Shaikh v Police and Community Youth Clubs NSW Ltd and Ors (No.3)

[2003] NSWADT 113

CITATION:	Shaikh v Police and Community Youth Clubs NSW Ltd and Ors (No.3) [2003] NSWADT 113
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Zaheer Shaikh FIRST RESPONDENT Police and Community Youth Clubs NSW Ltd SECOND RESPONDENT Bob and Bea Dowling
FILE NUMBER:	011038
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	02/14/2003
DATE OF DECISION:	05/21/2003
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Member; Lau L - Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Zaheer Shaikh v Police and Community Youth Clubs & ors. (No.2) [2003] Tu v University of Sydney (No. 2) (EOD) [2002] Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] Maylor (No 21) v Mid North Coast Area Health Service [2001]
REPRESENTATION:	APPLICANT S Friend, solicitor FIRST RESPONDENT A Johnson, solicitor SECOND RESPONDENT D Bernie, barrister
ORDERS:	Application for costs dismissed

1 This is an application for costs pursuant to s 114(2) of the Anti-Discrimination Act 1977 (“the A-D Act"). The application is made by the Police and Community Youth Clubs NSW ("PCYC") and Bob and Bea Dowling, respectively the first and second respondents. The applicant, Zaheer Shaikh, opposes the application.

2 In its decision published on 22 January (Zaheer Shaikh v Police and Community Youth Clubs & ors. (No.2) [2003] NSWADT 15) the Tribunal dismissed complaints of race discrimination and vilification made by the applicant. Those complaints were lodged by the applicant with the President of the Anti-Discrimination Board (respectively "the President" and "the Board") on 10 January 2000 and subsequently referred by the President to the Administrative Decisions Tribunal ("the Tribunal") under s 94(1) of the Act. The complaint concerned a ballroom dancing event on 27 November 1999 organised by the second respondents and held at premises owned by the first respondent.

3 All the parties were legally represented in the original proceedings.

Relevant legislation

4 Section 114(1) of the A-D Act establishes a presumption in favour of each party bearing their own costs. The Tribunal may, however, order costs where it is of the opinion that there “are circumstances that justify it doing so.”

114. Costs

(1) Except as provided by section 111(2) and subsection (2) each party to an inquiry shall pay his or her own costs.

(2) Where the Tribunal 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 and security for costs, whether by way of interim order or otherwise, as it thinks fit.

First Respondent’s Submissions

5 The first respondent submits that the circumstances of this case justify an order for costs.

6 First, it is submitted that the nature of the Club is a relevant consideration. The Club is a charitable organisation whose purpose is to foster better relationships between the police and young people and to provide programs, activities and support to young people, particularly those in disadvantaged circumstances. It is asserted, that the Club relies entirely on financial support from the public and charges imposed on members and is not the beneficiary of any government funding. Without a cost order, the Burwood PCYC will be obliged to use the funds that would otherwise be available to assist young people in the Burwood area.

7 Second, although it was not necessary for the Tribunal to determine whether the first respondent was liable for the acts of second respondent through the operation of s 53 of the A-D Act [not having found that the second respondents had contravened the A-D Act] it maintains that in any event no proper basis for liability could be found.

8 Third, it is asserted that the first respondent acted reasonably and made an offer to settle the matter, which the applicant rejected. In the absence of a costs order, the applicant will have unnecessarily put the first respondent to the expense of a four-day hearing to achieve an outcome open to him a year ago.

Second Respondent’s Submissions

9 In effect, the second respondents submit that the applicant’s complaints of race discrimination and racial vilification were misconceived. They assert that the applicant’s complaints concerned defamation of character. They contend that they have been put to the considerable expense of these proceedings over a misconceived dispute concerning the purchase of a $7 entrance ticket.

10 The second respondents also argue that the failure to award costs may encourage similar claims against the organisers of small social events who, like the second respondents, could ill afford to defend such claim.

Applicant’s Submissions

11 The applicant submits there is no reason in this case to depart from the presumption enshrined in s 114(1) that each party will bear its own costs for the following reasons: First, no findings were made that the applicant’s claim was frivolous, vexatious or misconceived. No application was made by either respondent to have the matter dismissed under s 111(1). The applicant’s own evidence was consistent. It was supported by independent evidence. The complaint failed because the applicant failed to satisfy the Tribunal to the requisite standard. It is asserted that there was nothing to suggest from the material before the Tribunal that the complaint was doomed to fail.

