

43 The grounds on which Ms Andersen of Henry Davis York argued that Mr Rae should pay all the costs incurred by the Commissioner can usefully be summarised under four headings.

44 Failure to comply with directions, notably directions to provide particulars. Ms Andersen maintained that over a period of almost three years Mr Rae failed to provide particulars of his complaint, in spite of requests made by the Board and directions to do so being given by the Tribunal. In support of this contention, Ms Andersen relied in particular on passages in two decisions given by me earlier in these proceedings.

45 The first of these decisions (‘the summons decision’) related to objections raised by the Commissioner to (a) permission being given to Mr Rae to inspect documents that the Commissioner had produced to the Tribunal and (b) the terms of a summons to produce documents, addressed to the Commissioner, that Mr Rae had requested the Tribunal to issue. In a decision delivered on 13 July 2009 (Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183), I upheld these objections in part, while also granting leave to Mr Rae to inspect some of the produced documents.

46 In the summons decision at [48 – 49], I made the following observations, to which Ms Andersen referred in her submissions:-

48… as Mr Seck [counsel for the Commissioner] emphasised strongly, the material filed by Mr Rae falls far short of identifying adequately the factual basis of his claim that the numerous instances of misconduct by police officers that he alleges were racially motivated…

49 I agree with Mr Seck that in the material filed by Mr Rae relating to the provision of ‘services’, neither the existence of what he called ‘racial motivation’ on the part of the relevant police officers nor the facts that might establish such motivation have been properly alleged. As Mr Rae more or less acknowledged at the hearing, all that the material conveys is an implicit allegation of racial motivation.

47 Secondly, in the strike-out decision, the ground of primary significance on which I summarily dismissed a substantial component of Mr Rae’s complaint was that through not providing particulars as requested and directed, he had shown, as I said at [116], ‘an inability or unwillingness to co-operate’ with the Tribunal and the Commissioner in ‘having the matter ready for trial within an acceptable period’ (I drew these phrases from the judgment of Wilcox and Gummow JJ in Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 520 at [36].) At [112 – 113], I summarised as follows the circumstances of his refusal or failure to provide particulars:-

112 In the present case, as pointed out by Ms Andersen in her submissions, Mr Rae received two requests from the Board (on 10 April and 13 June 2007) to supply further particulars. He received two such requests from Henry Davis York (on 22 July and 12 September 2008). At the first, second and sixth of the case conferences (held on 30 May 2008, 6 August 2008 and 23 September 2009 respectively), the Tribunal directed that he supply further particulars. The period during which these requests and directions were conveyed to him amounted to more than 30 months.

113 While Mr Rae, in response to these requests and directions, has given particulars of some aspects of his case, he has stated, in relation to other aspects, that the necessary particulars are available to the Commissioner (generally in police files or electronic recordings that he has claimed to exist). To make a statement of this type does not discharge his obligation, as the moving party in these proceedings, to advise the Commissioner of the facts and circumstances on which his case rests. On one occasion (see [31] above) he expressly rejected a request from Henry Davis York to supply further particulars. On two subsequent occasions he was however told by the Tribunal that further particulars were required (see [34] and [55]).

48 Ms Andersen pointed out also that at an early stage in the proceedings – namely in a letter to Mr Rae dated 12 September 2008 referring to prior requests and directions to supply particulars – Henry Davis York expressly drew to his attention the Commissioner’s concerns that his failure or refusal to particularise his complaint properly caused unnecessary costs to be incurred. In this letter, Henry Davis York referred to three paragraphs of the Tribunal’s Practice Note on Costs, which corresponded to paragraphs (a)(vi), (b) and (c) of what is now section 88(1A) of the ADT Act, and warned Mr Rae that the Commissioner reserved the right to rely on the letter’s contents in any future application for costs.

49 A further direction by the Tribunal that Mr Rae failed or refused to obey was, as Ms Andersen pointed out, the direction by Deputy President Hennessy on 10 March 2010 to provide Mr Francis’s address to the Tribunal and the Commissioner by 31 March 2010.

