CITATION: Wilde v University of Sydney (No 2) [2004] NSWADT 16 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Taragh Wilde RESPONDENT University of Sydney FILE NUMBER: 011060 HEARING DATES: On the papers SUBMISSIONS CLOSED: 10/09/2003 DATE OF DECISION: 01/28/2004 BEFORE: Rees N - Judicial Member; Clayton S - Member; Weule B - Member APPLICATION: Costs MATTER FOR DECISION: Costs Anti-Discrimination Act 1977 LEGISLATION CITED : Crimes Act 1900 Victorian Civil and Administrative Tribunal Act 1998 (Vic) Degman Pty Ltd v Wright (No 2) (1983) 2 NSWLR 354 CASES CITED: JA v State of NSW [2003] NSWADT 272 Tu v University of Sydney (No 2) [2002] NSWADTAP 25 Wilde v University of Sydney [2003] NSWADT 206 APPLICANT REPRESENTATION: In person RESPONDENT K Eastman, barrister ORDERS: 1. The respondent is granted leave to file further evidence and submissions in support of its application for costs for 28 August 2002.; 2. In the event that the respondent chooses to file further material in support of that application copies are to be served upon the applicant who has 14 days from the date of service to file any material in response.; 3. The respondent's application for costs is otherwise refused Introduction 1 On 2 September 2003 the Tribunal dismissed the applicant's complaint against the respondent of discrimination on transgender grounds (see Wilde v University of Sydney [2003] NSWADT 206). On the same date the Tribunal ordered that the respondent file and serve, within 28 days, written submissions in support of its foreshadowed application for costs. Those submissions were filed and served within the proscribed period. The respondent has also filed additional evidence in support of its costs application. 2 The applicant was ordered to file written submissions within 14 days of receiving the respondent's written submissions. No material has been filed by the applicant in compliance with that order. Consequently, we propose to determine this costs application on the basis of the material filed by the respondent. We are prepared to accept the additional evidence filed by the respondent because it relates to events which caused the hearing to be adjourned on 28 August 2002. 3 The applicant lodged an appeal against the decision by the Tribunal to dismiss her complaint. That appeal was dismissed by an Appeal Panel on 6 November 2003. The respondent's application 4 In her comprehensive written submission Ms Eastman, counsel for the respondent, referred to the Tribunal's statutory grant of power to order costs (s 114 Anti-Discrimination Act 1977 (the Act)), to Practice Note 12 which deals with costs, and to many of the cases in which the Tribunal has considered the circumstances in which it should depart from the statutory presumption found in s 114(1) of the Act that each party should pay his or her own costs. The respondent sought costs on an indemnity basis. 5 Ms Eastman advanced three reasons why a costs order should be made in favour of the respondent. They were: i. The applicant conducted the proceedings vexatiously. ii. The applicant was responsible for prolonging, unreasonably, the time taken to complete the proceedings. iii. The applicant's claim had no tenable basis in fact. 6 In support of the first reason - that the applicant conducted the proceedings vexatiously – Ms Eastman referred to the Tribunal's findings of fact concerning an incident which occurred within the grounds of the University of Sydney on 23 September 2000. That incident was at the core of the applicant's complaint for all of her other dealings with the respondent, which were alleged to constitute discrimination on transgender grounds, were connected in some way to the events of 23 September 2000. 7 In its statement of reasons the Tribunal advanced a number of reasons why it did not accept the applicant's account of the incident which occurred on 23 September 2000. These included the applicant's degree of intoxication at the time of the incident and the Tribunal's concerns about the applicant's truthfulness as a witness. 8 The arguments presented by Ms Eastman in support of the respondent's third reason for submitting that a costs order should be made in its favour – that the applicant's claim had no tenable basis in fact – appear to overlap with the submission that the applicant conducted the proceedings vexatiously. Ms Eastman referred to the Tribunal's observation that despite deficiencies in the applicant's Points of Claim it proposed to consider any arguable claims raised by the evidence and to the Tribunal's conclusion that there was no substance to any of the claims of alleged contraventions of the Act advanced by the applicant. 9 Ms Eastman advanced two separate arguments in support of her submission that costs should be awarded against the applicant because she was responsible for prolonging, unreasonably, the time taken to conduct the hearing in to her complaint. The first argument concerned the manner in which the applicant conducted her case generally and the second related to the events of a particular day, 28 August 2002, when the applicant was arrested following an incident at the Tribunal's premises and charged with a criminal offence. 10 The case was heard by the Tribunal over 8 hearing days extending from 18 December 2001 until 22 January 2003. The applicant presented her own case, whilst the respondent was represented by counsel with considerable experience in this jurisdiction. Fifteen people gave evidence; eight witnesses were called by the respondent and seven by the applicant. The applicant's case was not well presented and the Tribunal was obliged to extend a considerable amount of assistance to her. Many of the witnesses called by the applicant gave evidence which had little impact on the outcome of the case because that evidence was of marginal or no relevance to the issues which the Tribunal had to determine when conducting its inquiry into the applicant's complaint. 