Woodward v Coolan Nominees Pty Ltd

[2004] NSWADT 286

CITATION:	Woodward & anor v Coolan Nominees Pty Ltd [2004] NSWADT 286
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Pauline & Gavin Woodward RESPONDENT Coolan Nominees Pty Ltd
FILE NUMBER:	041017
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	08/24/2004
DATE OF DECISION:	12/13/2004
BEFORE:	Grotte E - Judicial Member; Hiffernan N - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Anon v Anon (No. 1) [1997] NSWEOT (18 July 1997) Borg v Commissioner, Department of Corrective Services (EOD) [2003] NSWADT 35 Cleary Bros (Bombo) Pty Ltd v Cvetskovski (EOD) [2001] NSWADTAP 10 Denmeade v Kempsey Shire Council & Ors (No. 3) [2004] NSWADT 54 Gallagher v NSW Police Service [1998] NSWEOT Graham v Director General, Department of Community services (EOD) [2001] NSWADTAP4 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Maylor (No.2) Mid North Coast Area Health Service [2001] NSWADT 118 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Tu v University of Sydney (No. 2) EOD [2002] NSWADTAP 25 Wilde v University of Sydney (No. 2) [2004] NSWADT 16
REPRESENTATION:	APPLICANTS In person RESPONDENT M Allan, solicitor
ORDERS:	Complaint is withdrawn dismissed. Respondent's application for costs is refused.

1 The Respondent, Coolan Nominees Pty Ltd, applies for an order for costs in these proceedings.

Background

2 On 28 January 2004 the President of the Anti-Discrimination Board referred a complaint pursuant to section 94(1) of the Anti-Discrimination Act 1977 (“ADA”) by Pauline and Gavin Woodward (“the Applicants”) against Coolan Nominees Pty Ltd (“the Respondent”). The complaint alleged discrimination on the grounds of carer’s responsibility.

3 In summary, the complaint was that the Applicants were employed as managers of a motel in Port Macquarie. They lived in residence at the motel. The Applicants claimed that at the interview for the position of manager they informed the owners, Don and Corale Oberin, that there was a possibility that their 17 years old son would live with them in Port Macquarie once his first year apprenticeship in Canberra concluded. They claimed that the owners did not indicate that this would not be suitable, because otherwise they would not have accepted the position.

4 The Applicants claimed that they mentioned to the Respondent, that is to the owners, the possibility of their son coming to stay with them as the conclusion of his apprenticeship drew near. They claimed that they were told by the owners that they would prefer it if he did not stay with the Applicants. The Applicants claimed that they tendered their resignation but the owners persuaded them to stay and agreed that the Applicants’ son could stay as long as his presence did not affect the Applicants’ work or the motel guests in any way.

5 The Applicants claimed that their son came to stay in mid-March and that they went on three weeks annual leave in April. Upon their return that claimed that they were told that their son’s presence could only be short term. They claimed that no problems regarding his behaviour were mentioned.

6 The Applicants claimed that they had been discriminated against in contravention of sections 49V, 49S and 49T of the ADA.

7 The Respondent denied that it had breached any provisions of the ADA. The Respondent stated that the Applicants had been offered employment as managers of the Mid Pacific Motel in Port Macquarie on 30 April 2001. Included in their employment package was a salary component based on occupancy of the manager’s residence by the Applicants only. The Respondent stated that the Applicants were informed that it was inappropriate that their son reside with them in the manager’s residence. The Respondent stated that they were prepared to allow the Applicants’ son to stay with them on a short term basis only as a temporary solution to his accommodation needs. The Respondent stated that it understood that there were alternative accommodation arrangements for the Applicants’ son in Coffs Harbour.

8 The Respondent stated that in December 2001 the Applicants informed it that their son would be residing in the family home in Coffs Harbour. The Respondent stated that in early March 2002 it was informed by the Applicants that they had collected their son and he would be returning with them to Port Macquarie. In April 2002 the Oberins relieved the Applicants as managers of the Motel while the Applicants took their annual leave. The Oberins stayed in the manager’s residence. The Applicants’ son moved out of the residence during this period. The Respondent stated that it was informed by the Applicants that their son would be looking for alternate accommodation.