50 Pursuing a complaint that had no tenable basis in fact or in law. The aspects of the case on which Ms Andersen relied in this context included the following: (a) the effect of the strike-out decision had been to dismiss summarily significant aspects of Mr Rae’s complaint, reducing the number of police officers against whom his allegations could be pursued from 23 to five; (b) the six unsworn witness statements that he had filed on 31 March 2010, purporting to corroborate his own testimony, not only were unconvincing in their contents but would not (it seemed) have been admitted into evidence, because he had not taken out summonses to secure the attendance of the witnesses and Henry Davis York’s letters notifying them of the hearing had been returned undelivered; (c) the five sworn witness statements filed by the Commissioner contained emphatic denials of Mr Rae’s allegations and were accompanied by documentation supporting these denials; (d) the allegations made by Mr Rae were of a very serious nature; (e) the Commissioner’s witnesses asserted that Mr Rae did not exhibit any of the physical characteristics typically associated with a man who identified himself as an indigenous Australian; (f) and since Mr Rae never appeared in person at any of the proceedings in the Tribunal, it was never possible for the Tribunal to form its own opinion on this question.

51 Unreasonable conduct causing the proceedings to be unnecessarily prolonged. A step of major significance taken by Mr Rae, on which Ms Andersen placed substantial reliance in her submissions, was his withdrawal of his complaint only two days before the hearing was scheduled to commence. Ms Andersen argued that the explanation given at the time by Mr Rae for this withdrawal – namely, that he intended to institute proceedings relating to the subject-matter of his complaint in other forums – was not a reasonable one. She added that as at the date when she signed them (8 July 2010) the Commissioner was not aware of any such proceedings having been instituted.

52 Ms Andersen also asserted in her submissions that although Mr Rae had sought access to documents that the Commissioner had produced to the Tribunal and had been granted permission to inspect some of these documents in the summons decision (see [45] above), the Registry had advised her that there was no record of his having actually attended the Tribunal to conduct any such inspection.

53 In addition, Ms Andersen relied on (a) Mr Rae’s failure or refusal, as outlined above at [44 – 48], to comply with requests and directions to provide particulars and (b) the unnecessary length and prolixity of the material filed by him, as constituting unreasonable conduct causing the proceedings to be unnecessarily prolonged.

54 Rejection of settlement offer. Ms Andersen submitted that a further reason why Mr Rae should be ordered to pay the Commissioner’s costs was that he had rejected, despite being made fully aware of the consequences of rejection, the Commissioner’s offer of 21 May 2010 to decline to make any claim for costs if Mr Rae withdrew his complaint on or before 28 May 2010.

55 Relevant paragraphs within section 88(1A). Ms Andersen argued that it would be ‘fair’, within the meaning of section 88(1A) of the ADT Act, to order that Mr Rae pay all of the Commissioner’s costs, on the basis that his conduct of the proceedings fell within paragraphs (a)(i), (a)(v), (a)(vi), (c) and (d) of that provision.

Mr Rae’s submissions

56 In contending that the Commissioner’s application for costs should be dismissed, Mr Rae made a number of allegations regarding the proceedings, of which the following six were the most significant.

57 First, the Board, after investigating his complaint, had rejected claims by the Commissioner that there was no merit in it and had concluded that there was ‘more than enough evidence to warrant a full and thorough investigation’. It had determined that the Commissioner’s initial inquiries into the matters raised by him had been biased and inadequate and had failed to adhere to the procedures and policies of the NSW Police Force. It had ascertained from Mr Francis that the Police had never contacted him in the course of these inquiries. It had also conducted previous investigations of the activities of a number of the officers about whom Mr Rae had complained. The Commissioner had failed to respond to the Board’s request to provide particular documents and appear for questioning. The reason why the President had referred the complaint to the Tribunal was that the Commissioner had not accepted the Board’s conclusions.

58 Secondly, during the period of about 30 months since this referral, the Tribunal had heard and dismissed, wholly or in part, ‘numerous applications’ by the Commissioner, including ‘a number of applications’ for the matter to be dismissed. It had determined that the Commissioner’s purpose in making a number of these applications was to attempt ‘to remove itself from the real issue’, which was ‘discrimination’, and that ‘the applications were a time wasting tactic’. Furthermore, the Commissioner had failed to comply with directions by the Tribunal to file evidence and supply other information within a specified time.

59 Thirdly, before the scheduled hearing dates, one of the police officers whose conduct would be in issue at the hearing had contacted two of Mr Rae’s witnesses and had ‘made threats against them if they appeared’. Mr Rae had advised Ms Barry about these events by telephone, but there was no evidence that she had done anything to address them. The making of these threats was, he said, one of the two reasons why he withdrew from the Tribunal proceedings.

