CITATION: Sloey v State Transit [1999] NSWADT 40 DIVISION: Equal Opportunity APPLICANT: Peter Eric Sloey RESPONDENT: State Transit Authority FILE NUMBER: 153 of 1996 HEARING DATES: 05/31/1999 SUBMISSIONS CLOSED: 05/31/1999 DATE OF DECISION: 14 July 1999 G Innes - Judicial Member BEFORE: R Cox - Member O McDonald - Member PRIMARY LEGISLATION: Anti-Discrimination Act 1977 APPLICATION: Disability Discrimination - Employment - MATTER FOR DECISION: Cost application Applicant: J Ryan of Writer Ryan Boesen with Hartcher Reid Solicitors REPRESENTATION: Respondent: D Davies of Sparke Helmore Solicitors ORDERS: 1. The Tribunal awards party-party costs in favour of the Complainant, and leaves the matter of assessment to be determined. 1: INTRODUCTION 1 On 2 December 1997 the Equal Opportunity Tribunal as it then was heard a complaint by Peter Sloey against the State Transit Authority under the relevant provisions of the Anti-Discrimination Act. 2 In its decision, sent by mail to the parties on 18 June 1998, the Tribunal found that the STA had discriminated against Mr Sloey on the ground of his disability in breach of the Act, and awarded him specific damages of $9, 882.29 and general damages of $6000. The decision did not address the question of costs. 3 On 25 June 1998 the complainant's solicitor contacted the Tribunal registry regarding the question of costs. He was told that this matter would be held over until after the result of any appeal. This was confirmed in a letter to the complainant's solicitor dated 17 July 1998. 4 The respondents appeal to the Supreme Court was dismissed by Barr J. on 12 March 1999, and the complainant then sought to have the question of costs considered by the Tribunal. The parties were directed to provide written submissions on the question which was set down for hearing on 31 May 1999. This decision is the result of that hearing. 2: RELEVANT LEGISLATION 5 The relevant section of the Anti-Discrimination Act is s 114. It provides- "(1) Except as provided by section 111 (2) and subsection (2) each party to an inquiry shall pay his or her own costs. (2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit." 6 Section 88 of the Administrative Decisions Tribunal Act is also relevant. It provides: "(1) 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 there are special circumstances warranting an award of costs. (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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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. " 7 Because of the initial phrase in s 88 of the Administrative Decisions Tribunal Act referring to other laws the Tribunal is of the view that the appropriate section under which costs applications should be determined remains as s 114 of the Anti-Discrimination Act. 3: JURISDICTION 8 The first issue for determination was raised by the respondent. It argued that the Tribunal was functus officio because the question of costs had not been raised by either party at the hearing on December 2 1997, and was not addressed in the Tribunal's original decision. It therefore argued that the Tribunal had no power to now consider the matter. 9 The complainant argued that although the issue had not been raised at the hearing the Tribunal's decision was deficient in not addressing the question. On becoming aware of this deficiency the complainant's representative had contacted the Tribunal, via the registry, and raised it for consideration. Because the decision was not handed down in person the complainant did not have the opportunity to raise it with the Tribunal directly at this time. The registry had advised the complainant's representative that the matter could not be considered until any appeal had been determined. 10 The Tribunal is persuaded by the arguments of the complainant on this issue. Because of the nature of s 114 of the Anti-Discrimination Act indicating that parties will normally bear there own costs the question is often not addressed in the Tribunal's decisions. It is left up to the parties to initiate any action in this area, which they may do at the time of the hearing, or after the decision is brought down and they become aware of the result. Because the decision was provided to the parties by post the complainant raised the matter with the registry at the earliest possible opportunity. 11 The registry, quite correctly in the Tribunal's view, indicated that this was a question more appropriately considered after any appeal process had taken place. This has now occurred, and the Tribunal is of the view that the determination of any question of costs falls within its proper function at this time. 4: SUBSTANTIVE ISSUES 12 Section 114 of the Anti-Discrimination Act provides that the usual practise in the Equal Opportunity Tribunal is that parties will be responsible for their own costs - ss (1). This means that there is a presumption, which the complainant in this case must rebut, that party's will bear their own costs. However, ss (2) provides that the Tribunal may award costs where there are "circumstances which justify it doing so". The test in s 88 of the Administrative Decisions Tribunal Act is a "special" circumstances test. There is a large body of law, particularly administrative law, dealing with the interpretation of "special" circumstances. In the Tribunal's view, though, the test here is not a "special" circumstances test, but rather an assessment of the circumstances of each case to determine whether there is something within those circumstances which would justify the awarding of costs. Accordingly, the Tribunal must examine the circumstances set out by the parties, and assess this justification. 