Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd

[2021] NSWCATAD 177

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 177

Hearing dates:

On the papers

Date of orders:

22 June 2021

Decision date:

22 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr R Dubler SC, Senior Member
Prof J Goodman-Delahunty, General Member

Decision:

In 2018/00213657 and in 2018/00213589:

1. Order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the hearing of the cost applications be dispensed with.

2.   No order as to costs such that each party to the proceedings is to pay the party’s own costs.

Catchwords:

COSTS – whether special circumstances exist under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW); s 50, s 60

Civil and Administrative Tribunal Rules 2014 (NSW)

Legal Profession Uniform Law Application Act 2014 (NSW)

Cases Cited:

Bashour v Australian and New Zealand Banking Group Limited [2017] FCA 163

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282

Kadsielski v Guca 1 Ptv Ltd [2018] NSWCATAP 223

Langley v Niland and Anor (1981) 2 NSWLR 104

MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183

SHH Pty Ltd v City of Parramatta Council (No 2) [2019] NSWCATAP 231

Stanley v QBE Management Services Pty Ltd [2012] FWA 10164

Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda (No 2) [2021] NSWCATAP 66

Yelda v Sydney Water Corporation; Sydney v Vitality Works Pty Ltd [2021] NSWCATAD 107

Texts Cited:

None

Category:

Costs

Parties:

In 2018/00213657:
Reem Yelda (Applicant)
Sydney Water Corporation (Respondent)

In 2018/00213589:
Reem Yelda (Applicant)
Vitality Works Australia Pty Ltd (Respondent)

Representation:

In 2018/00213657:
Counsel:
S Omeri (Applicant)

Solicitors:
Harmers Workplace Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

In 2018/00213589:
Counsel:
S Omeri (Applicant)
K Edwards (Respondent)

Solicitors:
Harmers Workplace Lawyers (Applicant)
FCB Workplace Law (Respondent)

File Number(s):

2018/00213657; 2018/00213589

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. On 30 April 2021, we published our decision in respect of damages: see Yelda v Sydney Water Corporation; Sydney v Vitality Works Pty Ltd [2021] NSWCATAD 107 (“damages decision”). The issue of damages was dealt with at a hearing held on 15-17 February 2021. The Tribunal found the applicant’s complaints against the respondents (hereinafter “Sydney Water” and “Vitality Works”, collectively referred to as the “respondents”) to be substantiated. The Tribunal ordered each of Sydney Water and Vitality Works to pay the applicant the sum of $100,000 by way of damages.

2. The Tribunal directed the applicant if it wished to apply for costs to file and serve submissions and evidence in support. Pursuant to such direction the applicant applied for her costs and Sydney Water also applied for its costs. This is our decision in respect of these applications.

Issues

3. The issues for consideration are as follow:

1. Whether pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) a hearing of the costs applications can be dispensed with?

2. Whether pursuant to s 60 of the NCAT Act special circumstances exist justifying an order for costs?

Should a hearing on costs be dispensed with?

4. Section 50 of the NCAT Act relevantly provides:

50 When hearings are required

1. A hearing is required for proceedings in the Tribunal except:

   …

   (c)   if the Tribunal makes an order under this section dispensing with a hearing, or

   …

2. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

3. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

   (a)   afforded the parties an opportunity to make submissions about the proposed order, and

   (b)   taken any such submissions into account.

4. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

…

5. The parties were given an opportunity to make submissions concerning whether costs could be determined on the papers. No party objected to that course of action.

6. We are satisfied that the issue of costs can be adequately determined in the absence of the parties by considering the parties’ written submissions. The parties would be put to unnecessary expense if required to argue the costs applications at a hearing. The order under s 50(2) of the NCAT Act has accordingly been made.

Do special circumstances exist justifying an order for costs?

Relevant principles

7. Section 60 of the NCAT Act states:

60 Costs

1. Each party to proceedings in the Tribunal is to pay the party's own costs.

2. The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

3. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

   (a)   whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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)   whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

   (f)   whether a party has refused or failed to comply with the duty imposed by section 36(3),

   (g)   any other matter that the Tribunal considers relevant.

4. If costs are to be awarded by the Tribunal, the Tribunal may—

   (a)   determine by whom and to what extent costs are to be paid, and

   (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.

