Tu v University of Sydney (No 2)

[2002] NSWADTAP 25

Set aside by Appeal: Set aside by appeal on 18 July 2003 (Court of Appeal)

Appeal Panel

CITATION:	Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
PARTIES:	APPELLANT John Hsiao-Kong Tu RESPONDENT University of Sydney
FILE NUMBER:	019002
HEARING DATES:	Not Applicable
SUBMISSIONS CLOSED:	07/09/2002
DATE OF DECISION:	08/13/2002
DECISION UNDER APPEAL:	Not applicable
BEFORE:	O'Connor K - DCJ (President); Rees N - Judicial Member; Alt M - Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	991004
DATE OF DECISION UNDER APPEAL:
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Freedom of Information Act 1989 Legal Profession Act 1987 Victorian Civil and Administrative Tribunal Act 1998
CASES CITED:	Tu v University of Sydney [2002] NSWADTAP 19 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Prasad & anor -v- Fairfield City Council (RLD) [2002] NSWADTAP 2 Alessa Pty Limited -v- Total & Universal Pty Limited (RLD) [2002] NSWADTAP 16 Langley v University of New South Wales (1984) EOC 92-018 Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) Fonua v Broken Hill Proprietary Co Ltd & ors [1999] NSWADT 59 Ram Mishra v University of Technology, Sydney, No 23 of 1998, [1998] NSWADT (14 October 1998) Sivananthan v Commissioner of Police [2002] NSWADT 45
REPRESENTATION:	APPELLANT S Winters, barrister RESPONDENT J Oakley, barrister
ORDERS:	1. In relation to the original proceedings before the Equal Opportunity Division (matter no 991004), the appellant pay the respondent’s costs in relation to the services of one legal practitioner for the case conference held on 23 August 2000, the telephone conference held on 13 November 2000, and for the days of hearing, 18 and 20 December 2000, and 10 January 2001. ; 2. In relation to the proceedings before the Appeal Panel (matter no 019002), the appellant pay the respondent’s costs of the appeal in relation to the services of one legal practitioner.; 3. If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with the Legal Profession Act 1987.

1 In Tu v University of Sydney [2002] NSWADTAP 19 the Appeal Panel dismissed an appeal against a decision of the Equal Opportunity Division (the Tribunal) to dismiss summarily a complaint made by the complainant, Mr Tu, against the University under the Anti-Discrimination Act 1977 (ADA). The summary dismissal decision was made on 10 January 2001.

2 The Tribunal reserved its decision on an application by the respondent, the University, for its costs. Subsequently, the parties made written submissions. The issue was not dealt with pending resolution of the appeal. For various reasons, the appeal was not heard until March 2002, and a decision was delivered on 31 May 2002.

3 There is now a further application from the University, for the costs of the appeal. The Appeal Panel decided in the circumstances that it should dispose of all costs applications, and gave directions for the filing of submissions as to the latest application in relation to the costs of the appeal. Those submissions have been filed.

The Complaint Generally

4 To assist in evaluating the costs applications, it is helpful to provide a general outline of the complaint, as derived from the report by the President, Anti-Discrimination Board (ADB) referring the complaint to the Tribunal. The report was received into evidence on 20 December 2000. The following account does not seek to make any formal findings of fact. It is a summary derived from the executive report at the front of the President’s report and the content of the annexures.

5 The complaint was made to the ADB on 3 December 1996. It alleged discrimination on the ground of race in the provision of education services.

6 Mr Tu is of Chinese background. According to the material, he came to Australia in June 1989, was granted residence in Australia in January 1992 and became an Australian citizen in October 1995. He was a student in orthodontics (master’s degree) at the University, commencing in 1989, having undertaken an undergraduate degree in dentistry at a foreign university. He undertook first and second years of the master’s degree in 1990 and 1991. He deferred during 1992 for financial reasons.