11 We believe that the applicant had an inflated view of her capacity to understand complex issues of law and to conduct litigation. The applicant received some legal assistance for her Points of Claim were drafted by a solicitor with the Redfern Legal Centre. It was not made clear to us, however, whether the applicant presented her own case as a matter of choice or because legal assistance was not available. Whatever the reason, the applicant would have benefited from competent legal representation and the time taken to conduct the case would have been dramatically reduced had she been represented by an experienced solicitor or barrister. The respondent's decision to call so many witnesses was a reasonable and prudent response to the numerous serious allegations made by the applicant against various employees of the University of Sydney. 12 The respondent filed an affidavit sworn by Mr Gerit (Eric) Wessels on 24 September 2003 in support of its submissions concerning the events of 28 August 2002. In view of the circumstances surrounding the events of this day we believe it appropriate to accept this additional evidence in support of the respondent's costs application. 13 Mr Wessels, who is the General Manager, Security Services at the University of Sydney, gave evidence at the hearing of the complaint. We found him to be a truthful witness. As the applicant has chosen not to file any materials in response to those filed by the respondent there seems to be no reason why we should not accept the contents of Mr Wessels' affidavit as being a true account of the relevant events concerning the applicant's arrest on 28 August 2002 and her subsequent court appearances. 14 The Tribunal knows little of what transpired on 28 August 2002. The evidence had concluded on 21 May 2002 and the case was listed for closing submissions by the parties on 28 August 2002. Whilst the applicant was making submissions the Tribunal was informed, privately, by the Deputy Registrar that "a security incident" had occurred and that the police had been called. When the Tribunal was informed by the Deputy Registrar that the police had arrived the proceedings were adjourned. Shortly afterwards the Tribunal was informed, privately, by the Registrar that the applicant had been arrested and taken away by the police. The Tribunal refused the request by Ms Eastman, conveyed to it by the Registrar, to re-convene the hearing that day to hear further submissions in the absence of the applicant. The matter was subsequently re-listed for submissions on another day, 22 January 2003. The applicant and counsel for the respondent were present and made their final submissions on that day, although the applicant did not attend until one hour after the listed commencement time. 15 In his affidavit Mr Wessels stated that he was informed by Mr Geoffrey Day, a witness in the proceedings and an employee of the University of Sydney, that the applicant had threatened him (Mr Day) with a syringe at the Tribunal's premises on 28 August 2002. Mr Wessels stated that he was informed that the applicant was originally charged with common assault in relation to this incident. According to Mr Wessels the applicant was later charged with threatening a witness contrary to s 326(1)(a) of the Crimes Act 1900. 16 Mr Wessels stated that he and Mr Day were informed by the police officer in charge of the case and a lawyer from the Office of the Director of Public Prosecutions that the charges against the applicant had been adjourned on a number of occasions and that a warrant was issued for the arrest of the applicant when she failed to appear at court on two successive mention dates. The warrant was subsequently withdrawn and the matter was listed for mention at the Local Court at the Downing Centre on 15 October 2003. 17 The respondent submitted that it should be awarded costs on an indemnity basis. The Tribunal was referred to a number of Supreme Court decisions in which the principles which govern the award of indemnity costs were discussed and where examples were given of the sort of conduct by an unsuccessful litigant which might warrant such a costs order. It was submitted that the applicant's conduct was similar to the litigant described in Degman Pty Ltd v Wright (No 2), who had indemnity costs awarded against him because he "conducted himself in proceedings by multiplying allegation upon allegation by prevaricating in the witness box…and thereby causing the other party to incur costs far beyond what reasonably could have been expected that they would incur with respect to the litigation of the genuine issues" ((1983) 2 NSWLR 354) Conclusions 18 Section 114 of the Act gives the Tribunal power to award costs. That section creates a presumption that each party to litigation before the Equal Opportunity Division of the Tribunal should pay their own legal costs unless there are circumstances in a particular case which justify a costs order being made in favour of one of the parties. 19 The circumstances in which a costs order should be made against an unsuccessful applicant were considered by an Appeal Panel in Tu v University of Sydney (No 2) [2002] NSWADTAP 25. After reviewing various authorities the Appeal Panel stated at [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. 20 The Appeal Panel also referred to the relevant provision in the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) governing costs in which the legislature has set out a list of circumstances which may be taken into account by that Tribunal when determining whether to depart from a presumption that each party should pay their own costs. Practice Note 12 has drawn heavily on that list of circumstances. In our opinion s 109 of the VCAT Act provides useful guidance to this Tribunal when exercising its costs power. Provisions from that section which are worthy of note in this case are s 109(3)(a)(iv) – "causing an adjournment"; s 109(3)(a)(vi) – "vexatiously conducting the proceeding" and s 109(3)(b) – "whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding". 