West v Commissioner of Police (No 2)

[2010] NSWADT 40

CITATION:

West v Commissioner of Police (No 2) [2010] NSWADT 40

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Paul West and Ors

FIRST RESPONDENT
Commissioner of Police

SECOND RESPONDENT
Paul Horner

FILE NUMBER:

071017

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

28 August 2009

 
DATE OF DECISION: 

11 February 2010

BEFORE:

Huntsman C - Judicial Member; Kelleghan D - Non-Judicial Member; Lowe A - Non-Judicial Member

CATCHWORDS:

Costs application

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

Potier v Department of Corrective Services [2009] NSWADT 143 (16 June 2009)
Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302
Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71
Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175

REPRESENTATION:

APPLICANT
D Hillard, solicitor

FIRST RESPONDENT
M Rizzo, solicitor

SECOND RESPONDENT
S Wood, solicitor

ORDERS:

Each party is to pay its own costs in the proceedings

REASONS FOR DECISION

1 In September 2004, Aboriginal Community Liaison officer, Paul West, and 16 colleagues lodged a complaint with the Anti–Discrimination Board against their employer, the Commissioner of Police, NSW Police Service. The complaint concerned an email circulated on the Commissioner’s internal email system.

2 After investigating and attempting to conciliate the complaint, the President of the Anti–Discrimination Board referred it to the Administrative Decisions Tribunal under s 93B of the Anti–Discrimination Act 1977 (AD Act).

3 These reasons address an application for costs made after completion of the proceedings, by the second respondent, Mr Horner, that the first respondent pay the second respondent’s costs.

4 The second respondent was joined as a party to the proceedings by the Tribunal by order dated 5 October 2007. Reasons for Decision were issued for that order by Deputy President A. Britton (West & Ors v Commissioner of Police, NSW Police [2007] NSWADT240). On that date a timetable was set as follows:

By consent the following timetable is to apply:
1. The matter is to be set down for mediation at a date to be fixed by the Registrar but not before 28 days from the date of this decision.
2. The parties are to confer and provide the Registrar with at least two agreed dates for the mediation.
3. In the event that the mediation does not resolve the complaint, the following timetable will come into effect:
a) Within 28 days of the mediation the applicants are to file and serve points of claim and all evidence on which they seek to rely.
b) Within 28 days of service of the applicants’ material the respondents are to file and serve points of defence and all evidence on which each seek to rely.
c) Within 14 days of service of the respondents’ material, the applicants may file and serve any evidence in reply.
d) At the conclusion of the mediation the mediator is requested to set a date for a further case conference, to be held approximately 56 days from the date of the mediation.

5 Mediation was held in March 2008 and it is recorded in the Tribunal file that Case conferences were subsequently held on 7 May 2008, 13 August 2008, 4 November 2008, 11 March 2009, 3 June 2009, and the matter was reported as settled as between the first respondent and the applicants on 17 June 2009. On 1 July 2009 the case was dismissed as against the first respondent, due to settlement, and on 29 July 2009 the case was dismissed as against the second respondent, due to settlement. Parties attended the mediation, and the case conferences on 7 May 2008, 13 August 2008 and 3 June 2009 but attendances were not required on other occasions.

6 A written submission, being an application that the first respondent pay the second respondent’s costs, was received on 5 August 2009 and a written submission in response was received from the first respondent on 28 August 2009. A further written submission was received from the second respondent dated 7 September 2009.

Case of second respondent

7 The second respondent refers to the provisions of ss88 and 110 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), that costs may be awarded in the present case. The second respondent, in summary, submits that the first respondent unreasonably failed to settle the matter at mediation in March 2008 incurring the second respondent costs. The second respondent submits that after mediation the second respondent was required to attend at least two further case conferences as well as brief counsel (as it appeared the matter would run) and incur other costs incidental to the proceedings. The second respondent submits that the first respondent should pay the costs of the second respondent after the mediation of 19 March 2008, which is the date which the second respondent submits that the first respondent unreasonably failed to agree to implement a training package requested by the applicants. It is submitted that the first respondent did eventually agree to implement a training package and the matter then settled as against the first respondent and the applicants were then in a position to accept the offer put by the second respondent at or before mediation.” The second respondent submits that the failure of the first respondent to agree to implement the training package at the mediation caused several unnecessary adjournments. A “without prejudice” letter from the applicants’ solicitors of 11 March 2008 is attached to the submission of the second respondent which raises a number of matters sought to be resolved at mediation, one of which was cultural awareness training (point 3).