7 According to the University (letter dated 1 April 1998 to the Board), he completed the principal requirements of first and second years but failed the final assessment by a panel of examiners, and as a result failed second year. He resumed in 1993. The material attached to the President’s report indicates that Mr Tu may have understood that he had fully completed first and second years. It would appear that he was allowed to proceed to third year. He failed third year and was required to repeat in 1994. He again deferred in 1994 for financial reasons.

8 At a meeting on 28 March 1995, Professor Sims, Head, Discipline of Orthodontics in the Faculty of Dentistry outlined to Mr Tu the requirements that he felt it was now necessary for Mr Tu to undertake in order to complete the degree.

9 On 6 July 1996, Professor Sims formally recommended that his candidature for the degree be discontinued if he did not successfully pass the Barrier Examinations on July 1 and July 2. It is not clear whether he undertook those exams.

10 In any case, on 5 August 1996, Professor Sims wrote to Mr Tu setting out a timetable for completion of ‘final examinations’ in the following October. Mr Tu then sought an extension of this timetable to March 1997. It is not clear how that request was dealt with.

11 In a letter dated 30 September 1996 to the University he expressed concern over what he saw as a change in the practical case work requirements as compared to when he entered the course (number of patients to be prepared over a given period); and claimed that he had successfully completed the requirements of first and second year, and now might be required to re-do some of the exams.

12 He also claimed that relevant records relating to his marks for exams in the past had disappeared. He asserts in that letter that Professor Sims had treated him differently to other students, due to him being the only overseas orthodontics student with an Asian background who had been allowed to stay in Australia. He claimed that he was not treated as an Australian citizen would have been, in a fair and just manner.

13 In November 1996 Mr Tu had been dismissed from his part-time position as an orthodontic registrar at the United Dental Hospital, Central Sydney Area Health Service when the Hospital learnt that he was unable to demonstrate satisfactory progress in his orthodontic studies; dismissal upheld on appeal by the Industrial Relations Commission (decision 14 July 1997).

14 Nonetheless he was permitted to re-enrol in 1997. He disputed the appointments made to the panel of examiners, to which the University replied by letters dated 19 September 1997 and 24 October 1997. By letter dated 12 November 1997 the University formally advised that, having considered the reports of the examiners and the recommendation of the Head of Discipline, the Board of Postgraduate Studies had resolved that he was not qualified for the award of a degree; and had terminated his candidature.

15 Subsequent to the internal complaint of 30 September 1996, Professor Sims made enquiries about Mr Tu’s immigration status with the Department of Immigration. This occurred on 4 and 14 October 1996.

16 Mr Tu expressed concern in his complaint to the Board over the need or justification for these communications, noting that he had previously lodged documents with the Faculty covering, one, the grant of residence, and, two, the grant of citizenship. He claimed that these enquiries may have constituted racial discrimination against him. (Relevant Departmental records were released to him under the Commonwealth Freedom of Information Act 1982 on 13 February 1997.)

17 In a second letter of 12 September 1997 he alleged that the enquiries made of the Department of Immigration constituted victimisation under the Act. In that letter, he made a further complaint that the Faculty and Professor Sims had deliberately created confusion about his candidature, neglected to mark past exam papers and could not account for the disappearance of a large part of his university records. He stated that he was, as a result, unable to progress; and had been treated less favourably than other students because of his race. Additional allegations were made by letters dated 15 September 1997 and 16 November 1997 (the latter following the advice that his candidature had been terminated).

18 On 15 January 1998 the Board sought a formal response from the University. On 14 April 1998 the University provided a detailed reply (tab 6 of the Board’s report). Essentially it said that Mr Tu’s grievances had as their background changes to the examination requirements that occurred in 1994; and related to increasing the requirement as to the number of patients that a candidate must treat for the purpose of casework presentations.

19 The University said that Mr Tu had suffered setbacks in his course because his competency was not sufficient to meet these and other requirements. It stated that all actions taken in relation to Mr Tu, such as the appointment of examiners and requests for information from the Department of Immigration, were carried out in accordance with University procedures, and were not done to cause disadvantage to Mr Tu because he had raised concerns about discrimination. The University stated in its reply that the breaks that Mr Tu had taken from his course had caused him to lose continuity in the treatment of patients who were the subject of the casework requirements, with the result that he had to commence new cases.

