Sivananthan v Commissioner of Police, NSW Police Service

[2002] NSWADT 45

CITATION:	Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Kathiravelu Sivananthan RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	981016
HEARING DATES:	11/02/02
SUBMISSIONS CLOSED:	02/11/2002
DATE OF DECISION:	03/28/2002
BEFORE:	Rees N - Judicial Member; Mooney L - Member; Silva A - Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Legal Profession Act 1987 Supreme Court Act 1970 Supreme Court Rules 1970
CASES CITED:	Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001] NSWADTAP 10 Graham v Director General, Department of Community Services [2001] NSWADTAP 4 Herring v Benevolent Society of NSW (1992) EOC 92-462 Maylor (No 2) v Mid North Coast Area Health Service {2001] NSWADT 118 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60
REPRESENTATION:	APPLICANT J Hilton SC, barrister RESPONDENT T Anderson, barrister
ORDERS:	The respondent's application for costs is refused

Introduction
1 The respondent in this case, the Commissioner of Police, has applied for an order for costs in his favour, following the decision by the Tribunal to dismiss all of the complaints of discrimination on the ground of race and victimisation made by the complainant, Mr Kathiravelu Sivananthan. Mr Sivananthan opposed the costs application, which was made in accordance with Order No 3 made by the Tribunal on 21 March 2001.

2 This application was heard by the Tribunal in Sydney on 11 February 2002. Both parties were represented by counsel: the complainant by Mr Hilton SC and the respondent by Ms Anderson. Mr Sivananthan, who is a solicitor, was unrepresented during the hearing of the complaints. The respondent has been represented throughout these proceedings by Ms Anderson.

3 Mr Milton Luger, who was a member of the Tribunal panel which heard this case, died a few months after the decision was delivered. In accordance with section 79 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), the President of the Tribunal, with the consent of the parties, appointed Mr Anthony Silva to replace Mr Luger on this panel.

4 In the paragraphs that follow we have set out a brief history of these proceedings, summaries of the submissions made by counsel and our reasons for refusing the respondent’s application for costs.

History of the Proceedings
5 In the period between 16 July 1996 and 30 July 1998, Mr Sivananthan lodged nine complaints of discrimination on the ground of race and seven complaints of victimisation against his former employer, the respondent, with the President of the Anti-Discrimination Board. As the President could not resolve the complaints, they were referred to the Tribunal for an inquiry. The Tribunal heard the case over 17 sitting days between 7 February and 14 August 2000. On 11 February 2000, at the conclusion of the Mr Sivananthan’s evidence, the Tribunal upheld the application by the respondent that all of the complaints of discrimination on the ground of race be dismissed pursuant to section 111 of the Anti-Discrimination Act 1977(the Act), as they were lacking in substance. After a full hearing, the victimisation complaints were also dismissed.

6 The Tribunal delivered its Reasons for Decision in this case on 21 March 2001. In paragraph 114 of that document we stated:

Ms Anderson made an application for costs. We heard no argument from her in support of that application and nor was there any response from the complainant to the application. In view of our findings it is appropriate to grant leave to the respondent to pursue the application for costs by applying to the Registrar in writing, within 28 days, for the matter to be re-listed for argument in relation to the costs application. If an application is made to the Registrar by the respondent within 28 days, the Registrar will re-list the matter on a date which is suitable to the parties and to the Tribunal. In the event that no application is made to the Registrar by the respondent within 28 days, the outcome will be that there is no order as to costs.
7 The respondent made application to the Registrar within the stipulated period. The hearing of the application was deferred until 11 February 2002, with the consent of the respondent, as Mr Sivananthan has been outside Australia since shortly after the Tribunal delivered its decision on 21 March 2001.

The submissions of the parties
8 It was agreed between the parties that the relevant grants of power to the Tribunal to make an order for costs in this case are to be found in sections 111(2) and 114(2) of the Act. Section 88 of the Tribunal Act also deals with costs. The power granted by that section is subject, however, to the provisions of any other Act (see section 88(1)). Accordingly, the relevant provisions in the Anti-Discrimination Act, rather than those in the Tribunal Act, govern the issue of costs in cases in the Equal Opportunity Division of the Tribunal.

9 Ms Anderson sought an order that the complainant pay the respondent’s costs of the entire proceedings on a party/party basis. The Tribunal was not presented with any quantification or assessment of the respondent’s costs. The order sought by the respondent was that his costs be assessed by a costs assessor appointed pursuant to Division 6 of Part 11 of the Legal Profession Act 1987. In view of the facts that the case had extended over 17 days, and that the respondent also sought costs in relation to the interlocutory applications which had preceded the hearing, Ms Anderson noted that her client’s costs were “very substantial”.