5. In this section—

"costs" includes—

(a)   the costs of, or incidental to, proceedings in the Tribunal, and

(b)   the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

8. What amounts to special circumstances has been considered in a number of cases.

9. The Appeal Panel in Kadsielski v Guca 1 Ptv Ltd [2018] NSWCATAP 223 at [14] - [16] stated as follows:

1. First, special circumstances are circumstances that are out of the

ordinary, they do not have to be extraordinary or exceptional: see for

instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. It suffices if the circumstances are "out of the ordinary": lngate v Andrews [2018] NSWCATAP 170.

1. Secondly, each case depends upon its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015) NSWCATAP 152.

2. Thirdly, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94.

   10. The applicant relied upon a number of factors set out in section 60 in support of her application for costs. We address each of these contentions below.

Section 60(3)(b) – whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings

11. The applicant contended that both Sydney Water and Vitality Works have been responsible for prolonging unreasonably the time taken to complete the proceedings.

12. The applicant contended that the respondents have unreasonably prolonged the proceedings by pursuing unmeritorious appeals to the Appeal Panel. Further, Vitality Works has also unreasonably prolonged the time taken to complete the proceedings by pursuing an unmeritorious appeal to the Court of Appeal.

13. We are not satisfied that such appeals can be described as “unmeritorious” or “unreasonable”. In our view, the appeals were reasonably arguable.

14. The Appeal Panel itself, or the Court of Appeal in due course, are best placed to judge such matters and make appropriate costs orders as a consequence of any finding that the appeal proceedings are “unmeritorious”.

15. We note that the applicant did seek her costs before the Appeal Panel, which rejected the application: Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda (No 2) [2021] NSWCATAP 66 at [46] – [52].

16. The Appeal Panel held that all of the grounds of appeal had substance and were reasonably arguable, notwithstanding that they were ultimately unsuccessful. We are not satisfied that this conclusion was wrong nor, in our view, is it appropriate or open to us to reach a different conclusion for the purpose of awarding costs in favour of the applicant.

17. The applicant contended that the prosecution of an appeal is not “usual” and is capable of establishing a special circumstance because, as demonstrated by the most recent annual report of the Tribunal, only eight percent of applications finalised by the Administrative and Equal Opportunity Division of the Tribunal in 2019/2020 were appealed to the Appeal Panel.

18. We reject this submission. The mere fact that most decisions are not appealed against does not in our view make out a special circumstance warranting a costs order whenever an appeal is lodged. It clearly is not demonstrated without more that a party has been responsible for prolonging unreasonably the time taken to complete the proceedings merely because that party has pursued an appeal.

19. The applicant also contended that the respondents were responsible for prolonging unreasonably the proceedings because of their pursuit of a split hearing between liability and damages. The applicant suggested that the split hearing, which delayed matters, may have been pursued to pressure the applicant to abandon her claims. In support of this submission, the applicant tendered the transcript of the directions hearing at which the splitting of the issue of liability from that of damages was pursued.

20. The applicant contended that the transcript demonstrated that the applicant was initially reluctant to agree to a split hearing. It was accepted, however, that the applicant did eventually agree to a split hearing.

21. The transcript does not demonstrate, and we are not satisfied, that the respondents were pursuing a split hearing “strategy” in order to prolong the proceedings with the view to putting pressure on the applicant to abandon or compromise her claims.

22. The applicant contended that in any event a split hearing was unusual or out of the ordinary so as potentially to be a special circumstance within the meaning of s 60 of the NCAT Act. We reject this submission.

23. The simple fact that proceedings take a course different to the majority of proceedings does not make out a special circumstance justifying departure from the general rule as to costs provided for in s 60 of the NCAT Act. A split hearing may prolong matters, but this may also reduce costs and hearing times if liability is not established. This was the rationale for there being a split hearing in the proceedings before us.

24. In the result, we are not satisfied that pursuit of a split hearing “strategy” (as put by the applicant) demonstrates that the respondents have been responsible for prolonging unreasonably the time taken to complete the proceedings or a special circumstance warranting an award of costs against the respondents.

