Sedergreen v TAFE NSW

[2020] NSWCATAD 273

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sedergreen v TAFE NSW [2020] NSWCATAD 273

Hearing dates:

On the papers

Date of orders:

5 November 2020

Decision date:

05 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
J Delahunty, Senior Member

Decision:

The application for costs is refused.

Catchwords:

COSTS – amended points of claim - adjournment – costs thrown away

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

AIN v Medical Council of New South Wales [2015] NSWCATAP

Cretazzo v Lombardi (1975) 13 SASR 4 at 11

Moseley v AB (No 2) [2017] NSWSC 1812 (20 December 2017)

Peters v Peters [1907] NSWStRp 47; (1907) 7 SR (NSW) 398

Scharer v Counting Instruments Ltd [1986] 1 WLR 615

Williams v Lewer [1974] 2 NSWLR 91

Category:

Procedural and other rulings

Parties:

Caroline Sedergreen on behalf of Henry Sedergreen (Applicant)
TAFE NSW (First Respondent)
Robyn Brennan (Second Respondent)

Representation:

Counsel:
R Lee (Respondents)

Solicitors:
MinterEllison (Respondents)

File Number(s):

2020/00115300

Publication restriction:

None

REASONS FOR DECISION

1. Mr Henry Sedergreen (“the applicant”) has commenced a claim for discrimination against TAFE NSW and one of its head teachers in nursing, Ms Robyn Brennan (“the respondents”) pursuant to the Anti-Discrimination Act 1977 (NSW).

2. This matter was listed for hearing on 8 and 9 October 2020. The applicant, by his agent, Mrs Sedergreen, sought to amend his points of claim. The application was opposed. The Tribunal allowed the amendment. The Respondent successfully requested for the hearing to be adjourned on the basis of, amongst other things, prejudice.

3. These reasons for decision relate to an application by respondent for the applicant to pay their costs of the hearing thrown away.

Relevant procedural history

4. On 26 August 2019, the Anti-Discrimination Board of NSW (ADB) received a complaint from Mrs Caroline Sedergreen (who made the complaint on behalf of the applicant). Leave was granted to Mrs Sedergreen to represent the applicant on 18 August 2020.

5. On or around 31 March 2020, the ADB referred the complaint to the Tribunal.

6. On 20 May 2020, the matter was listed for a case conference before Senior Member Ludlow, during which timetabling orders were made. A hearing date of 27 and 28 August 2020 was fixed.

7. On 9 July 2020, the applicant filed and served his points of claim and primary evidence. The points of claim related to a number of alleged events occurring at the TAFE NSW St Leonards campus between April 2018 to July 2019.

8. On 16 July 2020, the time for complying with directions made on 20 May 2020 was extended. Amongst other things, the respondent was ordered to file its points of defence and evidence by 7 August 2020.

9. On 18 August 2020, the matter was listed for a directions hearing before Senior Member Ransome, during which further timetabling orders were made. The August hearing date was vacated and the matter was fixed for further hearing on 8 and 9 October 2020.

10. On 4 September 2020, the respondents filed and served their points of defence and evidence in compliance with the orders of Senior Member Ransome on 18 August 2020.

11. On 25 September 2020, the applicant filed and served a bundle of documents purporting to be the applicant's evidence in reply. In that material reference is made to alleged events occurring at the TAFE NSW Ultimo campus between August 2020 and September 2020.

12. At the hearing to determine the substantive application on 8 October 2020, among other things, the following occurred during the hearing:

1. Mrs Sedergreen, on behalf of the applicant, made an application for leave to amend the applicant's points of claim to include alleged events occurring at the TAFE NSW Ultimo campus between August 2020 and October 2020;

2. We explained that should the applicant succeed in amending his points of claim, the proposed amendment may cause prejudice to the respondents, which could lead to the respondents making an application for the hearing to be adjourned and to seek costs;

3. The applicant pressed the application for leave to amend his points of claim which was opposed. We granted leave for the applicant to amend his points of claim to include a new paragraph 23A as follows: 'TAFE NSW has further victimised the applicant by not notifying him that he had not completed his Diploma and refusing to grant his Diploma before on or about 6 October 2020';

4. Upon considering the respondents application to adjourn the hearing, we decided that the respondents could not meet the late amendment and adjourned the hearing;

5. The respondents made an application that their costs thrown away as a result of the adjournment to be paid by the applicant. We ordered for the parties to file and serve submissions in respect of the application for costs to be determined on the papers, unless the parties indicated otherwise.

Principles relating to costs

13. The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”). Pursuant to that section, each party to proceedings is generally to pay their own costs. However, pursuant to s 60(2) of the Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so.

14. In determining whether there are “special circumstances”, the Tribunal may have regard to section 60(3) of the Act.

1. In determining whether there are special circumstances warranting an award of costs the, Tribunal may have regard to the following-- 

   (a)   whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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)   whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, 

   (f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

   (g)   any other matter that the Tribunal considers relevant. 

   15. “Special circumstances” means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Each case will depend on its own facts (see AIN v Medical Council of New South Wales [2015] NSWCATAP at [165]).

   16. Walton J, summarised the general principles when determining an application for costs in Moseley v AB (No 2) [2017] NSWSC 1812 (20 December 2017) at [66-67]. The application related to the Civil Procedure Act 2005 (NSW). However the principals are apposite to this application.

2. If costs are awarded, the Tribunal may determine by whom and to what extent costs are to be paid (see section 60(4) of the Act). The central and overriding principle in this regard is that of doing justice to the parties in each particular case. This involves a heavily contextual assessment that focuses upon the conduct of the litigation itself. A discretion exercised on grounds unconnected with the litigation, or on no grounds at all, is arbitrary or capricious rather than fair or just (see Peters v Peters [1907] NSWStRp 47; (1907) 7 SR (NSW) 398 at 399 (per Street J); Cretazzo v Lombardi (1975) 13 SASR 4 at 11 (per Bray CJ); Scharer v Counting Instruments Ltd [1986] 1 WLR 615 at 621 (per Buckley LJ).