20 Mr Tu also made a complaint to the NSW Privacy Committee over Professor Sims’ calls to the Immigration Department. The Department had refused to release any information with written evidence of Mr Tu’s consent (in accordance with the requirements of the Commonwealth Privacy Act 1988). The Privacy Committee was of the view that the University did not provide a satisfactory explanation as to the timing of Professor Sims’ contact with the Department. On the other hand it was unable to reach a conclusion as to whether Professor Sims accessed Mr Tu’s file without authorisation.

21 The above summary account is drawn from the executive summary at the front of the President’s report; and the annexures to the report.

22 The Board was unable to resolve the complaint by conciliation. At the request of Mr Tu, it was referred to the Tribunal on 6 January 1999.

The Complaint in the Tribunal

23 The history of the complaint in the Tribunal is a tortuous one. The following material is drawn from a scrutiny of the Registry file, the submissions of the University’s solicitors on costs filed 13 February 2001 (before the original Tribunal), and taking account of the submissions of Mr Tu, including his affidavit dated 20 February 2002 regarding the history of events. In adopting this course, we note that the Tribunal ‘may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.’ (Administrative Decisions Tribunal Act 1977 (the Tribunal Act), s 75(2)).

24 There have been attendances at the Tribunal by the parties at least as follows: 24 March 1999 (directions); mediation session, 24 May 1999; 21 July 1999 (Mr Tu advised that he was seeking legal aid); 18 August 1999 (substantive directions to Mr Tu to file and serve material on which he relied within 56 days of that date, not complied with); 27 October 1999 (Mr Tu not in attendance, fresh direction to file and serve material by 30 November 1999, not complied with); 17 November 1999, date extended to 14 December 1999, not complied with; 15 December 1999, direction that complainant file and serve material within 28 days of a summons to be served on the University being answered; summons to produce served on University on 23 December 1999; return date in respect of a large amount of material, 21 January 2000, University seeks further time to respond, granted; numerous documents produced to Tribunal on 2 February 2000; University claims privilege over many documents; Mr Tu directed to provide written response to the University’s contentions in that regard, not complied with; listed for hearing 1 March 2000, date vacated because Mr Tu advised Tribunal that he was unable to attend due to illness; relisted for 5 April 2000; unable to proceed that day (University solicitor unwell); 5 April, direction made that Mr Tu comply with any outstanding order by the end of May 2000 and the University was granted leave to have the matter listed for the hearing of a s 111 application.

25 On 30 April 2000 Mr Tu advised the Registry that he had sent points of claim to the solicitors for the University (Minter Ellison). On 1 May 2000 Mr Tu provided the University’s solicitors with a copy of a letter dated 1 March 2000 which, according to the University’s submissions, ‘purported’ to be his points of claim.

26 There were several enquiries by the University’s solicitors of Mr Tu as to whether there was to be any more material.

27 On 7 July 2000 the University advised Mr Tu that it would seek the costs of preparing for and attending the next directions hearing.

28 The matter was listed for a case conference on 23 August. By this time Mr Tu had the firm, Harish Prasad and Associates, acting for him. At this point, according to the University’s solicitors, Mr Tu’s counsel requested 8 weeks in which to prepare his material because of the number of witnesses and because some of them were located outside Sydney. The complainant was directed to provide statements of evidence he intended to rely upon by 4 October 2000, direction not complied with. This conference gave rise to a timetable for the putting on of evidence, with a series of specific directions, leading up to a hearing date, 18-22 December 2000. Points of claim were served on 13 September 2000 as directed.

29 By solicitors’ letter dated 17 October 2000 Mr Tu sought a variation to the timetable, citing difficulties in contacting witnesses over the Olympic period and work difficulties. The University’s solicitors strongly opposed any variation to the timetable. There were enquiries from the Tribunal to Mr Tu’s solicitor as to what progress had been achieved in meeting the timetable. By letter dated 24 October 2000 the Tribunal advised that it would not entertain any adjournment applications.