25. Finally, in respect of the Court of Appeal proceedings, we note that an application for a stay of the damages proceedings pending Vitality Works’ appeal to the Court of Appeal, was rejected by us and the Court of Appeal. In such circumstances, it cannot be demonstrated that the mere fact of appeal to the Court of Appeal has prolonged the proceedings before us.

Section 60(3)(c) – the relative strength of the claims made by each of the parties and whether a party has made a claim that has no tenable basis in fact or law

26. The applicant submitted that the majority, if not all, of the contentions of the respondents had no tenable basis in fact or law or were extremely weak. Various examples were provided.

27. The contention that a party has made a claim that has no tenable basis in fact or law is a high threshold to reach. A complaint will be lacking in substance when it can be demonstrated there exists no factual basis for the allegation, see Langley v Niland and Anor (1981) 2 NSWLR 104 at [107] and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].

28. The mere fact that the Tribunal decided against the respondents and in favour of the applicant does not itself necessarily indicate that the respondents’ arguments had no tenable basis in fact or law: MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183 at [23].

29. In our view, the applicant has not demonstrated that the contentions put forward by the respondents had no tenable basis in fact or law or were extremely weak. The nature of the contentions put forward by the respondents and relied upon by the applicant in particular, have not been shown to be out of the ordinary for proceedings of this type.

30. Further, we are not satisfied that there is anything about the relative strength of the applicant’s case and the respondents’ case that constitutes special circumstances warranting an award of costs.

Section 60(3)(d) – the nature and complexity of the proceedings

31. The applicant referred to the fact that the respondents called five witnesses (James, McMahon, Barron, Cash, Lin) each of whom was cross examined on behalf of the applicant. The applicant submitted that the number of witnesses called at each stage of the proceedings, demonstrates the complexity of the proceedings.

32. We note that the applicant was self-represented at the liability hearing and no application for costs was made at the conclusion of the liability hearing.

33. The applicant also relied upon the following matters as demonstrating the complexity of the proceedings:

1. The Tribunal’s remarks that the applicant would be assisted by legal representation at the damages hearing;

2. The need for the applicant to obtain medical evidence in support of her case on damages;

3. The multiple appeals to the Appeal Panel and the Court of Appeal and the seeking of a stay of the damages hearing;

4. The proceedings being before the Tribunal since September 2018.

34. The respondents contended that the number of witnesses called was not a sign of complexity. Further, the comment made by the Tribunal at a directions hearing in respect of the benefit of legal representation; the fact of the appeals; and the length of time that the proceedings have taken, do not demonstrate that the proceedings were complex.

35. In general, we agree with the respondents’ submissions. In our view, the damages hearing did not involve exceptionally complex issues of fact and law, particularly for proceedings under the Anti-Discrimination Act 1977 (NSW), so as to make out a “special circumstance” which would justify an award of costs within the meaning of s 60(3)(c) of the NCAT Act.

Section 60(3)(f) – whether a party has refused or failed to comply with the duty imposed by section 60(3)

36. The applicant referred to what it described as the failure of the respondents to disclose the email upon which Mr Cash relied until it was revealed mid-way through the cross-examination of Mr Cash at the damages hearing. This was said to amount to a failure to comply with the duty imposed by s 60(3)(f) of the NCAT Act - namely, to co-operate with the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

37. Sydney Water and Vitality Works placed before the Tribunal the summonses to produce issued by the applicant. Relevantly, the summonses did not seek within its scope, including as narrowed with the agreement of the applicant, the email exchange in question. In our view, in the absence of such email exchange being specifically called for or made the subject of a summons to produce, we cannot be satisfied that there has been any breach of the overriding duty.

Section 60(3)(g) – other matters

38. The applicant referred to the fact that the Tribunal assessed her losses at $318,280.08: at [337].

39. The Tribunal, however, was constrained by the statutory limit to award a total of only $100,000 from each respondent. The applicant contended the effect of this was that she was left with a figure less than her losses and in the absence of an award of costs she is liable to pay her legal fees, leaving her an even lesser sum in damages.

40. In our view, the above circumstance does not amount to a special circumstance warranting an award of costs. Relevantly, whenever an applicant is represented by lawyers this will result in costs which will reduce the amount available to the applicant from any award of damages.