3. The discretion must be exercised judicially and “according to rules of reason and justice, not according to private opinion ... or even benevolence ... or sympathy”: Williams v Lewer [1974] 2 NSWLR 91 at 95.

   17. Walton J went on to say that the discretion may be exercised whenever the circumstances warrant, having regard to the scope and purpose of the provisions of the legislation governing costs. However, the discretion must be exercised on a principled basis and in accordance with the principles of proportionality (see Moseley v AB at [68-69]).

The parties submissions

18. The respondents rely upon the following subsections of the Act: Subsection 60(3)(a) – Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings; subsection 60(3)(b) – Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; and subsection 60(3)(f) – Whether a party has refused or failed to comply with the duty imposed by section 36(3).

19. The applicant's original Points of Claim and primary evidence filed on 9 July 2020 relate to alleged events occurring at TAFE NSW St Leonards campus between April 2018 to July 2019.

20. The facts underlying the allegation which forms new paragraph 23(A) of the amended points of claim, occurred from as early as 7 August 2020. It is argued that this represents a new allegation which is more than a year after the allegations in the original points of claim. The new allegations also relate to a different TAFE NSW campus and to different TAFE NSW staff being TAFE at Ultimo.

21. The respondents say that the applicant was given notice by the Tribunal of the potential outcome of his late application to amend his points of claim. Even in circumstances where both the applicant and Mrs Sedergreen are not legally trained, they were given notice that the hearing may be adjourned with costs awarded against the applicant.

22. The applicant served a bundle of documents on 25 September 2020 relating to the alleged events occurring at the TAFE NSW Ultimo campus which was evidence in reply to that of the respondents. The respondent contends that If the applicant had intended on including those allegations into his points of claim, he ought to have made an application for leave to do so at that point in time. Having filed points of claim, the applicant ought to have been aware of the purpose of the same.

23. Despite the matter being listed before a Registrar prior to the date being fixed for hearing, the Applicant made no mention of the broadening of his claim. He should have known that the respondents had no opportunity to file and serve further evidence given that the time to do so had expired.

24. In conclusion the respondents submit: “The overall effect of the application of the applicant to amend the points of claim was to ambush the respondents, leaving the respondents to make an application to adjourn the hearing in order to allow them an opportunity to respond to the new allegations and prepare evidence addressing those allegations.”

25. The respondents seek $3,135 plus GST for both counsel and solicitor costs thrown away.

26. Mrs Sedergreen, on behalf of the applicant submitted, she is not legally trained and has made the best effort in good faith to comply with orders of the Tribunal. At paragraph four of her submissions she asserts:

“It is clear from this opening paragraph that we wanted this “matter to be brought to the attention of the Tribunal for a decision” as stated at Section 39 of the Act. If I had known that the Points of Claim had to be amended, or even could be amended, I would have asked for it to be amended. We reported this further victimisation to the Tribunal in good faith. The respondents were not ambushed at the hearing, as they claim. ‘Ambush”, by its very definition, includes an element of surprise. The respondents had this material on 25 September 2020. It is clearly stated that we want the Tribunal to consider this further victimisation and the further damage caused to Henry by TAFE NSW.”

27. Mrs Sedergreen submits that NCAT is a no costs jurisdiction and there are no special circumstances which would persuade the Tribunal to make a costs order against the applicant. Mrs Sedergreen sets out a number of prior breaches of the respondents in failing to comply with orders of the Tribunal.

28. In particular, Mrs Sedergreen refers to the reasons for the original hearing date set for 27 and 28 August 2020 being vacated. Mrs Sedergreen says the respondents failed to comply with orders made by Senior Member Ludlow on 20 May 2020 and Registrar Clegg on 16 July 2020 in not filing and serving their Points of Defence and evidence by 30 July 2020 and 7 August 2020 respectively. Mrs Sedergreen said despite the respondents being granted an extension of the date for compliance with filing their points of defence and evidence, they failed to do so, which, caused the August hearing dates to be vacated despite the applicant opposing the hearing date being vacated.

29. The respondents in their written submissions have not disputed nor explained the matters set out in the paragraph 28 herein.

Consideration

30. The fact that Mrs Sedergreen is not legally trained is of little significance. As agent for her son, she should make herself aware of the obligations owed by an applicant for whom she is assisting.

31. The late amendment of the points of claim clearly placed the respondents into a position where the hearing had to be adjourned so that evidence could be put on in reply.

32. We have considered the submissions of each of the parties. We find that fairness dictates consideration not only of the matters pertaining to why the matter was adjourned on 8 October 2020, but also a contextual assessment of the conduct of the parties during the course of the litigation itself.

33. We find, that the applicant’s late amendment of the points of claim is conduct which has unnecessarily disadvantaged the respondents. It is also conduct that has unreasonably prolonged the conduct of the litigation given that the applicant ought have known that his points of claim should have been amended before the first day of the hearing.

34. We are not satisfied that the applicant is in breach of any obligation imposed by section 36(3) of the Act.

35. We have taken into consideration the conduct of the respondents in failing to comply with the Tribunal’s orders which lead to the August hearing dates being vacated (see section 60(3)(g)). The respondents conduct would amount to a breach of section 36(3). It has also unreasonably prolonged the conduct of the litigation.

36. When balancing the respondents conduct with our findings concerning sections 60(3)(a) and (b) as it relates to the applicant, a fair and just result is that the costs application be refused.

37. We order accordingly.

1. The application for costs is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 November 2020