Case of first respondent

8 In written submissions the first respondent refers to the provisions of s88(1A) of the ADT Act which it is submitted introduced the concept of fairness, and that the concept of special circumstances was removed. It is submitted that the second respondent relies on s88(1A)(a) of the Act by submitting that the first respondent’s alleged refusal to accept the offer to implement a training package in March 2008 was conduct which resulted in several “unnecessary adjournments” thus causing the second respondent disadvantage. The first respondent notes that the case conferences of 13 August 2008, 4 November 2008, 3 February 2009, 11 March 2009, and 22 April 2009 were adjourned by consent because settlement discussions were continuing and that the parties were not required to appear.

9 The first respondent submits that the general rule is that each party bear their own costs and that there is no evidence of conduct on the part of the first respondent which would warrant departure from the general rule.

10 In relation to the training package issue the first respondent provides detailed written submissions which in summary state that there was no unreasonable refusal by the first respondent to implement a training package. It is submitted that in March 2008 the applicants and the first respondent agreed to have further discussions about the nature of the training package. It is submitted that this was a complex issue which required lengthy consultations with numerous stakeholders, and practical issues had to be worked out such as how to implement the package. It is submitted that these consultations were ongoing after the mediation and that the first respondent was not idle on this issue.

11 It is submitted that the adjournments were by consent and it is submitted that it is not clear how they caused the incurring of costs by the second respondent. It is further submitted that some of the adjournments were proposed by the applicants. It is submitted that there were eight applicants in different remote geographic locations which also caused difficulties in the obtaining of all the applicants views about the training package, such difficulties it is submitted were experienced by the applicants’ lawyer.

12 The first respondent submits that while there were directions for the filing of evidence the likelihood of settlement was known to all parties.

Further submission of the second respondent

13 The second respondent submits that the mediation did not conclude with a proposal for further settlement negotiations but rather it was determined that the matter would be set down for hearing as evidenced by the first case conference after the mediation when orders for filing of evidence were made. It is submitted that after these orders the second respondent began to prepare his case, brief counsel including conference. The submission of first respondent that it was not idle after the mediation was noted and the second respondent submits that “this may well be the case” however this does not alter the fact that the matter was timetabled for hearing. The submission of first respondent that it was always made clear that settlement was being pursued is disputed by the second respondent who submits that it was not until well after the mediation and directions for filing and serving evidence that it appeared that the matter would settle. The second respondent’s submission is that the first respondent’s approach to mediation was to refuse settlement at that point and agree that the matter proceed to hearing.

The Law

14 Section 88 of the ADT Act provides as follows:

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(1A) Subject to the 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 it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

15 These legislative provisions have been subject of discussion in recent Tribunal decisions. In the case Potier v Department of Corrective Services [2009] NSWADT 143 (16 June 2009) the following was stated:

“19 In Corrigan & Gibson v Watson [2009] NSWADT 110, the Tribunal discussed the new provisions. The Tribunal pointed out that:
8.Section 88 is not specifically referred to in the Attorney General's second reading speech of the Administrative Decisions Tribunal Amendment Bill 2008 (Bill), which introduced it. However, the notes to the Bill state that:
Currently, section 88(1) provides that costs may be awarded only if the Tribunal is satisfied that there are special circumstances. The new provisions are based largely on the provisions of s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) of Victoria.

9 Section 88 begins with a general statement of principle that each party to proceedings is to bear his or her own costs. That principle is different from the principle that applies in courts. In the absence of special circumstances, courts generally exercise their discretion to award costs in favour of the successful party, that is ‘costs follow the event’: Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 207-208. Section 88 gives the Tribunal a discretion to award costs ‘but only if it is satisfied that it is fair to do so’ having regard to certain matters which are listed at (a) to (e). Those matters include ‘any other matter that the Tribunal considers relevant’. Contrary to the Respondent’s submission, decisions of courts in relation to the circumstances in which it is appropriate to award costs on an indemnity basis, are of limited relevance to proceedings in the Tribunal.
10 The Tribunal is empowered by sub-section (2) to determine by whom and to what extent costs are paid. Costs are usually awarded on what is known as a ‘party/party’ basis, that is, the costs that are ‘fair and reasonable’ for the work: Legal Profession Act2004, s 364(1). ...