41. Further, the fact that the applicant’s losses exceed the jurisdictional limit does not appear to us to be a basis for awarding costs. The applicant chose to pursue her claims in the Tribunal and with that choice came the jurisdictional limit on damages.

42. Secondly, the applicant referred to what she claimed was a breach of the Model Litigant Policy by Sydney Water.

43. The applicant contended that Sydney Water failed to comply with paragraphs (a), (b), (d), (e), (j) and (k) of clause 3.2 of the Policy. In particular, she asserted that Sydney Water failed to deal with the applicant’s claim promptly including by avoiding litigation by offering to settle for the jurisdictional limit and failing to keep costs to a minimum by not requiring the applicant to prove matters “which it must have known to be true”.

44. The applicant also referred to Sydney Water undertaking its appeal to the Appeal Panel. The applicant finally relied on what it said was the failure to provide a “genuine” apology.

45. We are not satisfied that Sydney Water did not comply with its obligations as a Model Litigant. Sydney Water was entitled to defend the proceedings both on the question of liability and damages. In our view, Sydney Water advanced in the proceedings reasonably arguable contentions which if successful would have resulted in damages being awarded at a level less than the jurisdictional limit.

46. Accordingly, we are not satisfied Sydney Water was in breach of the Model Litigant Policy by failing “promptly” to offer to settle for the jurisdictional limit. Similarly, we are not satisfied that Sydney Water required the applicant to prove matters “which it must have known to be true”.

47. Further, we refer to our previous remarks with respect to the submission that Sydney Water’s appeal to the Appeal Panel was unmeritorious.

48. In respect of the contention that Sydney Water failed to avoid litigation by settling the proceedings, we note that the applicant on 30 October 2019 and 6 November 2019 sought damages in excess of $4,000,000 and $9,000,000 respectively.

49. Sydney Water also referred to its offer to settle the matter on 1 April 2020 for the amount of $117,000 (“the Offer”). In light of this Offer, we are not satisfied that Sydney Water was in breach of the Model Litigant Policy by failing to avoid the litigation through settlement of the proceedings. We discuss this Offer by Sydney Water in further detail below.

38. In respect of the apology offered by Sydney Water on 12 April 2016, said to be disingenuous, we are not satisfied that this apology was issued in bad faith. We note that the applicant deliberately asked that the question of damages flowing from this apology be dealt with in other proceedings. In our view, it is not appropriate for the Tribunal to comment on these issues under those circumstances. Further, we note the applicant did not seek orders for an apology under the Anti-Discrimination Act.

39. Finally, in any event, we are not satisfied that the alleged inadequacy of the apology would warrant an order of costs or constitute a relevant “special circumstance”.

40. Thirdly, the applicant referred to what it described as “derisory offers of settlement”, being an offer of $67,000 in the case of Sydney Water and $30,000 in the case of Vitality Works. The applicant contended that these offers were not made in good faith and the failure to offer the statutory cap prolonged matters.

41. Sydney Water points out that this contention only refers to an offer made after the damages hearing on 19 March 2021. Sydney Water refers to its much earlier Offer of 1 April 2020 to settle the case in return for payment to the applicant of $117,000.

42. Sydney Water refers to the fact that between 1 April 2020 and 19 March 2021 Sydney Water incurred additional legal fees and disbursements. Accordingly, the reduction in amount offered to the applicant was, according to Sydney Water, an appropriate and measured reduction to recover part of its legal costs and fees it had incurred since its previous offer of settlement was rejected.

43. Vitality Works submitted that its offer of $30,000 was made in good faith.

44. We are not satisfied that the offers of settlement referred to by the applicant were made without good faith. We are also not satisfied that such offers could be described as “derisory”. Both respondents put forward a number of contentions at the damages hearing which in our view were reasonably arguable and which, if successful, would have reduced the damages awarded significantly.

45. Accordingly, we are not satisfied that the offers of settlement referred to by the applicant amount to a “special circumstance” justifying an order for costs.

The effect of the litigation on the applicant

58. The applicant referred to the effect on her of the proceedings both at the liability and at the damages stage of such proceedings being “extremely emotionally taxing” for the applicant. This is not unusual, particularly for proceedings under the Anti-Discrimination Act in the case of complainants. It could not be said to amount to “a special circumstance”. We note the applicant was self-represented at the liability hearing and, in our view, conducted such hearing competently and professionally.