30 The upshot was that a further telephone case conference was convened on 13 November 2000. By this point the University had foreshadowed that it would be making a s 111 summary dismissal application. At the case conference on 13 November 2000 the Judicial Member varied the directions to require the applicant to file all outstanding statements of evidence by 17 November 2000, and gave the University a further 7 days to make its submissions in respect of the s 111 dismissal application should Mr Tu not comply with the earlier direction. There were no witness statements filed.

31 Mr Tu’s solicitor advised on 15 December 2000 that Ms Winters of counsel had been engaged and she would deal with the ‘witnesses situation at the time of the hearing.’

32 Counsel for Mr Tu advised the University’s solicitors on Friday 15 December, with the case due to commence on the Monday morning, that only Mr Tu himself would be available at the hearing. Mr Tu had indicated in the past that he would be calling up to 9 witnesses.

33 By fax time-marked ‘Mon 10:01’ on the morning of 18 December 2000, Mr Tu advised the Registry that he was very sick and would be unable to attend, enclosing a medical certificate dated 17 December 2000. Counsel for Mr Tu advised the Tribunal similarly at the commencement of proceedings. The Tribunal adjourned the matter. The Tribunal resumed on 20 December 2000. Mr Tu was not in attendance due to sickness, and the hearing proceeded to the limited extent described in our earlier decision. On 10 January 2001 Mr Tu was present when the proceedings resumed before the reconstituted Tribunal. Then the events described in our earlier decision occurred leading to the summary dismissal of the complaint; upheld by our earlier decision.

The University’s Application for Costs

34 The Appeal Panel has considered the following written submissions on the question of the University’s application for costs:

(a) as to the original proceedings that culminated on 10 January 2001: the University’s submissions dated 12 February 2001 and the Mr Tu/applicant’s submissions dated 25 February 2001 (in relation to the costs of the proceedings before the Tribunal); and

(b) as to the appeal, the University’s submissions dated 7 June 2002 and Mr Tu/applicant’s submissions dated 13 June 2002.

35 (We pause here to note that we do not accept that the Tribunal or an Appeal Panel may decline to give the parties an opportunity to make submissions in respect of costs applications; and to the extent do not accept the observations made by an Appeal Panel, differently constituted in Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 at [39-41]. See further as to procedural fairness and costs orders, Prasad & anor -v- Fairfield City Council (RLD) [2002] NSWADTAP 2; Alessa Pty Limited -v- Total & Universal Pty Limited (RLD) [2002] NSWADTAP 16.)

(1) Costs of the Original Proceedings

36 In this case, as the complaint was dismissed pursuant to s 111(1) of the ADA, with the position in relation to costs dealt with by s 111(2). Sub-sections (1), (2) and (3) are relevant, and provide:

‘ 111. Tribunal may dismiss frivolous etc complaints

(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

(1A) …

(1B) …

(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.

(3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997.’

37 Sub-section (2)does not contain any qualification to the effect that an order should only be made in ‘special circumstances’. On its face it reflects the ordinary rule as to costs. It stands in contradistinction to the rule expressed in s 114 of the ADA which provides:
‘ 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.’

38 The power to award costs under s 111 is not fettered in the way that applies to s 114. Hutley JA said of s 111(2) in Langley v University of New South Wales (1984) EOC 92-018 at 75468:
‘One of the few effective methods of controlling what amounts to the abuse of opportunities opened by [the ADA] is by making orders for costs. [His Honour referred to s 111(2)]. This inquiry before the Board must have involved very serious expense to the University. We understand that the universities’ financial positions are not good. In my opinion the complaints in this case lacked any conceivable merit in fact or law. Under those circumstances my only criticism of the proceedings so far is that this was a case in which the complainant was not ordered to pay the costs by the Tribunal. That is the one effective sanction available to keep this Act within bounds and ensure it will not be made the subject of gross abuse.’
39 Nonetheless the proposition that the s 111(2) discretion should ordinarily be exercised in favour of the successful party has not been fully embraced in the equal opportunity jurisdiction. Equal opportunity tribunals have referred to the special character of the jurisdiction, which seeks to protect and promote the observance of fundamental human rights. For example in Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) it was said that the human rights protection objective ‘might be thwarted if complainants were to be discouraged from pursuing claims before the Tribunal due to fear of the amounts that may be awarded against them for inter alia legal costs if unsuccessful on those claims’.