60 Fourthly, Mr Rae had received legal advice to the effect that the Tribunal did not have jurisdiction to deal with one of the incidents on which his case at the hearing would have depended, because it occurred in Queensland. This constituted the other reason why he withdrew from the proceedings. He had, he said, ‘presented’ the matter to ‘the appropriate authority, which on the advice given has the relevant jurisdiction to hear matters of discrimination that happens anywhere in the Commonwealth of Australia’.

61 Fifthly, the Commissioner and Henry Davis York had employed improper tactics, in failing to disclose to the Tribunal the offer made to Mr Rae on 21 May 2010 to settle the matter and in failing to reply to telephone calls that he had made to Henry Davis York’s office between 21 and 31 May in order to seek further discussions regarding the offer.

62 Sixthly, because the hearing did not take in fact place, the incurring of ‘significant cost’ referred to in Henry Davis York’s letter of 21 May 2010 did not take place either.

63 Finally, Mr Rae submitted that there was ‘no valid precedent’ to support the Commissioner’s claim for costs, since during the last five years he had not found any case in which the Tribunal had made any costs order ‘against the opposing party’. Its only orders had been that the parties should pay their own costs, which was the appropriate order in this case.

Discussion

64 The implications of late withdrawal of proceedings. In resolving the question whether it would be ‘fair’, within the meaning of section 88(1A) of the ADT Act, to make a costs order against Mr Rae (whether relating to the whole or to some part only of the Commissioner’s costs), I have found it useful to focus initially on what I have described (at [51] above) as ‘a step of major significance taken by Mr Rae’: namely, his withdrawal of his complaint only two days before the hearing was scheduled to commence.

65 In three decisions made under earlier costs provisions of the AD Act, the Tribunal has dealt with the question whether, and if so to what extent, costs should be awarded to a respondent on the ground that the applicant has withdrawn his or her complaint before the hearing or that the complaint has been dismissed for want of prosecution.

66 First, in Tu v University of Sydney (No 2) [2002] NSWADTAP 25, the Appeal Panel awarded to the respondent part of its costs of first instance proceedings that had been dismissed for want of prosecution. The applicant in racial discrimination proceedings, having failed on grounds of illness to appear on the first two of the three days of the hearing, stated on the third day that he did not wish to pursue them further until he had appealed against a ruling that the case could proceed with a different presiding member. After he and his counsel had left the hearing, the respondent was successful in its application for dismissal, which it had previously foreshadowed.

67 The applicant appealed to the Appeal Panel against the ruling to which he had objected. Having dismissed this appeal (Tu v University of Sydney [2002] NSWADTAP 19), the Panel subsequently gave consideration to the question of the costs at first instance. It pointed out (see Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [36 – 38]) that because the proceedings had been summarily dismissed, the costs associated with them were governed by a provision of the AD Act (section 111(2)) that did not require that there must be ‘circumstances that justify’ a costs order. It then stated:-

39 Nonetheless the proposition that the s 111(2) discretion should normally be exercised in favour of the successful party has not been fully embraced in the equal opportunity division. Equal opportunity tribunals have referred to the special character of the jurisdiction, which seeks to protect and promote the observance of fundamental human rights. For example in Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) it was said that the human rights protection objective ‘might be thwarted if complainants were to be discouraged from pursuing claims before the Tribunal due to fear of the amounts that may be awarded against them for inter alia legal costs if unsuccessful on those claims’.

68 At [42], the Panel made the observation, already quoted in this decision, 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’.

69 At [49], the Panel held that there had been ‘a substantial failure on the applicant’s part to co-operate with directions and respond to them in a timely way’ and that this failure ‘contributed significantly’ to the costs of the respondent.

70 Despite this aspect of the applicant’s conduct and his decision to withdraw from the proceedings, the Panel’s costs order did not extend to all the respondent’s costs. It limited the order to costs of the period following ‘the point at which the delay became so unreasonable as to warrant intervention by way of a costs order’ (see the decision at [59]). This point of time was, it should be added, some 18 months after the proceedings had commenced in the Tribunal.

71 The Panel explained this outcome in the following passage (at [58]):-

58 For the reasons given, we consider that some caution should be shown in the equal opportunity jurisdiction in exposing the complainant to the whole of the respondent’s costs even where the complaint has been summarily dismissed. Some account also needs to be taken of the commonly-unequal positions in terms of access to legal resources that arises as between applicants and respondents. Inequality in relation to legal resources manifested itself in this case, and the applicant sought to obtain legal aid. Regrettably, legal aid is strictly rationed; and there must come a point at which the case must proceed rather than let it wait any longer.

