Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (No 2)
[2007] NSWADTAP 33
•6 July 2007
Appeal Panel - Internal
CITATION: Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (No 2) [2007] NSWADTAP 33 PARTIES: APPELLANT
Tallong Park Association Inc
RESPONDENT
Douglas SutherlandFILE NUMBER: 069066 HEARING DATES: On the papers SUBMISSIONS CLOSED: 16 May 2007
DATE OF DECISION:
6 July 2007BEFORE: Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: costs - scope of Tribunal Order MATTER FOR DECISION: Costs
PenaltyFILE NUMBER UNDER APPEAL: 051124 DATE OF DECISION UNDER APPEAL: 06/01/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Act 1991 (Qld)CASES CITED: C v A (No. 2) [2007] QADT 2 (6 February 2007)
Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44
Sutherland v Tallong Park Association Incorporated (No.2) [2006] NSWADT 287
Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163
Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (EOD) NSWADTAP 19REPRESENTATION: APPELLANT
RESPONDENT
L. T. Grey, barrister
V.R.W. Gray, barristerORDERS: 1. The Association is to publish an apology in the following form:; APOLOGYIn accordance with an order of the Appeal Panel of the Administrative Decisions Tribunal made on 6 July 2007, the Tallong Park Association Inc states the following:The Administrative Decisions Tribunal has found that the Tallong Park Association Inc discriminated against Mr Douglas Sutherland, a resident of Tallong Park Estate, on the ground of his disability by requiring him to access the swimming pool by traversing a distance of 75 meters from the car park, which he was unable to do. The Association apologises to Mr Sutherland for its unlawful conduct.; 2. The apology should be communicated in writing to each member of the Association within 42 days of the date of this decision, either on Association letterhead and delivered to each member of the Association, or displayed prominently in an Association newsletter or other Association publication that is delivered to each member of the Association; 3. No order as to costs.
REASONS FOR DECISION
Background
1 The Tribunal decided that Mr Sutherland’s complaint of disability discrimination against Tallong Park Association Inc was substantiated and that he was entitled to certain redress. The Association appealed against the Tribunal’s decision in relation to liability, but not the decision in relation to remedies. Mr Sutherland appealed in relation to the remedies ordered by the Tribunal. The Appeal Panel affirmed the decision in relation to liability and remedies except as follows:
2 The Appeal Panel made directions as to the filing and service of submissions in relation to whether an apology should be ordered and, if so, the content of such an apology. The Appeal Panel also indicated that if either party wished to apply for costs in relation to the appeal, it should do so within certain time limits. This decision deals with the merits of ordering an apology and whether or not the Association should be ordered to pay Mr Sutherland’s costs of the appeal. We have determined these matters ‘on the papers’ as we are satisfied that the issues can be adequately determined in the absence of the parties: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76.
The Tribunal’s decision not to order the Association to apologise to Mr Sutherland is set aside. The appeal is extended to the merits of the Tribunal’s decision on that point.
3 The factual background to these proceedings is set out in the Tribunal’s decisions at first instance: Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163 (1 June 2006) Sutherland v Tallong Park Association Incorporated (No.2) [2006] NSWADT 287 (3 October 2006). In brief, Mr Sutherland has a disability that limits his mobility. He lives in an estate that provides certain facilities for the use of residents including a swimming pool. Mr Sutherland used to drive his car to the pool but vehicular access was cut off making it necessary for him to access the pool other than by car. The Tribunal upheld Mr Sutherland’s complaint that the Association had “indirectly” discriminated against him on the ground of his disability in relation to the terms on which it provided him with services: Anti-Discrimination Act 1977 (AD Act) s 49M(1)(b).
Should the Association be ordered to apologise to Mr Sutherland?
4 Section 108(2)(d) of the AD Act allows the Tribunal to order an apology:
5 In our previous decision ( Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (EOD) NSWADTAP 19) we concluded at [78], that:
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both)
6 Mr Sutherland submitted that the Association should be ordered to apologise and that the apology should take the form of an explanation and vindication rather than a personal expression of genuine regret. In summary, the reasons Mr Sutherland says that the Appeal Panel should order the Association to apologise are that:
In this case the Tribunal said that “an apology that takes the form of an expression of regretful acknowledgement of fault or remorse for the unlawful conduct would not serve any purpose . . . ” While that may be so, the Tribunal failed to appreciate that an apology within the meaning of that term in s 108(2)(d), could also take the form of an acknowledgement of wrong doing whether genuinely held or not. It follows that the Tribunal erred by failing to appreciate the extent of its power to order an apology.
7 Mr Sutherland submitted that the apology should be in the form set out in an attachment to his submission. The attachment is a four page document which summarises the facts as found by the Tribunal, the elements of the complaint that Mr Sutherland was required to prove, the history of the Association’s response to Mr Sutherland’s complaint and the reasoning and decision of the Tribunal and the Appeal Panel. According to Mr Sutherland, the apology should be printed as a single item on the letterhead of the Association and delivered to each member of the Association.
a) the Association has used its position as the ‘body corporate’ for the Tallong Park to misrepresent to the members of the Estate the nature of the case that was brought by Mr Sutherland and has thereby generated ill-feeling against Mr Sutherland among members of the Association;
b) the fact that the complaint of unlawful discrimination was upheld should be communicated to the members so that they receive an accurate representation of the whole case and the detail of what the Tribunal decided and why;
c) the AD Act is a remedial statute intended to raise awareness of the need to recognise and eliminate discrimination as far as possible.