40 However in that case the Tribunal did go on to make a costs order against the complainant. On the complainant’s own application, the complaint was dismissed after five days of hearing. The Tribunal was satisfied that the complaint was misconceived and lacking in substance. It noted that the complainant made a series of admissions under cross examination which cast doubt on the complainant’s bona fides in bringing the complaint; he admitted that he lied under oath.

41 In Fonua v Broken Hill Proprietary Co Ltd & ors [1999] NSWADT 59 the Tribunal found the various complaints of racial discrimination and victimisation in connection with employment misconceived and lacking in substance. They were dismissed pursuant to s 111. The Tribunal went on to examine particular aspects of the behaviour of the complainant, and stated that these circumstances ‘suggested’ that in addition the complaints were frivolous and vexatious. While it made no formal findings to that effect, in these circumstances the Tribunal considered it appropriate to order the complainant to pay the respondent’s costs. For another illustration see Ram Mishra v University of Technology, Sydney, No 23 of 1998, [1998] NSWADT (14 October 1998).

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.

43 Where a matter is found to be ‘misconceived’ or ‘lacking in substance’ there is greater caution in making an adverse costs order. A complaint may be ‘misconceived’ or ‘lacking in substance’ for technical legal reasons (e.g. jurisdictional limitations, absence of preconditions as to proof of key facts) which may be lost on the (typically unrepresented) complainant. In these circumstances respondents are often left to bear the cost, because of the greater public interests involved in upholding the making of complaints of violation of human rights: for a recent discussion of these matters see Sivananthan v Commissioner of Police [2002] NSWADT 45 at [16-28].

44 A similar approach is reflected in the Victorian tribunal’s rulings on costs. As to the practice in Victoria, where applications are resolved by reference to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (a no-costs rule, with statutory guidance given as to circumstances in which costs may be awarded), see generally Pizer, Pizer’s Annotated VCAT Act (2001) [4039.2].

45 In this case the summary dismissal decision was not made on the basis of abuse of process, or for a more technical legal reason. It fell into the final ‘any other reason’ category of s 111(1). The particular reason upon which the Tribunal relied was Mr Tu’s failure to prosecute his complaint, without good reason, at the time set down for the hearing of the complaint.

46 We have set out at some length at the beginning of these reasons the nature of the original complaint. We have also set out in summary the history of the complaint’s progress in the Tribunal. The complaint initially focused on the request for information made by the head of orthodontics to the Immigration Department. It was widened later to focus on the fairness of the examination and accreditation system for which the head was primarily responsible. It was a complaint of the utmost seriousness for a University – the allegation being in essence that because of his Chinese background the University dealt with the complainant differently and less fairly than it dealt with other candidates for the degree.

47 The equal opportunity jurisdiction like most of the other jurisdictions of the Tribunal is intended to function as a low-cost, relatively informal, expeditious forum for the resolution of disputes that involve deeply sensitive issues. For those goals to be achieved there must be active co-operation with the case management discipline of the Tribunal.

48 The University referred to two factors as favouring a costs order against the Mr Tu: the fact of summary dismissal; and his ‘persistent failure’ to comply with directions. The University said that Mr Tu failed to comply with the directions of the Tribunal on at least 8 occasions and failed to appear on at least 6 occasions on which the matter was listed.