10 Ms Anderson submitted that any order for costs in relation to the complaints of discrimination on the ground of race should be made pursuant to s111(2) of the Act, which permits the Tribunal to “order the complainant to pay the costs of the inquiry” when it exercises its power under s111(1) to dismiss a complaint which is “frivolous, vexatious, misconceived, or lacking in substance”. The fact that these complaints were dismissed at the conclusion of the complainant’s case, without requiring the respondent to go into evidence was, in Ms Anderson’s submission, a reason to exercise the power granted by s111(2) to make a costs order in the respondent’s favour.

11 The costs order in relation to the victimisation complaints should be made pursuant to the power granted by s114(2) of the Act, Ms Anderson submitted. In support of this argument Ms Anderson referred to the Appeal Panel decision in Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001] NSWADTAP 10, where the exercise of the discretion granted by s114(2) was considered. This was a case, according to Ms Anderson, in which that discretion should be exercised in favour of the respondent.

12 Mr Hilton SC, for the complainant, handed up written submissions, and responded to the submissions made by Ms Anderson. He, too, referred to a recent decision of an Appeal Panel – Graham v Director General, Department of Community Services [2001] NSWADTAP 4 – in which it was said that, “[t]he usual rule in Equal Opportunity Division matters is that no costs are awarded”. According to Mr Hilton, there were no reasons to depart from that ‘usual rule’ in this case. In his submission, there was no presumption created by s111(2) of the Act that a respondent who succeeds in application that a complaint be dismissed pursuant to s111(1) should receive an order for costs in his or her favour. The decision of the former Equal Opportunity Tribunal in Herring v Benevolent Society of NSW (1992) EOC 92-462, and the decision of this Tribunal in Maylor (No 2) v Mid North Coast Area Health Service {2001] NSWADT 118, were cited as authorities for this proposition.

13 Mr Hilton also made reference to statements in Maylor (No 2) (at paragraphs 21 to 35) concerning the policy of the legislation and the potential “chilling effect” of ordering costs against unsuccessful complainants, particularly where the respondent is a governmental authority. Mr Hilton submitted that there was no suggestion that the complaints in this case were not made in good faith and he referred to the observation made in our Reasons for Decision that “[w]e were left in no doubt that it was the complainant’s strongly held belief that he had been the victim of race discrimination but ‘the level of his belief went no further than a mere suspicion without any supporting material’” ([2001] NSWADT 44 at para 24).

14 It was submitted that the policy underlying the victimisation provisions in the Act was to ensure that people who believe that they have been the subject of discrimination are not deterred from pursuing their rights under the Act for fear of reprisals or further disadvantage. A costs order against the complainant in relation to the victimisation complaints would undermine this policy, Mr Hilton submitted.

15 Ms Anderson submitted that if the discussion of relevant considerations in Maylor (No 2) meant that different rules applied to governmental authorities when they sought orders for costs, the Tribunal was in error in that case.

Conclusions
16 We accept the submissions by counsel that the Tribunal’s powers to make a costs order in this case are found in sections 111(2) and 114(2) of the Act. As the complaints of discrimination on the ground of race were dismissed pursuant to s111(1), it is appropriate to consider whether any costs order should be made pursuant to s111(2) in relation to those complaints. The victimisation complaints were dismissed pursuant to s113(1)(a) of the Act. The costs power in s114(2) must govern those complaints.

17 In civil litigation in the courts, costs usually follow the event; the unsuccessful party is ordered to pay the costs of the successful party, unless there are circumstances which justify some other order (see B Cairns, Australian Civil Procedure (4th ed), LBC Information Services: Sydney, 1996 at pp 610-611). Whilst the courts are given general discretionary powers in relation to costs (see eg s76 Supreme Court Act 1970), court rules generally direct that costs should follow the event, unless there are good reasons to depart from the costs indemnity rule (see eg Part 52A rule 11 of the Supreme Court Rules 1970). There is no such rule in this Tribunal.

18 Section 111(2) of the Act permits the Tribunal to “order the complainant to pay the costs of the inquiry” when it dismisses a complaint pursuant to s111(1). No presumption in favour of a costs order is created by the wording of s111(2), and no presumption arises from the cases in which that power has been considered. Each case must be considered on its merits, with the rider that the Tribunal must exercise its discretionary power judicially.