9 The Respondent stated that on 27 May 2002 Mrs Oberin contacted Mrs Woodward to confirm that they would be relieving them in July 2002 when the Applicants were to take leave. The Respondent stated that Mrs Woodward asked that their son be permitted to stay in one of the motel units while they were on leave as he could not afford alternate accommodation. The Respondent stated that Mrs Oberin was unaware that the Applicants’ son had returned to reside at the motel and refused the Applicants’ request. On 27 May 2002 the Applicants resigned their position. The Respondent stated that on 23 June 2002 the Applicants released the Respondent from any claims in respect of any matter arising out of or in connection with their employment.

10 The Respondent stated that the complaint made by the Applicants is without merit and that the Applicants provided no substantive evidence that their son was either wholly or partially dependent on them or in need of care or support other than that he was unemployed for a short period of time and chose to live at home.

11 In response the Applicants stated that there had not been any discussion as to how many people could reside in the manager’s residence nor were any other restrictions discussed. They stated that the Oberins were informed in April 2001 as to the three options available to their son. They stated that would not have taken the position if his presence was likely to pose a problem. They stated that following their first resignation Mr Oberin indicated that as long as their son did not interfere with the guests he could stay.

12 The Applicants stated that the request that their son stay in the motel was not because he could not pay for alternate accommodation but was an attempt to negotiate the situation. The Applicants stated that Mrs Oberin was aware that their son had continued to reside with them.

13 The Applicants stated that their son was dependent on them in that he was unemployed, was about to have his licence suspended for three months and had been the victim of a car accident in which the car had been destroyed.

14 The Applicants stated that they signed the release because they understood that it was required for the payment of their entitlements.

Proceedings in the Tribunal

15 On 8 March 2004 a case conference was held with the parties. At the case conference a timetable was set for the proceedings. The Applicants were required to file with the Tribunal and serve on the Respondent Points of Claim together with a list of witnesses and summaries of the evidence to be given by those witnesses by 3 May 2004. The Respondent was required to file with the Tribunal and serve on the Applicants Points of Defence together with a list of witnesses and summaries of the evidence of those witnesses by 28 June 2004. The matter was also listed by consent for a mediation on 26 July 2004. The Application was listed for hearing in Port Macquarie in August 2004.

16 On 19 April 2004 the Applicants requested an extension of two weeks for compliance with the timetable. An extension of time was granted. The Applicants were given until 17 May 2004 to file the relevant documentation. An extension of two weeks was also granted to the Respondent.

17 On 21 June 2004 the Respondent’s solicitors wrote to the Tribunal enclosing a letter to the Applicants dated 11 June 2004 in which they requested the Points of Claim together with the witness list and summary of evidence as these had not been received in accordance with the Tribunal’s directions. The Applicants were put on notice that if these documents were not received by 18 June 2004 the Respondent would be making an application to dismiss the proceedings. A copy of this letter was forwarded to the Tribunal.

18 On 13 July 2004 the Tribunal received from the Respondent’s solicitors a request to vacate the mediation date and an application pursuant to section 111 of the ADA to dismiss the proceedings for want of prosecution and to award costs pursuant to section 111(2) and 114(2). The basis for the application was that the Applicant had not filed or served any material in accordance with the Directions and no reply was received to the Respondent’s solicitor’s letter to the Applicants dated 11 June 2004.

19 The Respondent’s solicitor submitted that Mr and Mrs Oberin who manage a motel in Echuca attended Port Macquarie to prepare their case in defence but were unable to do so without the benefit of the Applicants material. In order to attend Port Macquarie they had to make alternative staffing arrangements in Echuca. Additionally, it was submitted that one witness had relocated and with the passage of time there was the possibility that other witnesses might become unavailable or their recollection may diminish. It was submitted that the Applicants’ failure to comply with the Tribunal’s Directions resulted in prejudice to the Respondent.