72 The applicant appealed successfully to the Court of Appeal against the Tribunal’s ruling that the hearing of the case could proceed on the third day with a different presiding member. In its judgment (Tu v University of Sydney [2003] NSWCA 170), the Court set aside all the Appeal Panel’s orders, including its costs orders. But it did not say anything to suggest that the Panel’s approach to the question of costs was incorrect.

73 Secondly, in Murtough v NSW Bar Association [2008] NSWADT 166, the applicant, who was a barrister, alleged discrimination on the grounds of disability. The Board referred his complaint to the Tribunal on 30 April 2007. He applied shortly afterwards for an order that the respondent produce certain documents. At a case conference on 12 July 2007, he was directed to file and serve an amended list of the documents sought, together with an application (previously foreshadowed) for interim relief, amended points of claim and all the evidence on which he intended to rely. He did not comply with these directions, nor with subsequent directions to file points of claim and evidence, and he did not attend either a hearing scheduled for 31 July 2007 or a directions hearing scheduled for 3 December 2007. At this directions hearing, the respondent successfully applied for his complaint to be dismissed for want of prosecution and made an application for its costs.

74 In its decision on the costs of the proceedings, the Tribunal observed (Murtough v NSW Bar Association [2008] NSWADT 166 at [20]) that under the provision then applying (section 110 of the AD Act) a costs order could only be made if there were circumstances justifying it. At [27], in the passage quoted above at [41], it explained why the presumption in section 110(1) that the parties pay their own costs ‘should not be disturbed without good cause’. It then held that a costs order was justified in this case, notably (at [30]) because there had been a pattern in the applicant’s conduct of ‘making repeated unexplained defaults in complying with directions, which had at times been made at his own request; a multiplication of requests for ‘urgent’ information, the special urgency of which was not apparent but which required those dealing with them on behalf of the Bar Association to divert their attention to them, incurring costs as a result; and repeated undirected requests for further and better particulars of the defence’.

75 The Tribunal did not, however, make an order relating to all of the respondent’s costs. It gave this explanation for limiting the scope of its order at [32 – 33]:-

32 Once it is demonstrated that ‘there are circumstances that justify’ the Tribunal making an order for costs, the Tribunal has a wide and unfettered discretion and may ‘make such orders as it thinks fit’. In my view, it would be counter to the general policy of the Act for costs to be awarded in this case for the whole of the proceedings. Although Mr Murtough’s application was dismissed for want of prosecution, there has been no hearing on the merits. Whether this was a hopeless case is impossible to tell and would be, in any event, inappropriate to comment on. There is nothing to suggest that the proceedings constituted an abuse of process or that Mr Murtough deliberately misconducted himself for an ulterior motive. It is not clear to the Tribunal why Mr Murtough did not appear when required, nor why he failed to comply with directions. It is possible that these defaults were occasioned by illness or misadventure or a combination of factors. Given the importance he evidently attached to the proceedings, for obvious reason as his career as a barrister was at stake, his failure to maintain them is surprising.

33 He was entitled, when prosecuting his application, to request that summonses be issued to the respondent. Notwithstanding the ultimate dismissal of the proceedings, given the general statutory protection against costs orders, I am not persuaded that an order ought be made in respect of the costs associated with the summons.

76 The order that the Tribunal made related only to the respondent’s costs incurred (i) in complying with the directions made on 12 July 2007 (except in relation to the summons for production of documents), (ii) in respect of the directions hearing of 31 July 2007 and in complying with the directions made at that hearing and (iii) in respect of the directions hearing of 3 December 2007.

77 Thirdly, in Jenkins v YMCA of Great Lakes Inc t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335, a case of alleged racial vilification, the applicant withdrew his complaint some 14 months after it had been referred to the Tribunal. The reason that he gave was that he wished to take proceedings under federal anti-discrimination legislation. Six months earlier, he had foreshadowed that he might take such proceedings and at a subsequent case conference a Tribunal member had pointed out to him that if he wished to maintain concurrent proceedings the leave of the Tribunal would be required.