Sydney Water’s Offer of 1 April 2020

59. On 1 October 2019 the Tribunal handed down its decision on liability. The respondents appealed that decision.

60. On 1 April 2020, and before the appeal was heard, Sydney Water made the without prejudice Offer as to costs to the applicant. Relevantly, as part of this Offer, Sydney Water offered to pay the applicant $117,000 as an ex-gratia payment.

61. The full terms of the Offer were as follows:

1. You resign from your employment effective immediately;

2. In addition to any accrued but untaken leave entitlements ordinarily payable on termination, Sydney Water pays you $117,000 as an ex-gratia payment (less deductions required by law);

3. In return for the payment, the Proceedings are dismissed with no order as to costs; and

4. In return for the payment, and following the dismissal of the Proceedings, the appeal is withdrawn with no order as to costs.

   62. The Offer stated as follows:

We note that acceptance of this offer would provide financial compensation above the maximum jurisdictional cap of $100,000 (as per s 108(2)(a) of the Anti-Discrimination Act 1977 (NSW)). Therefore, this offer represents a better financial outcome would otherwise be possible as a result of the Proceedings.

This offer does not impact on your ability to continue your proceedings against Vitality Works.

Legal costs

In the event that the offer is not accepted and:

•   the Appeal is successful, or

•   you do not obtain more than $117,000 in the substantive Proceedings against Sydney Water (as the limit is $100,000 against Sydney Water),

we put you on notice that our client will rely on this letter in the event legal

costs are sought -from the date of this offer -on an indemnity basis in

accordance with the principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333, under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Please feel free to seek legal advice in relation to this letter as it relates to

costs orders that may be made against you.

63. The Offer was open for seven days. The applicant did not accept the Offer.

64. Sydney Water points out that on 1 April 2020 the applicant had legal representation for the appeal. Sydney Water also referred to the applicant’s calculated losses as identified by her as at 3 April 2019 totalling $1,888,585.60.

65. The unreasonable failure to accept an offer of settlement may constitute “special circumstances” and supports the awarding of costs: see SHH Pty Ltd v City of Parramatta Council (No 2) [2019] NSWCATAP 231 at [40] – [41].

66. Sydney Water contended that the applicant’s refusal to accept the offer was unreasonable for the following reasons:

9.1   the Offer represented a significant amount beyond the maximum amount that could be awarded to the Applicant in the proceedings;

9.2   the damages decision resulted in the Applicant being awarded a total of $100,000 from the Respondent, $17,000 less than the Offer;

9.3   the Applicant was told of the jurisdictional limit and warned of the possible consequences;

9.4   the Offer was made when liability had already been determined (although it was under appeal), meaning that Respondent was not going to avoid the fact that a public finding of sexual harassment and sex discrimination had been made against it;

9.5   further, the Respondent did not need to incur legal fees when it was willing to pay more than the jurisdictional limit to resolve the matter, only for the Applicant to be in a worse position than if she had accepted the Offer; and

9.6   three days of the Tribunal's resources were not needed when an offer to pay above the jurisdictional limit was made.

67. Sydney Water also contended that it was well-established that a failure to accept an offer may justify the exercise of the court’s discretion to award costs on an indemnity basis: see Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190; Stanley v QBE Management Services Pty Ltd [2012] FWA 10164.

68. The applicant disputed that it was unreasonable of her to not accept the Offer and put forward a number of submissions as to why that was the case.

69. First, the applicant submitted that her refusal to accept the Offer was reasonable because the Offer required her to resign from her employment and such resignation as a condition of the settlement was not reasonable nor related to the relief in the proceedings. In her affidavit of 28 May 2021, Ms Yelda points out that at the time of the Offer she had won the liability stage of the proceedings. As a result, she believed that Sydney Water might apologise to her and try to mend their relationship so that she could return to work for it at some point in the future: paragraph 30(a).

70. The applicant submitted that it was perfectly reasonable for Ms Yelda to reject an offer that required her to resign in these circumstances and she cited in support the decision of Bashour v Australian and New Zealand Banking Group Limited [2017] FCA 163 at [151] - [153].