49 While we do not adopt the precise numbers given by the University, we are satisfied from our review of the history of the proceedings, and taking account of the explanations given on some matters by Mr Tu in his affidavit filed 20 February 2002, that there was a substantial failure on his part to co-operate with directions and respond to them in a timely way. This failure on his part contributed significantly to the costs of the University.

50 Non-co-operation of the kind that has occurred in this case also damages the public interest in other ways. The Tribunal’s resources are diverted. The Tribunal, as this history demonstrates, ends up having to undertake many more contacts with parties, and arrange many more directions hearings, case conferences and like events in order to progress the matter. Staff time is wasted, and members’ sitting fees are unnecessarily incurred. These practices defeat the pressing need for there to be greater timeliness in the disposal of cases. Toleration of complainant behaviour of this kind in a jurisdiction where ordinarily no costs orders are made allows them to inflict a punishment on respondents with whom they are aggrieved even if the ultimate suit is lost or abandoned. In this case, Mr Tu ultimately abandoned the suit by his conduct on 10 January 2002.

51 The administrative history recounted earlier in these reasons graphically highlights the lack of any reasonable progress of this case. The Tribunal can only drive the case forward with the co-operation of the complainant. The complainant was given considerable latitude by the Tribunal. The University was tolerant until July 2000, when it notified Mr Tu that it would be seeking costs and moving for summary dismissal. Mr Tu then advised that 9 witnesses would be called. He never produced outlines of evidence. On the day before the hearing was due to commence his counsel advised that only Mr Tu would be giving evidence.

52 Mr Tu’s counsel replied to the University’s submissions on costs by submissions dated 25 February 2001. She made two points. One, that it was not open to the Tribunal to make findings in relation to the conduct of Mr Tu in the terms submitted by the University without receiving evidence and making formal findings of fact. Her other submission was to reject the University’s submission that his complaint was unsubstantiated. In that regard she referred to the President’s report, in particular Professor Sims’ attempts to get information from the Immigration Department.

53 In our view it is open to the Tribunal in exercising its discretion on costs to have regard to the Registry file, and the history that it discloses. Mr Tu’s counsel asserted that there was no evidence that Mr Tu had disregarded the directions of the Tribunal. Mr Tu in his affidavit filed 20 February 2002 provided a series of explanations as to what had occurred at the various directions hearings and other case management events. As from about 7 July 2000, Mr Tu was legally represented. See his affidavit paragraphs 13 and following. He refers in his affidavit to the case conference of 23 August 2000 attended by his counsel, and the directions made. Importantly he provides no explanation of the failure to comply with the critical direction, no 3 (witness statements). This is in a context where as a result of submissions made at the case conference, 5 days had initially been set aside for hearing.

54 His principal explanations for non-co-operation were that he had applied for legal representation to the Legal Aid Commission in July 1999, had been refused and had appealed. He said that he could not afford legal representation until 23 August 2000. A number of other non-attendances were explained as being due to sickness, and that he had always supplied medical certificates. In the last part of the affidavit he referred to his personal circumstances, including that his only earnings are as a taxi driver, and that he has a family to support. He said he was present in the Tribunal on 15 occasions over the period 24 March 1999 to 10 January 2000, and was only unable to attend on 3 occasions – 27 October 1999, 1 March 2000 and 18-20 December 2000.

55 Mr Tu’s complaints were wide-ranging ones. Racial discrimination complaints are inherently difficult to prove. There is rarely overt racial conduct; and even rarer are admissions that conduct seen by the complainant as racial had that motivation, purpose or effect. They are cases of a kind that are likely to benefit from competent legal representation.

56 Mr Tu obtained legal representation around July 2000. There was a critical failure to comply with directions in relation to witness statements. That lead to further case management steps by the Tribunal.

57 We are not inclined on the present occasion to go so far as to grant the University’s application in full, though a strong case has been presented in that regard by the University.

58 For the reasons given, we consider that some caution should be shown in the equal opportunity jurisdiction in exposing the complainant to the whole of the respondent’s costs even where the complaint has been summarily dismissed. Some account also needs to be taken of the commonly-unequal positions in terms of access to legal resources that arises as between applicants and respondents. Inequality in relation to legal resources manifested itself in this case, and the applicant sought to obtain legal aid. Regrettably, legal aid is strictly rationed; and there must come a point at which the case must proceed rather than let it wait any longer.