11 Section 109 of the VCAT Act has been in operation for more than 10 years. Given the similarity of that provision to s 88, decisions of VCAT are relevant when interpreting s 88. ...

20 An application for costs must be founded on the party's conduct in the proceedings currently before the Tribunal. The issues that Mr Potier has raised as supporting his application for costs are either not ones that can be taken into account in regard to this costs application or are not persuasive.

21 The factors set out in subsections 88(1A) (a) - (e) concern the manner in which a party has conducted the proceedings. In my view, the Department's failure to identify all the documents that fall within the scope of the FOI application is not conduct in these proceedings that can give rise to an order under section 88. In order to warrant an order for costs the Department must have conducted the proceedings in a way that unnecessarily disadvantaged Mr Potier. Mr Potier has not identified factors that I find sufficiently persuasive to shift from the general principle that each party to proceedings is to bear his or her own costs.

22 I note however that on several occasions, hearings in this matter were either delayed or abandoned as a consequence of the Department’s failure to make arrangements for Mr Potier to attend the hearing. It seems that this was a consequence of problems in the internal administrative processes of the Department. On each occasion the Department’s legal advisors attempted to resolve this issue but their efforts were not always successful. As a consequence, hearings were adjourned. In my view this is conduct of the kind that falls within the scope of subsection 88(1A) (a) (iv) i.e. "causing an adjournment". The Department’s failure to make arrangements for Mr Potier to attend the hearing has been responsible for prolonging unreasonably the time taken to complete the proceedings: subsection 88(1A) (b).

23 In other circumstances, this conduct might give rise to an order for costs in favour of an applicant. However, while I accept that Mr Potier has been inconvenienced by this conduct, I am not satisfied that it has resulted in his incurring out-of-pocket expenses that should be compensated.

24 In my view, this is not a matter where an order for costs is warranted. Accordingly, each party is to bear their own costs.”

16 In the case of Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302 there the following observations were made by the Tribunal:

“5 The main provision relating to costs in the Tribunal is section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

6 Pursuant to the ADT Act, the general rule has always been that each party bears its own costs. The previous section 88 of the ADT Act permitted the Tribunal to make an order that one party pay the costs of another party but only if "special circumstances" existed. The question of what constituted "special circumstances" justifying an order for costs was the subject of a number of previous decisions at first instance and upon appeal, which need not be recited here.

7 Since January 2009, the newly amended section 88 (1A) of the ADT Act has provided that the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is "fair to do so" having regard to five defined factors which may permit an order for costs:
a. the manner in which a party has conducted the proceedings
b. whether a party has been responsible for unreasonably prolonging the time taken to complete the proceedings
c. the relevant strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law
d. the nature and complexity of the proceedings, and
e. any other matter that the Tribunal considers relevant.

8 The Tribunal’s Practice Note 22 contains guidelines concerning costs. Paragraph 5 of this Practice Note recites the terms of section 88(1A) and confirms that many of those matters now listed in this section are similar to the "special circumstances" previously identified by the Tribunal as justifying an award of costs under the old provisions.

9 Unless there is some particular circumstance falling within the ambit of section 88(1A) of the ADT Act, each party should bear its own costs.

10 Generally, the previous approach of the Tribunal toward what constituted "special circumstances" was that such circumstances had to be exceptional, or out of the ordinary. Following the subject amendments to the ADT Act, a factor or circumstance which renders the awarding of costs "fair" under section 88(1A)need not necessarily be exceptional or out of the ordinary.

11 The decision as to whether or not costs should be awarded, does not simply involve a balancing exercise to determine what is fair. To reiterate, section 88 provides that each party is to bear its own costs unless there is some particular circumstance which makes it fair to order a party to pay the costs of another party and, if such circumstance exists, the Tribunal may then order costs but only if it considers in its discretion that it is appropriate to do so.”………..

18 The Applicant has drawn my attention to the decision of Judicial Member Molloy in Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71 in which the provisions of section 88(1A) were considered and a costs order made. That decision of course turns largely upon its own facts, and particularly upon the findings of the Tribunal that the respondent in that case had unreasonably persisted with its resistance to the applicant’s claim and that it had failed to accept reasonable settlement offers. Such circumstances do not exist in the present matter.