21 We have concluded that we should deal separately with the events of 28 August 2002 and the rest of the proceedings. We do not believe it appropriate to deal finally with the respondent's application for the costs of that day until the charges laid against the applicant have been heard and determined. The applicant must have an opportunity, if she so chooses, to defend those charges and to challenge the version of events outlined in Mr Wessels' affidavit. If the applicant is convicted however, such a conviction would appear to stand as strong prima facie evidence of the fact that she caused the proceedings to be adjourned on 28 August 2002. In the event that the applicant is convicted of one or both offences the evidential burden will shift to her to satisfy the Tribunal that an order should not be made against her to pay the respondent's costs of the day for 28 August 2002. 22 Consequently, we propose to grant leave to the respondent to file further material in support of its application for costs for 28 August 2002. It will be necessary for the respondent to inform the Tribunal of the ultimate outcome of the charges against the applicant. As a matter of fairness copies of any further material filed must be served upon the applicant and she must be given a reasonable opportunity to file material in response. Our orders give effect to these observations. 23 We have concluded that the respondent's application for costs should be otherwise refused. This has not been an easy conclusion to reach for we acknowledge that the respondent must have been put to considerable expense in defending a complaint which was dismissed after an eight day hearing. As we have already noted, there was nothing unreasonable or excessive in the manner in which the respondent conducted its defence. 24 Had we reached the conclusion that the applicant had conducted the proceedings vexatiously, or that she had prolonged the proceedings unreasonably, we accept Ms Eastman's submission that a costs order should be made against the applicant. However, we are not satisfied of either matter on the evidence before us. 25 In a recent case, JA v State of New South Wales [2003] NSWADT 272 at [11] to [17], the Tribunal considered the meaning of the word "vexatious" in the context of an application for summary dismissal pursuant to s 111 of the Act. The Tribunal concluded that "vexatious" meant to harass, or to waste time or cause delay. There is no reason why the word should be given a different meaning in the context of a costs application. There is a clear element of volition, or intent, in a finding that a person acted vexatiously. We are not satisfied that we can attribute such volition, or intent, to the applicant. 26 Dr Britton, who was called to give evidence by the applicant, stated that she had treated the applicant for anxiety and depression. She also testified that, in her professional opinion, the applicant abused alcohol. We found on the basis of the applicant's own evidence that her behaviour and subsequent recollection of two key incidents – one on the University campus on 23 September 2000 and the other at Selle House on 6 November 2000 – were highly likely to have been affected by the significant amounts of alcohol which she had consumed shortly prior to the events in question. The applicant herself gave evidence that she had been prescribed medication by a psychiatrist that is commonly used in the treatment of bi-polar affective disorder. Whilst the applicant denied that she suffered from a psychiatric illness, we observed her to be often agitated, grandiose, irritable and unable to concentrate during the eight days of the hearing. It appears likely that the applicant convinced herself that her accounts of the various incidents said to constitute unlawful discrimination were accurate. The Tribunal found otherwise. 27 On the evidence before us we are unable to conclude that the applicant brought these proceedings with the intention of harassing the respondent, or with the intention of wasting time or causing delay. No doubt these proceedings had those effects, but it is another matter to impute that intention to the applicant. Whilst we hold suspicions that from time to time the applicant sought to prolong the hearing unreasonably, there is insufficient evidence to satisfy us that this was her intent. It appeared to us that the applicant strongly believed, mistakenly, that she was the victim of a conspiracy by a number of people employed by the respondent to do her harm because she is a transgender person. 28 In her submissions Ms Eastman drew attention to the fact that in our earlier decision we expressed concern about the applicant's truthfulness as a witness. In many instances such a finding may be expected to have a significant influence on the exercise of the Tribunal's discretionary power to order costs. Whilst we do not resile from that finding, we do not believe that it is inconsistent with the remarks made in the foregoing paragraphs which have lead us to conclude that a general costs order should not be made in this case. It was our observation that the applicant had great difficulty in distinguishing fact from fantasy. We have identified some matters which may have contributed to that difficulty. Orders 29 The Tribunal makes the following orders: 1. The respondent is granted leave to file further evidence and submissions in support of its application for costs for 28 August 2002. 2. In the event that the respondent chooses to file further material in support of that application copies are to be served upon the applicant who has 14 days from the date of service to file any material in response. 3. The respondent's application for costs is otherwise refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.