78 The Tribunal declined to make a costs order in the respondent’s behaviour. In deciding that there were not ‘circumstances justifying’ a costs order under section 110 of the AD Act (as it then stood), it relied, inter alia, on the decisions in Tu and Murtough. At [21], it stated, as the Tribunal had done in Murtough, that since there had been no hearing on the merits of the complaint, it could not accede to a submission by the respondent that the case was either lacking in substance or misconceived. At [26 – 30], it rejected an argument based on the applicant’s rejection of a settlement offer put forward by the respondent (this aspect of the decision is discussed further below). At [33], it held that a failure by the applicant to adhere to a timetable for filing material had not been ‘so severe, repeated or contumelious as to persuade the Tribunal to make an order for costs’ against him. At [39], it drew attention to the fact that withdrawal of the complaint had been foreshadowed some six months before it occurred. Its conclusion, stated at [40], was that ‘the combination of circumstances required to justify a costs order is lacking’.

79 It is useful here to draw attention to the rather different approach adopted in retail tenancy decisions under the ‘old’ version of section 88 of the ADT Act. In Nawi No 3 Pty Ltd & Ors v ING Management Ltd [2005] NSWADT 235, for instance, the Tribunal said at [21 – 24]:-

21 Amongst the various types of situation that have been held to constitute ‘special circumstances’ in retail leases cases, three are of particular relevance in the present case.

22 The first of these is where an unsuccessful claim or defence is found to have lacked any real prospect of success and therefore to have been unmeritorious.

23 The second is where a party has filed an application or sought to defend proceedings, thereby causing the opposing party to incur costs in preparing for litigation, then has withdrawn the application or the defence without any sufficient justification for so doing. In a number of decisions…this behaviour by a party has been held to constitute ‘special circumstances warranting an award of costs’.

24 The third, which is closely linked to the second, is where a party, without good cause, causes proceedings with respect to the same subject matter to be carried on both in this Tribunal and in another competent forum, then brings the Tribunal proceedings to an end…

80 I will mention also a recent decision under the ‘new’ version of section 88, given by the Appeal Panel in an appeal from the General Division. In Lal v Department of Transport and Infrastructure [2010] NSWADTAP 34, the Panel was told on the day when the appeal was to be heard that the appellant had decided to withdraw the appeal. In an ex tempore decision, it ordered the appellant to pay the costs of the respondent in obtaining legal representation for the hearing and for an earlier directions hearing.

81 In my opinion, the broad outcome of these decisions, read in conjunction with the cases outlined above at [40 – 41], is as follows. The withdrawal of proceedings under the AD Act by the applicant shortly before the scheduled hearing provides grounds for the making of a costs order against him or her under section 88(1A) of the ADT Act (in its current form) unless there are reasonable grounds justifying the withdrawal at such a late stage. This form of conduct by the applicant can properly be regarded as an instance of ‘prolonging unreasonably the time taken to complete the proceedings’ under paragraph (b) of section 88(1A). Alternatively, it should be treated, in the light of case law interpreting the earlier costs provisions, as a relevant consideration under paragraph (e). But by virtue of those particular features of proceedings under the AD Act on which the Tribunal in Tu, Murtough and Jenkins placed strong emphasis, it does not necessarily follow that the applicant should be ordered to pay all the costs of the respondent.

82 Were there reasonable grounds for Mr Rae’s withdrawal of his complaint? In his submissions, Mr Rae asserted that there were two reasons why he decided to withdraw the complaint.

83 The first of these was that according to Mr Rae a police officer had threatened two of his witnesses. He made this claim in a letter to the Registrar dated 11 May 2010 and in subsequent communications with Ms Barry. At no stage, however, did he provide any particulars of this very serious allegation or any evidence in support of it. In determining whether he had reasonable grounds for withdrawing his complaint, this unsubstantiated claim by him must be left wholly out of account.

84 The second reason advanced by Mr Rae was that he had been advised that because one of the incidents on which his case depended occurred in Queensland, the Tribunal did not have jurisdiction to deal with it. He added that he had in fact brought his case before an ‘appropriate authority’ possessing jurisdiction to deal with unlawful discrimination occurring anywhere in Australia.

85 In assessing the merits of this ground for withdrawing the complaint, it is important to consider carefully the impact of the strike-out decision. Relevant aspects of the alleged incident in Queensland were outlined in this decision in paragraphs [14] and [15]. What Mr Rae alleged was that two NSW police officers, Detective Sergeant Burton and Senior Constable Goodall, while visiting him at his workplace in Brisbane, used ‘racially abusive language’ towards him in the presence of a few witnesses. He alleged also that this abuse was recorded on CCTV. This claim by Mr Rae was referred to subsequently in the decision as ‘the Burton-Goodall allegations’.