19 The Applicant has also sought to reply upon the decision of the Tribunal in Zeaiter Corporate Holdings Pty Ltd v Satchithanantham (No.2) [2009] NSWADT 70 as providing support for a costs order in its favour. The issue of costs in that matter was eventually decided on appeal in Satchithanantham v Zeaiter Holdings Pty Ltd[2009] NSWADTAP 53 and, after consideration of the provisions of section 88 (1A), the Appeal Panel ordered the appellant to pay the respondent’s costs because she had herself, and through her husband as legal representative, engaged in conduct specifically falling within the provisions of the section by causing delay through mainly irrelevant and repetitive cross examination, by failing to obey directions from the Tribunal, and by significantly delaying resolution of the dispute due to the filing of a separate and unmeritorious application seeking damages from the respondent on grounds connected to the respondent’s procedural conduct before the Tribunal. No such circumstances exist in the present proceedings and there is no evidence of conduct by the Respondent which would justify exercise of the discretion to order costs.

20 For the above reasons, the order I make is that each party is to pay its own costs of the proceedings.

17 This Tribunal has reviewed the decision of Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71 as it referred to a failure to accept reasonable settlement offers. A reading of the decision indicates that it turned very much on the facts of that particular case which were different to those of the present matter. The decision as to costs was based upon very particular facts including the contract in question in the case, and one party’s persistent conduct over the entire proceedings. The facts were very different from the present case.

18 In the submissions of the first respondent the case of Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175, a decision of Deputy President Handley, was referred to, where it was stated that the new section 88 confers a broad discretion on the Tribunal in terms of the relevant matters it may take into account in the exercise of its power to award costs if satisfied that it is fair to do so. “Nevertheless it must be borne in mind that the primary principle stated in section 88(1) is that each party to the proceedings before the Tribunal should bear that party’s own costs. It therefore remains the normal expectation that the parties in the Tribunal proceedings should bear their own costs.”

The Tribunal’s reasoning and findings

19 The decisions as to whether costs should be ordered in all of the abovementioned cases turned on the facts of each particular case as considered in the context of the Tribunal’s discretion to order costs pursuant to s88 of the ADT Act. This Tribunal takes the same approach – noting the primary principle in s88(1) of the Act that each party bear its own costs, and then assessing whether to exercise the Tribunal’s discretion to award costs by deciding whether there are circumstances in the case which make it fair to order that one party pay another party’s costs. This assessment is made in the context of the considerations set out in s88 of the ADT Act, which it is noted, provide a broad discretion. Applying these considerations to the current application for costs the Tribunal has made the following findings.

20 The Tribunal has considered the records on the Tribunal file and the parties’ submissions. These records indicate that at a mediation on 19 March 2008, the mediation was adjourned - to 21 April mediation or case conference on 7 May if no settlement.

21 On 7 May 2008 the Tribunal file notes that there were appearances of parties at a case conference and a timetable was set for exchange of documents (the applicant by 2 July 2008 and the respondent by 1 August 2008) and a further case conference was listed for 13 August 2008. Notes on the file for the conference of 7 May 2008 do appear to indicate that at the next case conference it was intended that matters such as the venue for hearing of the matter would be discussed. At the next case conference on 13 August 2008, there was attendance of the parties and the orders made on 7 May 2008 (setting the timetable) were vacated, with a further case conference listed for 4 November 2008. The notes on the file for the case conference of 13 August 2008 suggest settlement was contemplated. The file records that at further case conferences there were no appearances of the parties, until the case conference of 3 June 2009 when there were appearances of the parties. Further case conferences on 1 July 2008, when the case was dismissed as against the first respondent, and on 29 July 2008 when the case was dismissed as against the second respondent, involved no appearances of the parties.

22 The second respondent’s case is that when the matter did not settle at the mediation, it had been indicated that the case would proceed to hearing, necessitating instruction of counsel and the incurring of costs. Taking the case of the second respondent at its highest, the file would support a conclusion that from the mediation and/or from 7 May 2008 to 13 August 2008, there may have been anticipation that the hearing would proceed (although this is disputed by the first respondent as set out in the submission). As of 13 August 2008 the Tribunal file indicates that there appears to have been contemplation of settlement with the vacation of the orders for filing of documents. After 13 August 2009 case conferences were adjourned by consent with no appearance of the parties (with the exception of 3 June 2009) and the case was eventually settled and the applications dismissed.