20 On 20 July 2004 the Tribunal received a letter from the Applicants stating that they agreed that the mediation and hearing dates should be vacated as requested by the Respondent in its letter of 13 July 2004. The Applicants enclosed a letter to the Tribunal from them dated 4 June 2004 in which they requested that the matter be “dismissed”. They stated that the reasons were that their application for an extension of time was not granted until 3 May 2004 leaving them little time to prepare their case by 17 May 2004, that certain staff members had left the employ of the Respondent and others were reluctant to give evidence which would jeopardise their own employment. They stated that they therefore were not in a position to proceed with the complaint. The Applicants also requested that the Respondent’s application for costs be dismissed.

21 The Applicants’ letter dated 4 June 2004 was not received by the Tribunal until it was enclosed in their letter dated 20 July 2004.

22 Submissions were received from both parties on the question of costs.

Respondent’s Submissions

23 The Respondent’s solicitor submitted that the status of the matter is unclear. Although the proceedings have been marked “withdrawn” they are nevertheless sufficiently alive to be formally dismissed pursuant to section 111 (1) of the ADA and for a cost order to be made pursuant to section 111(2). If so, it was submitted that the proceedings should be dismissed and a cost order made because the claim is frivolous, vexatious, misconceived or lacking in substance.

24 It was submitted that if the complaint is not dismissed pursuant to section 111(1) the Tribunal should still make a costs order pursuant to section 114(2) of the ADA.

25 The Tribunal was referred to the Tribunal’s decision in Denmeade v Kempsey Shire Council & Ors (No. 3) [2004] NSWADT 54 in which the Tribunal considered the guiding principles relating to the discretion in respect of costs in section 114(2) of the ADA.

26 It was submitted that matters relevant to the discretion to dismiss a complaint are length of delay, explanation for delay, hardship to the plaintiff from dismissal of the action, prejudice to the defendant and the conduct of the defendant. It was submitted that more than four months elapsed between the date of Directions and the notification of the intention to withdraw. As stated in their letter of 4 June 2004 the Applicants had done nothing to advance the preparation of their case and there is a lack of sufficient explanation for the delay. It was submitted that the Applicants disregarded the Respondent’s solicitor’s letter dated 11 June 2004.

27 It was submitted that as the Applicants letter of 4 June 2004 was not received by it, it is open to the Tribunal to conclude that it was not sent until it was sent with the letter of 20 July 2004. In addition, no attempt was made by the Applicants to contact the Respondents or their solicitors to advise them of the intention to withdraw.

28 The Respondent has incurred legal costs as a direct consequence of the Applicants’ failure to advise the Respondents of their intention to withdraw.

29 It was submitted that the Applicants’ case has no tenable basis in law in that the refusal by the Respondents to allow the Applicants’ son to occupy a unit at the motel free of charge during the period of July 2002 had no causal connection with the carer’s responsibilities of the Applicants. Had the son been a family friend of the Applicants the Respondent’s response would have been the same.

30 It was submitted that the Applicants signed a deed of release releasing the Respondents from all future claims on 23 June 2002.

31 It was submitted that the Tribunal should order that the Applicants pay the costs of the Respondents in relation to the application to dismiss and in the proceedings more generally in that this case falls within the established authorities in which the Tribunal has exercised its discretion in making a costs order.

Applicants Submissions

32 The Applicants submitted that their complaint was not based on the fact that they could not have rent-free accommodation for their son but because they were not able to care for their son by having him reside with them as he was unemployed and without transport. He was unable to support himself.

33 The Applicants submitted that they received the Respondent’s solicitor’s letter dated 20 July 2004 but they did not ignore it as they believed that the Respondent had received their letter of 4 June 2004 and so in their view no reply was necessary.

34 The Applicants understand that they have withdrawn the application and therefore they resist the claim for costs against them.

35 The Applicants deny that there has been any lengthy delay as there were only three months between the case conference in March 2004 and their letter of withdrawal of 4 June 2004 particularly in the context of the length of time it has taken since the original complaint was made the Anti Discrimination Board (ADB). They submit that during that time they obtained legal advice and were looking into obtaining legal representation.

36 The Applicants deny that the complaint was misconceived or lacking in substance or that it has no tenable basis in law. They had received legal advice that they should continue with their case.

37 The Applicants submitted that they were informed by the ADB that the Deed of Release which they signed had no relevance to their rights in these circumstances.

