Traino v Tuggerah Lakes Golf Club Ltd

[2003] NSWADT 146

CITATION:	Traino -v- Tuggerah Lakes Golf Club Ltd [2003] NSWADT 146
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Ray Traino RESPONDENT Tuggerah Lakes Golf Club Ltd
FILE NUMBER:	021118
HEARING DATES:	22/04/2003
SUBMISSIONS CLOSED:	04/22/2003
DATE OF DECISION:	05/30/2003
BEFORE:	Needham J - Judicial Member; Nemeth de Bikal L - Member; Clayton S - Member
APPLICATION:	Age Discrimination - Registered Club - Sex Discrimination - Registered Club - Victimisation
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Crewdson v President, Anti-Discrimination Board of New South Wales [2000] New South Wales ADT60 Tu v The University of Sydney(No 2)[2002] New South Wales ADT AP 25
REPRESENTATION:	APPLICANT In person RESPONDENT T Johnston, solicitor
ORDERS:	Orders made on 22/04/03; Application for costs is dismissed.

EX-TEMPORE

1 Mr Ray Traino made an application to the Anti-Discrimination Board alleging discrimination on grounds of both age and sex, and on the grounds of victimisation. The complaints arise out of the membership arrangements and practical application of those arrangements as between men and women, and as between persons over 70, at the Tuggerah Lakes Golf Club. A substantial part of the complaint arises out of what Mr Traino alleges is preferential treatment of a club within the registered club, the sub-club being named the “Moaners”.

2 Mr Traino alleges that the sub-club receives priority bookings at tee-off times, and that there are differences between male and female, and between older and younger members of the club. Most of the complaints were declined by the President of the Anti-Discrimination Board and were then referred to the Administrative Decisions Tribunal pursuant to s 91 of the Anti-Discrimination Act 1977.

3 At the first case conference, the respondent gave notice that it would seek to have the complaint dismissed pursuant to s 111 of the Anti-Discrimination Act. Subsection 1 of that section provides:

Where at any stage of the inquiry, the Tribunal is satisfied that the complaint is frivolous, vexatious, misconceived, or lacking in substance or that for any other reason complaint should not be entertained, it may dismiss the complaint.
4 Directions were made at the first conference for the provision of evidence. Those directions were adhered to by each party and at the second case conference the matter was listed for the respondent’s s 111(1) application to dismiss the complaints.

5 Two weeks before the hearing of the application by this Tribunal, Mr Traino wrote a letter to the applicant and filed it with the Tribunal. That letter was dated 12 February 2003 and it reads:

Acting on advice given to me on 11 February 2003 that although my claim appears to be genuine, ... my complaint may be outside the interpretation and guidelines set out by the Anti-Discrimination Board and that because of this, my case may not succeed. Therefore, I am withdrawing my complaint against Tuggerah Lakes Golf Club. Due to the fact that my approach to this complaint has been a conciliatory one at all times, I believe that each party should pay their own costs.
6 Mr Traino adheres to the submission as to costs in the final sentence of his letter.

7 The respondent who has been represented today by Mr Johnston, solicitor, submits that the letter of 12 February 2002 constitutes a dismissal pursuant to Section 111 subsection 1A. That subsection reads:

The Tribunal may dismiss a complaint if satisfied that the person ... does not wish to proceed with the complaint.
8 That subsection is the appropriate means of determination of Mr Traino’s complaint. The respondent says Mr Traino should pay its costs of the application and submits that the appropriate section relating to costs is subs-s 111(2)of the Anti-Discrimination Act .

9 The usual approach of the Tribunal as to costs is set out in section 88(1) of the Administrative Decisions Tribunal Act as follows:

Subject to rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.
10 However, in this case, where a complaint is dismissed pursuant to s 111(1) of the Anti-Discrimination Act, section 111(2) provides:
Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.
11 Subsection 111(2) is an exception to the general rule in section 114 of the Anti-Discrimination Act which provides that, generally, each party to an enquiry shall pay his or her own costs.

12 Looking at this matter against the background of the usual rule that each party should pay their own costs, and that a costs order against a party should be made in a “special circumstances”, there is a discretion to order costs which may be exercised under s 111(2). Subsection 2 does not provide that an order for costs automatically flows where the tribunal exercises its discretion to dismiss a complaint under sub-s 111(1).

13 Mr Johnston for the respondent submitted that the Tribunal should adopt the opinion of Judicial Member Rees, in the matter of Crewdson v President, Anti-Discrimination Board of New South Wales [2000] New South Wales ADT60. In paragraph 56 of that decision, Judicial Member Rees said:-

“In my opinion it should be a rule of practice that the Tribunal will order costs against an unsuccessful complainant (unless truly exceptional circumstances exist) if the Tribunal dismisses a complaint under section 111(1) when the President has earlier declined the complaint pursuant to section 90(1) and the complaint has come before the Tribunal at the insistence of the complainant. Even if the complaint is fully heard, and section 111 is not invoked, the power to order costs granted by section 114(2) should be invoked (unless truly exceptional circumstances exist) if a complaint which is dismissed by the Tribunal is one which came before the Tribunal at the insistence of the complainant after it had been declined by the President.”
14 There are two areas of difference between this case and Crewdson . Firstly, in Crewdson , the comments of Judicial Registrar Rees were obiter . It is clear from paragraph 58 of the decision in Crewdson that no application for costs was made and therefore the Judicial Member’s comments were an expression of his opinion only. Secondly, the rule proposed by the Judicial Member is expressed to apply where the Tribunal dismisses a complaint under section 111(1). Subsection (1) is the section relating to dismissal where a complaint is frivolous, vexatious, misconceived or lacking in substance.

15 Mr Traino, on the other hand, sought the dismissal under section 111(1A), which relates to withdrawal of a complaint because he no longer wished to proceed with it. In the decision of the appeal panel in Tu v The University of Sydney(No 2)[2002] New South Wales ADT AP 25, the panel said:

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, ie those cases where the applicant was frivolous, vexatious or lacking in good faith.
16 In this case, although most of Mr Traino’s complaint had been declined by the President of the Anti-Discrimination Board, it is true to say that he did seek to re-agitate all of those matters before the Tribunal. Once the respondent sought dismissal pursuant to s 111(1), Mr Traino complied with timetable set at the case conference and, on seeking legal advice, he withdrew the application two weeks before the hearing.

17 It is submitted for the respondent that the withdrawal of the application was untenably late. With that submission, the Tribunal does not agree. Mr Traino’s withdrawal was timely and reasonable and, in the circumstances, the Tribunal is not persuaded that there should be any order as to costs. The order of the Tribunal is that the application for costs is dismissed.