86 In the strike-out decision at [105] and [128], I held that although Mr Rae had given sufficient particulars of the alleged abusive language, his claim that it amounted to unlawful racial vilification under section 20C of the AD Act was bound to fail as a matter of law. The reason that I gave (at [105]) was that, although witnesses were allegedly present and the language was allegedly recorded on CCTV, Mr Rae’s version of what happened did not involve any ‘public act’ such as section 20C requires. There was, I held, no ‘communication to the public’ or ‘conduct observable by the public’, within the meaning of the definition of ‘public act’ contained in section 20B.

87 On the other hand, I held, at [129 – 130], that the truth or otherwise of the Burton-Goodall allegations might be relevant to deciding whether a claim of racial discrimination under section 19 of the AD Act or victimisation under section 50 could be sustained against either or both of these officers. As I said at [130], they might help in substantiating a claim that the two officers in question treated Mr Rae less favourably on account of his indigenous background, or caused him ‘detriment’ (within the meaning of section 50) because he had previously complained of discriminatory conduct by NSW police officers. This ruling by me is reflected in paragraph (b) of Order 1 made in the strike-out decision (see [11] above).

88 As far as I am aware, neither the ADT Act nor associated case law indicates clearly whether the Tribunal could exercise jurisdiction over a claim of unlawful racial vilification based on a ‘public act’ occurring in a State other than New South Wales. Doubts about this question might well provide reasonable grounds for withdrawing such a claim from the Tribunal.

89 That, however, is not the question at issue here. In the strike-out decision, my dismissal of Mr Rae’s claim of vilification based on the Burton-Goodall allegations was based on other considerations. The fact that these allegations described conduct occurring in Queensland would not raise any jurisdictional obstacle to their forming part of a claim of unlawful racial discrimination or of victimisation based also on conduct occurring in New South Wales.

90 For these reasons, I do not consider that this second ground put forward by Mr Rae for withdrawing his complaint was a reasonable one.

91 There is also the matter of the timing of this withdrawal. If the Tribunal did indeed lack jurisdiction to a material extent and this defect of jurisdiction was not cured by the Commissioner’s failure to rely upon it in the proceedings leading to the strike-out decision, it would not follow that Mr Rae’s decision to withdraw his complaint just before the hearing was due to commence could be characterised as ‘reasonable’.

92 The ground on which I base this opinion is the simple fact that any shortfall in the Tribunal’s jurisdiction over Mr Rae’s complaint was present from the outset. It became more significant after the strike-out decision, because this removed from Mr Rae’s complaint a number of alleged instances of unlawful discrimination occurring in New South Wales. Yet he failed until as late as two days before the scheduled hearing to act upon the legal advice that he claimed to have received. In contrast to the applicant in Jenkins v YMCA of Great Lakes Inc t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335, he gave no earlier notification to the Commissioner or the Tribunal that since he had concerns about the scope of the Tribunal’s jurisdiction, he might wish to seek relief elsewhere than in the Tribunal. Indeed, just two working days before his email message of 31 May 2010 to Henry Davis York advising of the withdrawal of his complaint, he stated that ‘we are still going for trial’ (see [40] above).

93 I recognise that the considerations set out here are complex and legalistic, like many other aspects of this case, and that Mr Rae, as a self-represented applicant without legal qualifications, could not be expected to be able to deal with them in an expert manner. But on his own showing, it was not until just before the hearing that he engaged a barrister to assist him. To the extent that his delay in so doing contributed to his unreasonable delay in deciding to withdraw his complaint, he must bear the consequences.

94 For all these reasons, his late withdrawal of his complaint amounts, in my judgment, to conduct ‘prolonging unreasonably the time taken to complete the proceedings’ under paragraph (b) of section 88(1A) and provides grounds for a costs order under that subsection.

95 Ms Andersen’s submissions on costs included an assertion that, despite Mr Rae’s allegation in this email message that he would be instituting proceedings in Queensland and in the Federal Court, the Commissioner was not aware of any such proceedings having been instituted. In his submissions, Mr Rae stated that he had already taken steps of this nature. I do not need to determine the truth of this matter since it does not affect my ruling that both the grounds that he put forward for withdrawing his complaint and his delay in so doing were unreasonable, in the ways that I have indicated.