12 Second, the first respondent’s status as a charitable organisation does not of itself warrant an order for costs. No weight should be afforded to its argument that without a costs order it will be obliged to divert limited resources to pay for the costs incurred in this case. This, argues the applicant, applies equally to all respondents who are successful in a complaint brought under the A-D Act.

13 Fourth, the “offer” made by the first respondent was nothing more than a proposal that the applicant withdraw from proceedings on a no-costs basis. It did not represent a real attempt to resolve the dispute.

14 Fifth, the second respondent’s trivialisation of the complaint as a dispute concerning a $7 dance ticket indicates a flawed understanding of the objects and framework of the A-D Act. Among other things, the Act makes it unlawful for a party to discriminate against individual/s on the ground of race on the provision of goods. The value of those services, however assessed, is not a relevant consideration.

15 Finally, it is asserted that the applicant is unemployed and receiving social security benefits. His ability to meet a costs order is a relevant factor to take into account.

Conclusions

16 It is not in issue that the Tribunal has discretion to make an order for costs. What is in issue is whether the circumstances of this case justify such order.

17 As observed by the Appeal Panel in the recent decision of Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 at [42] “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, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.”

18 In our view this is not a case that could properly be characterised as an abuse of process. No finding was made that the complaint was frivolous, vexatious or lacking in good faith. Nor did the President decline to entertain the applicant's complaint under s 90 of the A-D Act.

19 We do not accept the second respondent’s characterisation of the complaint as misconceived because it was a consumer dispute or a matter better suited to defamation proceedings. While raised in the course of the substantive proceedings, no application was made under s 111(1) for the complaint to be dismissed on that basis. It may be that other legal options were open to the applicant. This alone does not mean that the application was brought to the wrong jurisdiction and “misconceived”.

20 While the length of the hearing could not be described as short, there is nothing in the applicant’s carriage of the case to support a finding that his actions unreasonably extended or delayed proceedings. Nor is that argued. All directions made by the Tribunal were complied with.

21 The Appeal Panel’s observation in Tu -v- University of Sydney cannot of course be elevated to the proposition that an order for costs will only be made against an unsuccessful complainant where an abuse of process has been involved. In exercising its discretion under s 114(2), the Tribunal must take into account all relevant circumstances. The Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 said [at 67] that in order to justify the making of an award of costs "there has to be something over and beyond a normal course of circumstances". The Panel explained:

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

24 Both respondents submit that their financial circumstances justify a departure from the usual rule as to costs. Both claim (as does the applicant) they can ill afford to meet the legal costs of these proceedings.

25 The first respondent endorses the approach to balancing the competing public interests underlying the policy objective of s 114 as discussed in Maylor (No 21) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23-24] and urged the Tribunal to adopt that approach in these proceedings:

…This [the application for costs] is a very finely balanced decision to make - we must consider both the protection of respondents from wasteful, time-consuming, misconceived crusades, but also access to justice and the "chilling effect" the too-ready ordering of costs against unsuccessful complainants, and Mr Maylor in particular, may have.

The public policy underlying such a divergence away from the time-honoured practice in courts is obvious. While a balance of interests has always to be struck, in these cases it is generally struck in favour of the citizen rather than the government authority. It is recognised, of course, that many complaints will ultimately not be substantiated or adequately established, the complainant bearing the onus of proof.

24 The competing public interests in this matter are finely balanced. The first respondent’s arguments are persuasive. It is not in the public interest to see the limited and finite funds of a charity called upon to meet legal fees incurred in defending an unsuccessful claim. Consideration must also be given to the difficulties the second respondents will have in meeting their legal costs.

25 Against this, the "chilling effect" of the too-ready ordering of costs against unsuccessful complainants such as Mr Shaikh must be balanced. Here it is relevant that the complaint could not be characterised as an abuse of process. The President did not exercise his discretion to decline the complaint. The applicant complied with all directions of the Tribunal and in its conduct of the case took no steps to unnecessarily extend or delay proceedings. After carefully considering all relevant issues it is our view that the circumstances of this case do not justify the exercise of our discretion under s 114(2) and accordingly we dismiss the application.

Order

Application for costs dismissed.