Further Submissions on behalf of the Respondent

38 In response the Respondent’s solicitors submitted a statutory declaration from the Applicants’ son’s employer dated 17 September 2002 seeking to demonstrate that their son was working and not dependent on his parents, the Applicants.

Reasons for Decision

39 Section 111(1A) of the ADA provides that the Tribunal “may dismiss a complaint if satisfied that the person (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint.”

40 It is not clear whether the Tribunal ever received the Applicants’ letter dated 4 June 2004 in which they stated that they did not wish to proceed with the complaint. There is no record of its receipt in the Tribunal’s file. Nonetheless, the Tribunal did receive the Applicants’ letter dated 20 July 2004 enclosing their letter of 4 June 2004. The Tribunal is satisfied that the Applicant do not wish to proceed with their complaint for the reasons stated in that letter. Accordingly, the Tribunal dismisses the Applicants’ complaint pursuant to section 111(1A) of the ADA.

41 As the complaint in these proceedings is dismissed under section 111(1A), the relevant costs provision is found in section 111(2) of the ADA which provides that “where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry”.

42 Section 114(1) of the ADA provides that each party to an inquiry shall pay his or her own costs. However, section 114(2) grants the Tribunal a discretion to “make such orders as it thinks fit” where it “is of the opinion in a particular case that there are circumstances that justify it doing so”.

43 As stated by the Tribunal in Denmeade v Kempsey Shire Council & Ors (N0.3) [2004] NSWADT 54 “the principles underlying this provision are well-known and have been the subject of detailed consideration by the Equal Opportunity Division of the Tribunal: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10; Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP4; Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25; Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36; Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35; Sivananthan v Commissioner of Police, NSW Police Service [ 2002] NSWADT 45; Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 and Wilde v University of Sydney (No. 2) [ 2004] NSWADT 16.”

44 This Tribunal agrees with the observations made by the Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski at [63] – [64] that section 114 of the ADA does not prescribe a test to be applied but creates a presumption in subsection (1) and a discretion in subsection (2). The Appeal Panel in that matter cautioned that the discretion must be exercised judicially and no authority or rule can determine whether in any particular case an order should be made. The Appeal Panel in Cleary’s case followed the principles set out in Gallagher v NSW Police Service [1998] NSWEOT where it was stated that section 114(1) requires that in the normal course an award for costs should not be made and that “there has to be something over and beyond the normal course of circumstances to justify the making of an award for costs”.

45 The Tribunal also notes that in Anon v Anon (No. 1) [1997] NSWEOT (18 July 1997) the Tribunal stated that the human rights objective of equal opportunity tribunals “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 costs if unsuccessful on those claims”.

46 The Appeal Panel stated in Tu’s case that “ 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”.

47 In this case a dismissal occurred on the basis that the Applicants decided to withdraw their complaint. The legislation makes this option available to the Applicants at any stage of the proceedings. The Applicants provided cogent reasons, in particular that some witnesses were fearful of prejudicing their employment with the Respondent and the non-availability of other witnesses. There is no reason the Tribunal should not accept this explanation as genuine. The notification of the intention not to proceed with the complaint was made before Points of Claim and witness lists and summaries of evidence were filed by the Applicants and prior to the Respondent being required to file Points of Defence, list of witnesses and witness summaries. Accordingly, the Respondent had not been required to prepare its case fully for a hearing. It is unfortunate that the Respondent prepared an application to dismiss pursuant to section 111 of the ADA prior to being notified of the intention to withdraw. However, this does not in the Tribunal’s view constitute an abuse of process or justify the making of a costs order against the Applicants.

48 The delay caused by non-compliance with the Tribunal’s Directions was not inordinately long in that it was only a few months between the case conference in March 2004 and the notification of the intention to withdraw in July 2004. The Tribunal accepts that the Applicant’s who were unrepresented and preparing the case themselves were during that time talking to witnesses and obtaining legal advice.

49 Furthermore there is nothing before the Tribunal to indicate that the Applicants did not sincerely believe that they had been the victims of discrimination on the basis of their carer’s responsibilities.

50 The Tribunal is of the view that the circumstances of this case do not warrant an order for costs with respect to the section 111 application or more generally.

Order

51 Complaint is withdrawn dismissed. The Respondent’s application for costs is refused.