59 In our view, the point at which the delay became so unreasonable as to warrant intervention by way of a costs order was reached in July 2000. In our view, Mr Tu should pay the University’s costs of the attendance of a solicitor at the case conference held on 23 August 2000, the University’s costs of the attendance of a legal practitioner at the telephone conference held on 13 November 2000, and its costs in respect of a legal practitioner for the days of hearing - 18 and 20 December 2000, and 10 January 2001.

(2) Costs of the Appeal

60 The Appeal Panel has the powers as to costs vested in the Tribunal. The powers in respect of costs conferred by the ADA and the Tribunal Act give them to the ‘Tribunal’. The Appeal Panel is a constituent element of the Tribunal: see, for instance, definition of Appeal Panel in s 4(1) of the Tribunal Act. The Appeal Panel has no separate power to make orders for costs.

61 The access principles that may justify a liberal view in respect of non-use of the costs sanction at the primary level of the Tribunal should not be as readily applied in respect of failed appeals.

62 In equal opportunity appeals a distinction should be drawn between appeals against summary dismissal decisions and appeals in respect of matters that were fully heard and determined. Appellants against summary dismissal decisions who fail on appeal should normally be required to meet the respondent’s costs of the appeal (at least to the extent of the services of one legal practitioner). There should be a fuller adoption of the rule in s 111(2) of the ADA than may be appropriate at first instance.

63 In cases where there has been a full contest and an appeal is lodged, the position will often be different, and often there may be no order as to costs in relation to the appeal, in keeping with the approach reflected in s 114 of the ADA. The appeal though unsuccessful may have, for example, raised an important point of law that was not free from doubt.

64 In this case, we agree, in essence, with the University’s submissions of 7 June 2002. Mr Tu’s submissions of 14 June 2002 essentially reiterate the points made in the affidavit of 20 February 2002. He also submitted that he had been guided by counsel in the matter of the appeal, and that as there were no guidelines on the operation of s 79 of the Tribunal Act (the reconstitution provision) it was reasonable to test the provision by way of the appeal. We do not agree.

65 Mr Tu clearly took a critical decision in not continuing to appear before the Tribunal on 10 January 2002. He ran the risk of a dismissal of his complaint. The University has in our view unnecessarily been exposed to an appeal, and a further delay in obtaining finality in this matter. The result has been that a complaint referred to the Tribunal in January 1999 was not disposed of at first instance until January 2001, and not until 31 May 2002 in respect of the main appeal.

The Scope of the Costs Orders

66 It will be seen from the Orders that follow that the costs orders do not follow the usual form.

67 Section 111(3) ADA provides that nothing in s 111 limits the generality of the powers of the Tribunal under Chapter 6 of the Tribunal Act, which includes the general costs provision, s 88. While s 88(1) is displaced by s 111(2) of the ADA in this case, the remainder of the provision is unaffected in particular s 88(2)(a) which provides:

‘(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid.’
68 In the case of both costs orders, the Panel has limited the costs payable to the University in respect of its use of one legal practitioner (for it to choose) in respect of each of the events listed. This approach seeks to reflect the Appeal Panel’s view that restraint should be encouraged as to the extent of the engagement of legal representation.

ORDERS

The Tribunal orders as follows:

1. In relation to the original proceedings before the Equal Opportunity Division (matter no 991004), the appellant pay the respondent’s costs in relation to the services of one legal practitioner for the case conference held on 23 August 2000, the telephone conference held on 13 November 2000, and for the days of hearing, 18 and 20 December 2000, and 10 January 2001.

2. In relation to the proceedings before the Appeal Panel (matter no 019002), the appellant pay the respondent’s costs of the appeal in relation to the services of one legal practitioner.

3. If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with the Legal Profession Act 1987.