4,1 Complexity Of The Matter 13 The complainant argued that the preparation of the matter was not simple, and that it involved much work in the obtaining of medical evidence and the preparation of statements. Further, the complainant argued that there were complex issues of law requiring determination, and referred both to the question of whether the medical standards for qualification of drivers should be applied without exception, and whether the s 54 exception could be applied. Finally, the complainant argued that the calculation of quantum had been complex The respondent disputed these arguments, asserting that a small number of witnesses were called, that the hearing only took one day, and that the medical reports obtained were neither long nor complex. Further, the questions of law were not complex and were regularly determined, and the matter of quantum had been dealt with quite quickly in correspondence after the hearing. The Tribunal shares the respondent's view on this issue. Many cases in this and similar jurisdictions run for longer, have many more witnesses and require much more preparation. Only two medical reports were obtained, and dealt with quite specific issues in fairly brief terms. The Tribunal agreed that these areas of law are quite regularly litigated, and not overly complex in the context of this jurisdiction. Finally, the question of quantum was resolved between the parties relatively simply. 4,2 Costs As A Proportion Of Damages 14 The complainant's next argument was that if each party bore their own costs the complainant would actually be financially disadvantaged, as their would only be; about $3000 from the award of damages available to the complainant. The complainant was awarded $9,882.29.in specific damages for loss of wages, and $6000 in general damages. Because of the award for wages he was required to repay $2749,04 to the Department of Social Security. 15 The respondent argued that the fact that the complainant was out of pocket was not in itself an appropriate justification for the awarding of costs, and relied on other Tribunal cases. It stated that the question of what amount of the Legal Aid grant had to be refunded could not be considered as that figure was not in evidence. The complainant agreed that this decision had not yet been made. 16 Whilst the Tribunal accepts that the complainant being out of pocket is not, on its own, a basis to justify the awarding of costs, it takes the view that in conjunction with other circumstances it could be regarded as a factor. The complainant in this matter was available to work at all times during which lost wages were awarded as damages, and it was only due to the respondent's decision that he did not work. Therefore the award of wages placed him in the position in which he would have been if the discrimination had not occurred. The costs, prior to assessment, total much more than the award for general damages, therefore the complainant is clearly out of pocket. To ignore this as a factor would mean that complainants are met with a significant disincentive to run matters such as this, because the costs will take a major proportion of their award. 17 This is a factor which the Tribunal considered. 4,3 Imbalance Of Resources Between The Parties 18 The complainant argued this as a factor, comparing Mr Sloey, who was in receipt of Social Security for some period of time, with the large budget available to a State Government authority. Whilst the Respondent argued that there was authority that this alone could not be a consideration in the awarding of costs, the Tribunal again takes the view that it can be considered as a factor. If no consideration is given to such matters then parties with lesser resources- usually but not always complainants - will find a further strong disincentive for running such matters. The Tribunal does not, however, suggest that on its own this issue would persuade the Tribunal to award costs. 4,4 Vigour Of The Defense 19 The respondent strongly opposed the complainant's position in this matter. It rejected an offer of settlement prior to the hearing, and refused to participate in mediation. Further, it appealed the Tribunal's decision. It clearly regarded its absolute compliance to the relevant medical standards as most important. The complainant argued that this, too, should be a factor. 20 The respondent opposed this argument, and again relied on decided cases which have held that this alone is not a basis for a costs award. However, they do not preclude its consideration as a factor, and the Tribunal is of the view that it should be taken into account in this matter. 4,5 Impact Of The Decision 21 The respondent argued that the way in which the Tribunal made its decision meant that reliance on the medical standards was not "overturned" and that the decision in favour of the complainant was a limited circumstance. The complainant rejected this argument, asserting that the impact of the decision was that the respondent could no longer rely upon the standards without exception, and that potentially many other drivers could benefit from the decision. This argument is supported by the respondent's appealing of the decision to the Supreme Court - if it was a "one-off" set of circumstances commercial reality may have suggested acceptance of the original Tribunal decision. 22 The Tribunal is again of the view that this should be a factor in its decision as to whether or not costs should be awarded. 5 Conclusions 23 The respondent, in its written submissions, made a number of references to costs being awarded in exceptional circumstances. However, the test is not as high as that. The Tribunal may award costs where it is of the view that they are justified in the circumstances. 24 The Tribunal agrees that there is a presumption that parties will pay their own costs, but this presumption is able to be rebutted by a party dependent on the factors to be taken into account. 25 None of the factors set out above are, on their own, justification for the awarding of costs. However, when taken in concert the Tribunal is of the view that they do provide a basis for the complainant to rebut the usual presumption. This is a matter in which the imbalance between the parties is quite marked, and in which the complainants assertions of discrimination, whilst determined to be correct both in the Tribunal and at appeal, were vigorously opposed. If costs are not awarded the complainant will be significantly financially disadvantaged. Finally, the case is one which may have quite a broad effect as it has determined that medical standards cannot be applied without exception, and without taking the particular circumstances of each case into account. For these reasons the Tribunal finds in favour of the complainant. 26 The Tribunal accepts the submission of both parties with regard to the assessment of these costs. It therefore awards party-party costs in favour of the complainant, and leaves the matter of their assessment to be determined. 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