Rail Corporation of NSW v Dunne (EOD)

[2006] NSWADTAP 65

Appeal Panel - Internal

CITATION:	Rail Corporation of NSW v Dunne (EOD) [2006] NSWADTAP 65
PARTIES:	APPELLANT Rail Corporation of NSW RESPONDENT Monica Dunne
FILE NUMBER:	069057
HEARING DATES:	23/11/06
SUBMISSIONS CLOSED:	11/23/2006
DATE OF DECISION:	12/06/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	051091
DATE OF DECISION UNDER APPEAL:	07/25/2006
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Dunne v Rail Corporation, New South Wales [2006] NSWADT 273
REPRESENTATION:	APPELLANT A Sharpe, Solicitor RESPONDENT J Laxon, Solicitor
ORDERS:	Application for costs dismissed.

REASONS FOR DECISION

1 Ms Dunne is an employee of RailCorp who has epilepsy. She complained that RailCorp had discriminated against her on the ground of her disability. During the course of the hearing, Ms Dunne’s lawyer applied to the Tribunal to amend the Points of Claim. The amendment related to the identification of the “requirement” that Ms Dunne said RailCorp imposed on her in breach of the “indirect” discrimination provisions of the Anti-Discrimination Act 1977 (AD Act). The Tribunal allowed the amendment. RailCorp requested written reasons for the Tribunal’s decision. The Tribunal handed down those reasons on 18 August 2006. RailCorp appealed on 15 September 2006, which was the last day the appeal could have been lodged to be within time the 28 day time limit.

2 On 21 September 2006, nearly a week after the appeal had been lodged, the Tribunal handed down the final decision: Dunne v Rail Corporation, New South Wales [2006] NSWADT 273. That decision found in favour of Ms Dunne in relation to her claim of “direct” discrimination on the ground of disability and did not address Ms Dunne’s alternative claim of “indirect” discrimination. Given that the amendment decision related to the claim of indirect discrimination, RailCorp withdrew the appeal and it was dismissed on 2 November 2006. Ms Dunne says that RailCorp did not notify her that it was withdrawing the appeal until 20 October 2006. By that time she had complied with directions to file a Notice in Reply within 21 days of the appeal being lodged. The Reply was filed on 6 October 2006. Ms Dunne now applies for costs against RailCorp in relation to the withdrawn appeal.

3 The general costs rule in relation to proceedings in the Equal Opportunity Division of the Tribunal is that each party pays their own costs. However, if the Tribunal (which includes the Appeal Panel) is “of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs . . . as it thinks fit”: AD Act, s 110. Ms Dunne submitted that the circumstances justifying a costs order related to the conduct of RailCorp in bringing and maintaining the appeal when it was without any real prospects of success and was of no utility after 21 September 2006. Secondly, Ms Dunne says that without an order for her costs she will be required to pay her legal costs in circumstances where the amount of compensation originally awarded to her does not justify such expense and leads to substantial injustice.

4 RailCorp submitted that there is no justification for an award of costs. On 31 August 2006, prior to lodging the appeal, they wrote to Ms Dunne’s solicitors requesting that they agree to allowing them 28 days from the delivery of the final decision to appeal in relation to the amendment decision. The relevant paragraphs of that letter state that:

The outcome of the substantive proceedings will necessarily impact on RailCorp’s decision in relation to appealing the Decision. In those circumstances, and to avoid the parties incurring further unnecessary costs, we propose that, by consent, RailCorp be permitted 28 days from the date upon which it is furnished with written decisions in relation to the substantive proceedings, in which to file an appeal in relation to the Decision.

Please let us have your client’s instructions in relation to this proposal by close of business on 6 September 2006. If we do not receive your client’s consent on or before that date, we are instructed to file a notice of appeal, and application for leave to appeal against an interlocutory decision.

5 RailCorp did not receive a response to this letter. As I have said, RailCorp appealed on 15 September 2006. They submitted that if Ms Dunne had agreed to their proposal, there would have been no need to consider whether to lodge an appeal until after the final decision had been handed down. If that had happened, Ms Dunne would have avoided paying her lawyers to prepare a Notice in Reply.

6 Without a hearing, it is difficult for the Appeal Panel to assess the prospects of success of the appeal. However, we are not satisfied that, on its face, the appeal is so weak that a costs order is justified. As this application concerns the costs on appeal, we do not regard it as particularly significant that Ms Dunne’s liability for costs will further erode her award of compensation at first instance.

7 Ms Dunne’s best point is that RailCorp did not let her know that it was withdrawing the appeal until after her lawyers had lodged a Notice in Reply. If costs were to be avoided, RailCorp had 10 working days (21 September to 6 October) to decide whether to proceed with the appeal and to notify Ms Dunne that the appeal was being withdrawn. The question is whether their failure to do so justifies an award of costs.

8 Although it would have been desirable for RailCorp to advise Ms Dunne’s lawyers sooner, their conduct does not justify an order for costs for several reasons. Firstly, 10 days is a relatively short time period to expect solicitors to read the final decision, consult with counsel and advise parties and the Tribunal of how they intend to proceed. Secondly, even if RailCorp had notified Ms Dunne’s solicitors earlier, the Notice in Reply may already have been prepared. Finally, RailCorp made a sensible attempt to avoid costs by seeking the consent of Ms Dunne’s solicitors to an extension of time to lodge the amendment appeal. The failure of Ms Dunne’s solicitor’s to respond to that proposal was one of the reasons that unnecessary costs were incurred.

Order

Application for costs dismissed.