19 In those cases where a complaint has been dismissed pursuant to s111(1) because it is “frivolous” or “vexatious” the arguments in support of a costs order in favour of a successful respondent may be strongest, for those terms denote an “abuse of process” (see State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109, per Ormiston JA). In cases where a complaint has been declined by the President of the Anti-Discrimination Board, and the complainant has exercised his/her right to have the case determined by the Tribunal, there may also be strong grounds for ordering costs against the unsuccessful complainant (see Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60).

20 In this case, the complaints of discrimination on the ground of race were dismissed at the conclusion of the complainant’s case because they were “lacking in substance”. As Mr Hilton submitted, the Tribunal accepted that the complainant strongly believed that he had been the victim of race discrimination. He was, however, unable to produce evidence in support of that strongly held belief.

21 The Tribunal must weigh competing interests. The respondent has been put to considerable expense in defending claims which were forcefully made, and which challenged the integrity of senior members of the NSW Police Service. No doubt a finding that the complaints were substantiated would have had a disastrous effect upon the careers and reputations of those persons who were accused of race discrimination. The respondent was entitled to vigorously defend those accusations.

22 There is, however, a considerable public benefit in eradicating race discrimination. It is well known to those who practise regularly in this jurisdiction that it is difficult to prove unlawful discrimination. In a case of direct discrimination it is not easy to establish that the respondent’s reasons or grounds for treating the complainant as he/she did included an unlawful ground such as race, sex or disability. The public benefit in preventing race discrimination may be seriously undermined if the Tribunal were too quick to order costs against a complainant who did not succeed because his/her complaint was found to be lacking in substance. This is not a jurisdiction in which an agency of government conducts litigation on behalf of those people who believe that they have been the subject of unlawful discrimination. It is up to individuals to conduct their own cases, and to bear the risks of so doing. It is not in the public interest to discourage people from pursuing the broader good of eradicating unlawful discrimination.

23 In this case we are not satisfied that there are reasons which justify a costs order in favour of the respondent. The complaints were not dismissed because they constituted an abuse of process, and this is not a case in which the complainant insisted upon a Tribunal hearing after the President of the Anti-Discrimination Board had rejected his complaints. Had the complainant sought competent legal advice at an early stage he would have been alerted to the lack of evidence in support of his claims, but this shortcoming does not tip the scales in favour of a costs order for the respondent. Finally, we should note that we do not consider the identity of the respondent to be a relevant consideration. If there is any suggestion in Maylor (No 2) that governmental authorities should be treated differently to other litigants when costs orders are being considered, we find ourselves unable to record our agreement with any such proposition.

24 As we have noted, the issue of costs in relation to the victimisation complaints is governed by s114 of the Act. Section 114(1) creates a ‘usual rule’, or starting proposition, in relation to costs. Except as provided by s111(2) and s114(2), “each party to an inquiry shall pay his or her own costs”. Section 114(2) permits the Tribunal to depart from that usual rule when it is “of the opinion that there are circumstances that justify it doing so”. The legislation does not describe any circumstances which may justify a departure from the general rule and an Appeal Panel recently noted in Cvetkovski that “no authority or rule can determine whether in any particular case an order should be made” (at para 71).

25 Relevant considerations when determining whether to exercise the power granted by s114(2) to award costs against an unsuccessful complainant may include delay and cost caused by the manner in which the complainant conducted his or her case, failure by the complainant to accept a reasonable offer of settlement, and evidence that the proceedings were instituted and pursued in bad faith. None of those considerations are apposite in this case.

26 The complainant alleged that there were 24 incidents which amounted to victimisation, in contravention of s50 of the Act. He was unable to substantiate any of his claims, some of which were trivial. The respondent was clearly put to considerable expense in gathering and presenting evidence to respond to these claims. However, the claims must be assessed in the context in which they arose. As we noted at paragraph 113 in our earlier decision, it was difficult to resist the observation made by one witness that the workplace in which the events took place was “dysfunctional”. Accordingly, it is not surprising that it was difficult for all relevant parties to retain an appropriate sense of proportion about daily events in that workplace.

27 The manner in which the complainant actually presented his case did not unnecessarily prolong the hearing. There was no suggestion that he failed to accept a reasonable offer of settlement. As with the race discrimination complaints, we accept that the complainant genuinely believed that he had been victimised because he had lodged complaints under the Act against his employer. Because of the intensity of that belief, it appears that he was unable to make any objective assessment of the paucity of evidence in support of his claims.

28 There are no reasons which satisfy us that we should exercise the discretion granted by s114(2) to depart from the ‘usual rule’ set out in s114(1) that each party should pay his or her own costs.


Order
29 The order of the Tribunal is as follows:
The respondent’s application for costs is refused.