8 The Association said that Mr Sutherland had misconceived the nature of an apology. An apology may only be made “in respect of the matter the subject of the complaint”: s 108(2)(d). The subject-matter of the complaint was that the Association’s requirement that in order to use the pool facilities, a person must traverse a pedestrian pathway from the main car parking area, a distance of approximately 75 meters, to the pool. The Association said that Mr Sutherland apparently seeks an apology, not for failing to provide suitable access to the swimming pool, but for misleading members and residents of the estate as to the outcome of the case and the costs involved. In the Association’s submission, the Tribunal has no jurisdiction to order an apology in the form requested by Mr Sutherland. In addition, the Association said that an apology should not be ordered as it would serve no useful purpose.
Reasoning and conclusion
9 We agree with Mr Sutherland that it is appropriate to order the Association to publish an apology in the nature of an acknowledgement of wrongdoing. That is a remedy that is available under the AD Act and which we consider appropriate in the circumstances of this case. The relationship between Mr Sutherland and the Association has not been a harmonious one. An apology will hopefully put an end to that adversarial relationship and enable the parties to relate to one another more positively in the future.
10 However, we do not agree with the form of the apology proposed by Mr Sutherland. The purpose of an apology is not to inform the members of the Association about the history of the litigation and it outcomes. Rather, it is to ensure that the Association publicly acknowledges that its discriminatory conduct was unlawful. The apology should be in the form contained in the order below. We do not agree with Mr Sutherland’s submission that the apology should necessarily be sent to each member of the Association as a stand-alone document. As long as the apology appears prominently in an Association newsletter or other publication that is delivered to each member, that will constitute a sufficient communication in the circumstances.
Should a costs order be made?
11 Initially both parties applied for costs in relation to the appeal. The Association did not pursue its application, but opposed the order for costs sought by Mr Sutherland. Mr Sutherland applied for costs on the basis that he succeeded in defending the Association’s appeal and was partly successful in his own appeal.
12 Section 110 of the AD Act gives the Tribunal power to award costs:
13 The relevant principles in relation to an application for costs were set out by the Appeal Panel in Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 (4 September 2006) at [42]:
(1) Each party to an inquiry is to pay his or her own costs, except as provided by this section.
(2) If 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.
14 Mr Sutherland relied on a decision of the Queensland Anti-Discrimination Tribunal in which it was said that the facts were similar: C v A (No. 2) [2007] QADT 2 (6 February 2007). Any comparison with decisions made pursuant to the Anti-Discrimination Act 1991 (Qld) are of little or no relevance because the costs provision in that legislation gives the Tribunal a discretion to order a party to pay such costs as the Tribunal considers reasonable. Unlike the situation under the New South Wales legislation, there is no presumption in Queensland that each party will pay his or her own costs.
(1) Section 110 creates a presumption that each party will pay his or her own costs and a discretion to award costs: Cleary Bros (Bombo) Pty Ltd -v- Cvetkovski (EOD) [2001] NSWADTAP 10 at paras 63-65;
(2) This discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made;
(3) previous cases relating to costs can only provide an indication of the kinds of circumstances that may attract a costs order;
(4) as a general proposition, a combination of circumstances is required in order to justify an award of costs. See, for example, Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No.2) NSWADT 252; Peck v Commissioner of Corrective Services (No. 2) [2002] NSWADT 244; V v Y & Anor; X v Y & Anor [2002] NSWADT 7; Duggan v Shore Inn Pty Limited (1993) EOC 92-483; Willis v State Rail Authority of New South Wales (No. 3) (1992) EOC 92-456; Holdaway v Qantas Airways Limited (1992) EOC 92-430; Squires v Qantas Airways Ltd (1985) EOC 92-135. In combination with other factors, the kinds of circumstances which have been regarded in previous cases as justifying an award of costs against an applicant include:
(i) the manner in which the applicant has conducted the proceedings, in particular whether the proceedings were vexatious;
(ii) whether the proceedings determine or clarify an important question of law;
(iii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and
(iv) where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success.
15 Mr Sutherland said that costs are justified not only because of his relative success in both the Tribunal proceedings and on appeal but because he had to attend five separate hearings of varying lengths in order to have the matter resolved. Mr Sutherland also submitted that his costs far outweigh the relatively small cost to the Association of complying with the AD Act.
16 None of these matters justify an award of costs. In particular, success, or relative success, is not decisive as there is a presumption that each party will pay his or her own costs. Mr Sutherland has not pointed to anything in relation to the Association’s conduct of the litigation that would justify a costs order. The Association was entitled to vigorously defend the complaint within reasonable bounds, as it did, and the fact that Mr Sutherland has been put to considerable expense to redress conduct that could have been remedied relatively inexpensively by the Association, does not justify a costs order.
Order
1. The Association is to publish an apology in the following form:
2. The apology should be communicated in writing to each member of the Association within 42 days of the date of this decision, either on Association letterhead and delivered to each member of the Association, or displayed prominently in an Association newsletter or other Association publication that is delivered to each member of the Association.
APOLOGY
In accordance with an order of the Appeal Panel of the Administrative Decisions Tribunal made on 6 July 2007, the Tallong Park Association Inc states the following:
The Administrative Decisions Tribunal has found that the Tallong Park Association Inc discriminated against Mr Douglas Sutherland, a resident of Tallong Park Estate, on the ground of his disability by requiring him to access the swimming pool by traversing a distance of 75 meters from the car park, which he was unable to do. The Association apologises to Mr Sutherland for its unlawful conduct.
3. No order as to costs.
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