71. Further, the applicant contended that the effect of the requirement to resign was that she would be denied the opportunity to pursue further claims against Sydney Water for future lost earnings. In this regard, the applicant pointed to the fact that on 12 March 2020 she had filed a General Guarantee Protections claim in the Fair Work Commission against Sydney Water. The applicant understood there was no limit on the amount of damages the Fair Work Commission could award her. In her affidavit she stated she understood that if she resigned voluntarily, in accordance with the Offer, even if allowed to continue with the claim after accepting the Offer, she would have lost her right to claim future lost earnings. This was because the Fair Work Commission would or could say Sydney Water could not be responsible for lost future earnings after the applicant had decided to resign.

72. Sydney Water made a number of submissions in reply. It contended that the applicant had already stated that she did not want to return to work with Sydney Water and this was evidenced by:

1. the statement made by the applicant to Associate Professor Michael Robertson as recounted in his report of 29 July 2016;

2. the failure of the applicant to seek or review the determination in a work capacity assessment of January 2017 that the applicant seek work with an employer other than Sydney Water;

3. the applicant’s schedule of damages of 30 October 2019 and 6 November 2019 wherein the applicant was claiming exit from Sydney Water and “redundancy”;

4. the applicant’s Fair Work Commission application of 12 March 2020 wherein the applicant sought payment out of her redundancy entitlement and exit from Sydney Water.

73. Sydney Water submitted that the Offer did not prevent the applicant from pursuing the Fair Work Commission application, including seeking damages for future lost earnings.

74. Sydney Water contended that the reliance on Bashour is misconceived. In that case the principal relief being sought by the applicant was predicated on her continued employment with the Bank. Accordingly, it was considered reasonable to reject such an offer which was described as the “antithesis of what she sought in the proceeding”: at [151] – [152].

75. In general terms, we agree with the submissions of the applicant. The requirement that Ms Yelda resign from her employment at Sydney Water was not a requirement that could ever be achieved in the proceedings before the Tribunal. It obviously complicated matters and detracted from what otherwise would have been the more powerful submission that it is unreasonable to reject an offer on its own to pay above the jurisdictional limit of the Tribunal.

76. We acknowledge that the applicant had prior to the Offer considered and even desired an exit from Sydney Water on a redundancy basis with appropriate compensation. However, we accept her evidence in her affidavit that she had not given up hope of there being a resumption to the employment relationship provided Sydney Water took sufficient and adequate steps to apologise and mend the relationship. This was a reasonable position for the applicant to take. Accordingly, we are not satisfied it was unreasonable for the applicant to reject the Offer which required her to resign from her employment.

77. The principal flaw in the submissions of Sydney Water in respect of the Offer is that Sydney Water is attempting wrongly to equate a resignation with a redundancy or termination on medical grounds. In her affidavit, Ms Yelda goes through the history of offers made to Sydney Water to settle the proceedings prior to the Offer. She has been consistent in seeking a severance payment or “redundancy” in accordance with the relative enterprise agreement. Apart from such payment she has offered to settle the proceedings for amounts less than $117,000, including $100,000 offered on 5 December 2016 and $30,000 offered in or around August 2017.

78. Further, we accept that an unconditional resignation of employment, as opposed to a termination by Sydney Water, could potentially frustrate the claim for future lost earnings against Sydney Water being pursued by the applicant in the Fair Work Commission. It is not to the point to submit that the Offer did not prevent the claim being pursued in the Fair Work Commission. The point being made by the applicant is that a free and voluntary resignation of employment, unless agreed to act as a constructive dismissal or termination by the employer on medical grounds, could be used as a basis for denying the applicant’s claim for future lost earnings. This is because Sydney Water may, or at least would have been free to, submit that no such lost earnings should be awarded against Sydney Water when Sydney Water was ready, willing and able to continue to engage and employ Ms Yelda had she not decided to resign.

79. We accept that this was the applicant’s understanding of the possible consequence of accepting the Offer, and this was not “unreasonable”.

80. In our view, the above matters alone mean we are not satisfied that rejection of the Offer can be described as “unreasonable”. We, however, briefly deal with the other contentions put forward by the applicant for why she rejected the Offer.