96 Failure to comply with the Tribunal’s directions. Ms Andersen’s submissions on this aspect of the Commissioner’s claim for costs are outlined above at [44 – 49]. They are principally based on events outlined in the summons decision and the strike-out decision.

97 Mr Rae’s submissions on this matter chiefly took the form of claiming that the Commissioner had engaged in similar conduct, in the course of both the investigation by the Board and the proceedings in the Tribunal.

98 I have reviewed the correspondence between the Board and the Commissioner during the Board’s investigation of Mr Rae’s complaint. This was annexed to the President’s report referring the complaint to the Tribunal. This correspondence contains nothing to support Mr Rae’s allegations (summarised above at [57]) regarding the Commissioner’s responses to the Board’s communications or the views formed by the Board about the matters alleged in the complaint. In the absence of other evidence supporting these allegations, they must be left out of account.

99 Contrary to Mr Rae’s allegations regarding the conduct of the Commissioner during the Tribunal proceedings (summarised above at [58]), the Tribunal has heard only one dismissal application brought by the Commissioner (which it substantially upheld in the strike-out decision) and one other interlocutory application (which it upheld in part, in the summons decision). There is no reason to believe that the Commissioner made these applications for any improper purpose. On one occasion, the Commissioner, having given due notice, was late in filing submissions (see the strike-out decision at [61 – 66]). On another occasion, it was late in filing a witness statement (see above at [22]). These instances of non-compliance with directions are insufficient to rebut the Commissioner’s claim that Mr Rae’s own non-compliance provides a ground for awarding costs against him.

100 In my judgment, the frequent failure by Mr Rae to comply with the Tribunal’s directions, notably in the matter of furnishing particulars, falls within the scope of paragraphs (a)(i) and (b) of section 88(1A) of the ADT Act, and provides grounds for a decision that it would be ‘fair’ to award costs against him.

Ms Andersen’s submissions on this matter are outlined above at [50]. Except in so far as he continued to assert the truth of his allegations against police officers, and also maintained that the Board had been satisfied that there was sufficient evidence to substantiate these allegations, Mr Rae did not respond specifically to the arguments put against him.

102 My conclusions on this matter are as follows. The basis of the strike-out decision was a ruling that many aspects of Mr Rae’s complaint had to be treated as having ‘no tenable basis’, either because he had consistently failed to provide proper particulars of them or because they were misconceived in law. In considering the question of costs, this must be given substantial weight, by virtue of paragraph (c) of section 88 (1A) of the ADT Act. Support for this view is furnished by the Tribunal’s recent decision in O’Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188: see in particular paragraphs [44] and [52].

103 As to the remaining aspects of the complaint, which were due to be tried at the hearing in June 2010, I acknowledge the force of Ms Andersen’s submission that the six unsworn witness statements that he filed, purporting to corroborate his own testimony, might not have been admitted into evidence because (it seemed) he had not tried to secure their attendance. But I agree with relevant observations of the Tribunal in Murtough v NSW Bar Association [2008] NSWADT 166 (quoted above at [75]) and in Jenkins v YMCA of Great Lakes Inc t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 (referred to at [78]). As there has been no hearing on the merits of what remained of Mr Rae’s complaint following the strike-out decision, I should not accede to a submission by the Commissioner that this part of his case was ‘untenable’.

104 The Commissioner’s settlement proposal. I do not agree with Ms Andersen’s submission that Mr Rae’s rejection of the Commissioner’s proposal conveyed in Henry Davis York’s letter of 21 May 2010 (see [23 – 24] above) provides grounds for awarding costs against him. My reason is that this proposal did not involve a genuine compromise of the claim made by Mr Rae. All that it offered was that if Mr Rae withdrew his claim within one week, the Commissioner would not seek costs.

105 In Jenkins v YMCA of Great Lakes Inc t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335, the applicant rejected a similar offer made by the respondent, then later (as outlined above) withdrew his complaint. In holding that this rejection of the offer did not provide grounds for ordering costs against him under section 110 of the AD Act (as it then stood), the Tribunal said (at [29]):-

29 The offer… was, in effect, an invitation to capitulate, rather than a true offer of compromise. Costs aside, it sought to obtain for the [respondent] the best result it could possibly have obtained, had it succeeded at the hearing. Given the presumption against costs orders enshrined in section 110(1), the element of compromise on costs was so slight as to be of little significance. Generally speaking, invitations to capitulate do not entitle the party making them to a more generous costs order than they would otherwise receive, even in jurisdictions where costs follow the event: Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353; Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358.