23 The general rule as to costs is that each party should bear its own costs. The second respondent submits that the conduct of the first respondent was such that cost was incurred by the second respondent because of the first respondent’s conduct in causing delay/unnecessary adjournments by not achieving settlement at the mediation conference. Section 88 of the ADT Act provides that the Tribunal must be satisfied that it would be fair to order costs, as a departure from the general rule that each party bear its own costs. The first respondent case is that there were no unnecessary adjournments; adjournments were by consent for the purpose of settlement. The Tribunal accepts that finalisation of a training package would take some time and further there were a number of applicants to the settlement negotiations. An issue to be decided, having regard to s88 of the Act, is whether the first respondent unreasonably prolonged the time taken to complete the proceedings.

24 The Tribunal is required to consider whether the second respondent’s case that the first respondent failed to achieve a final settlement at mediation - so that a timetable was set for hearing and adjournments occurred –are circumstances that satisfy the Tribunal that it is fair for the first respondent to pay the second respondent’s costs after 18 March 2008.

25 The Tribunal is not so satisfied. On the facts of this particular case the Tribunal is not satisfied that the failure to achieve a final settlement at mediation in March 2008 was conduct by the first respondent which unnecessarily disadvantaged the second respondent in the proceedings; and was not satisfied such conduct amounted to conduct which unreasonably prolonged the time taken to complete the proceedings, so that it would be fair to order costs. The Tribunal accepts the submission that settlement negotiations with a number of applicants was a relevant factor – and in assessing whether it would be fair to order costs the Tribunal should consider the nature and complexity of the proceedings (s88(1A)(d)). There is no evidence that the first respondent conducted the proceedings vexatiously or deceptively, or that the first respondent failed to comply with legislative requirements or Tribunal directions. Indeed the second respondent does not assert that this occurred. Rather, it was the failure to achieve a final settlement at mediation, so that a timetable for hearing was set, which is the basis of the second respondent’s submission that there was unnecessary/unreasonable conduct, so that it would be fair to order costs. . The evidence indicates that the second respondent may have engaged in preparatory work by briefing counsel and preparing for a hearing and so incurred costs, however there is no evidence the second respondent was required to file any documents, nor was he required to attend case conferences (with the exception of 3 June 2009) or hearings, after 13 August 2008. The conduct of the proceedings after 13 August 2009 appears to have minimised accrual of costs.

26 The second respondent disputes the submission of the first respondent that the likelihood of settlement was in the contemplation of the parties despite the timetable for filing of documents (refer submissions of parties set out above). Even if the Tribunal accepts that the first respondent rejected settlement at mediation, is this a basis, after a consideration of the matters set out in s88 of the Act and the evidence overall in this matter, on which it would be fair to order that the first respondent pay the second respondent’s costs? Does the failure to achieve settlement at the first mediation, on the evidence overall in this case, amount to conduct that unnecessarily disadvantaged the second respondent or conduct which unreasonably prolonged the proceedings? The legislation refers to the words “unnecessarily” and “unreasonably”. The legislation requires the Tribunal to be satisfied that it would be fair to order costs. The first respondent’s case is that there were no unnecessary adjournments as the settlement process was complex. The case of the second respondent is that the setting of the timetable for hearing was, in essence, unnecessary. Relevantly, the proceedings were regularly adjourned for settlement purposes relatively early in the proceedings, with one mediation session and one case conference occurring before settlement was indicated with the timetable being vacated at the second case conference after mediation. The Tribunal considers that achieving settlement in this case involving a number of applicants, and involving issues such as a training package, would be a complex process. This is not a situation where the evidence indicates that the first respondent’s conduct was persistent in causing delay by failing to consider/promote the settlement which eventually transpired. The second respondent submissions accept that “it may well be the case” that the second respondent was not idle after mediation. The Tribunal is not persuaded that the adjournments for the purpose of settlement, in the context of the evidence in this case, were unnecessary or were such that it would be fair to exercise the Tribunal’s discretion to award costs. Whilst a timetable for hearing was set this was vacated at the next case conference, and considering the evidence overall in this case, the Tribunal was not satisfied that the conduct of first respondent amounted to conduct which unreasonably prolonged the proceedings. The Tribunal was not satisfied on the facts of the case overall, as discussed above, that the failure to achieve final settlement in March 2008, so that a timetable was set to which the second respondent had to respond, was conduct by the first respondent, in the light of the considerations of s88(1A) and the evidence overall in this matter, which would make it fair to order costs.

27 The Tribunal is not satisfied that the general rule in s88 (1) that each party bear its own costs should be departed from, as the Tribunal is not satisfied that it would be fair to do so, for reasons discussed above. The Order of the Tribunal is that each party is to pay its own costs in the proceedings.