81. Secondly, Ms Yelda says in her affidavit that at the time she did not completely understand how the statutory limit on the amount of damages that she could receive from the Tribunal applied. She believed that the Tribunal could award the statutory limit for each display of the Poster.

82. In reply, Sydney Water points out that in its Offer it clearly stated to Ms Yelda that the statutory limit was $100,000.

83. In this regard, we note it is common ground that the applicant was not legally represented at the time of the Offer, though she had engaged Mr Quinton Rares of Counsel to act for her in the appeal proceedings.

84. The Offer was only available for the short period of seven days. This would have made it difficult for Ms Yelda, particularly given her limited financial circumstances, to seek legal representation in respect of the Offer.

85. The onus of establishing that the refusal was unreasonable lies upon the respondent, Sydney Water. A combination of Ms Yelda being unrepresented at the time in respect of her claim for damages and the Offer only being open for seven days combined with Ms Yelda’s state of mind at the time lead us to not being satisfied that rejection of the Offer was “unreasonable”.

86. After the Offer had closed, the applicant was legally represented and the statutory limit of $100,000 was accepted by the applicant. It was open to the respondent at that point to repeat the Offer (and in particular without a requirement for resignation). At that point the contention that any refusal to accept $117,000 for damages was “unreasonable” would have been very much stronger.

87. Thirdly, the applicant contended that she reasonably rejected the Offer because the Offer would have denied the applicant the opportunity to be “publicly vindicated” by a decision of the Tribunal. In this regard Ms Yelda stated that she did not accept the Offer, apart from the reasons already expressed, because the Offer did not include any admission of responsibility for sexual harassment or sex discrimination or the impact of these contraventions on her.

88. Ms Yelda in her affidavit explained that having findings publicly available in her favour was very important to her. For example, the finding made by the Tribunal in her favour that the Poster badly affected her such that it was reasonable for her not to return to work at Sydney Water was a “really important finding for” Ms Yelda. She stated she felt so happy when she read this public decision that it made her cry with relief and happiness that her complaint had finally “been taken seriously”.

89. Sydney Water in reply submitted that the Offer came after the liability hearing and accordingly any “public vindication” would not have been denied to the applicant in light of this decision.

90. We reject Sydney Water’s submission which appears to be flawed for the following reasons. Any settlement prior to the appeal proceedings which would have settled the appeal proceedings as well as the proceedings before us would have enabled Sydney Water publicly to adopt the position that the proceedings “on appeal” had “settled” such that it did not necessarily accept as valid any of the critical findings of the Tribunal in the liability decision. This is particularly so given that the orders of the Tribunal sought by Sydney Water in the Offer was that the proceedings be “dismissed”.

91. The Offer did not come with any admission of unlawful conduct or an apology for such unlawful conduct and the hurt caused to the applicant.

92. Further, acceptance of the Offer would have denied to Ms Yelda public vindication of findings of relevance such as mentioned by her in her affidavit in respect of damages.

93. We note, as submitted by Sydney Water, that ultimately a public apology pursuant to the Anti-Discrimination Act was not sought. However, it still was open to Ms Yelda to seek an apology at that time and this would have been foreclosed by acceptance of the Offer.

94. Absent some public acknowledgement of unlawful conduct and/or an apology we are not satisfied that it was unreasonable to reject the Offer.

95. Lastly, the applicant contended that it was reasonable for her to reject the Offer because the amount of $117,000 offered was said to be “less deductions required by law”. The applicant pointed out that the amount or basis for any such deductions was not disclosed in the Offer. We are not persuaded that on its own this would have been a reasonable basis for rejecting the Offer. Any deductions truly “required by law” would be unavoidable. Any concern in this regard by the applicant should in the first instance have led to further discussions and engagement with Sydney Water rather than merely not responding to the Offer.

Conclusion

96. In the result, we are not satisfied that any party has demonstrated any relevant “special circumstance” that would justify a departure from the general principle provided for in s 60 of the NCAT Act that each party pay her or its own costs.

97. Accordingly, the applications for costs by the applicant and Sydney Water will be rejected.

Disposition

98. The orders of the Tribunal in 2018/00213657 and in 2018/00213589 are:

1. Order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the hearing of the cost applications be dispensed with.

2. No order as to costs such that each party to the proceedings is to pay the party’s own costs.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 June 2021