106 Claims that Mr Rae was ‘vexatious’ and ‘attempted to deceive’.

Through relying on subparagraphs (v) and (vi) of section 88(1A)(a) of the ADT Act, Ms Andersen implicitly raised the contentions that Mr Rae had been guilty of ‘attempting to deceive another party or the Tribunal’ and of ‘vexatiously conducting the proceedings’. She did not elaborate on these contentions to any significant extent.

107 While I agree with her characterisation of the material filed by Mr Rae as unnecessarily long and prolix, and with her claim that this caused the proceedings to be unnecessarily prolonged, the material before me does not, in my opinion, justify a finding that he sought to deceive another party or the Tribunal or that he conducted the proceedings vexatiously.

My conclusions

108 In my opinion, the Commissioner has succeeded in demonstrating that the presumption stated in subsection (1) of section 88 of the ADT Act – namely, that the parties should pay their own costs – should not apply to these proceedings and that it would instead be ‘fair’ to make a costs order against Mr Rae by virtue of three of the matters listed in the various paragraphs of subsection (1A). I am satisfied of the following: (1) Mr Rae ‘conducted the proceedings in a way that unnecessarily disadvantaged’ the respondent by failing more than once, without reasonable excuse, to comply with directions of the Tribunal (para (a)(i)); (2) he was responsible, notably by delaying until just before the hearing his decision to withdraw from the proceedings, for ‘prolonging unreasonably the time taken to complete’ them (para (b)); and (3) a substantial component of his complaint had ‘no tenable basis in fact or law’ (para (c)).

109 As foreshadowed earlier, the question remaining for determination is whether the order should embrace all, or only some part, of the Commissioner’s costs. As explained above at [40 – 41] and [66 – 79], a number of the decisions on costs that were made under ‘old’ provisions of the AD Act suggest strongly that unless there is a finding of ‘abuse of process’, only a partial costs order, at most, should be made. On the other hand, the Court of Appeal said in AT v Commissioner of Police [2010] NSWCA 131 at [33] that the criterion of ‘fairness’ in the ‘new’ provision on costs establishes ‘a relatively low hurdle for an applicant seeking an order’ because this criterion ‘will take into account the compensatory purpose of an award of costs, which will generally favour the successful party’.

110 After careful consideration, I have decided that except with regard to one preliminary hearing conducted in these proceedings, it would be ‘fair’, having regard to all the circumstances outlined above, to include all the costs incurred by the Commissioner in the order to be made against Mr Rae.

111 The preliminary hearing in question, which took place before me on 12 June 2009, related to objections made by the Commissioner to (a) permission being given to Mr Rae to inspect files that the Commissioner had produced to the Tribunal and (b) the breadth of a summons addressed to the Commissioner that Mr Rae had caused to be issued. In the ‘summons decision’, Mr Rae was successful, to a material extent, on the first of these questions: see above at [45].

112 As mentioned above at [52], Ms Andersen asserted in her submissions that, according to a member of the Registry staff, Mr Rae never attended the Registry after the summons decision in order to inspect the documents to which he had been granted access. It appears, however, from my own inquiries within the Registry that it cannot be confidently stated that a party given leave to inspect produced documents has not in fact inspected them. Because very many inspections of this nature take place within the precincts of the Tribunal, there is no consistent practice of recording their occurrence in the case file or elsewhere within the Registry.

113 If I were satisfied that Ms Andersen’s understanding of this matter was correct, I would agree with her that Mr Rae should be required to pay the Commissioner’s costs associated with the hearing on 12 June 2009. But since the position is otherwise and since Mr Rae was partially successful at that hearing, I consider that the order to be made against him should not extend to those costs. To exclude them is, it may be noted, broadly in line with the Tribunal’s decision in Murtough v NSW Bar Association [2008] NSWADT 166: see [75 – 76] above.

114 For the foregoing reasons, I order that the Applicant is to pay the costs of the Respondent of and incidental to these proceedings, except for the costs of and incidental to the hearing conducted on 12 June 2009. These costs are to be paid as agreed or as assessed under the Legal Profession Act 2004.