CITATION: Playford v Toovey & anor [2005] NSWADT 63 DIVISION: Equal Opportunity Division APPLICANT Juli Playford PARTIES: FIRST RESPONDENT Ross Toovey SECOND RESPONDENT Pyomon Pty Limited FILE NUMBER: 041125 HEARING DATES: On the papers SUBMISSIONS CLOSED: 01/25/2005 DATE OF DECISION: 03/22/2005 BEFORE: Hennessy N - Magistrate (Deputy President); Bolt M - Non Judicial Member; Pan H - Non Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Anti-Discrimination Act 1977 Victorian Civil and Administrative Tribunal Act 1998 (Vic) CASES CITED: Tu v University of Sydney (No.2) [2002] NSWADTAP 25 Wilde v University of Sydney (No 2) [2004] NSWADT 16 APPLICANT No appearance REPRESENTATION: FIRST RESPONDENT In person SECOND RESPONDENT J Dawson, solicitor ORDERS: Tu v University of Sydney (No. 2) [2002] NSWADTAP 25; Wilde v University of Sydney (No 2) [2004] NSWADT 16 REASONS FOR DECISION Introduction 1 Ms Playford lodged a complaint of sexual harassment with the Anti-Discrimination Board against a fellow employee, Mr Ross Toovey and her employer Pyomon Pty Limited. The Board referred that complaint to the Tribunal on 13 September 2004. On the 21 December the Tribunal dismissed Ms Playford's application on the ground that she had failed to prosecute her claim. Ms Playford did not attend that hearing and the Pyomon Pty Limited applied for costs. The Tribunal directed that Ms Playford file any statements or other documents in response to the application for costs by 25 January 2005. No material has been received. In those circumstances we intend to proceed to determine the second respondent's application for costs on the papers. Conduct of Ms Playford 2 After the Tribunal received the complaint from the Anti-Discrimination Board a case conference was scheduled for 13 October 2004. On 7 October Ms Playford wrote to the Tribunal saying that "due to a serious and unexpected family matter" she would be unable to attend the conference and requested a new date. Registry staff inquired as to whether Ms Playford would like to participate in the case conference by phone but she said she was unable to do so. The case conference was then re-scheduled to 8 December 2004 at 1.30 pm and a message was left with Ms Playford of the new date and time. 3 On 29 November 2004 the solicitors for the second respondent wrote to the Tribunal and asked for confirmation that Ms Playford was planning to attend the case conference on 8 December given her non-attendance on the previous occasion. On the same day a staff member from the Registry telephoned Ms Playford and left a message confirming that the case conference was to be held on 8 December and inviting her to phone back. Ms Playford did not respond to that message. 4 On the day of the case conference a gentleman by the name of Michael Lewis rang to tell the Tribunal that Ms Playford had been hospitalised with pneumonia and was unable to attend the case conference at 1.30 pm. Registry staff told Mr Lewis that as the matter had been adjourned at Ms Playford's request on a previous occasion, she should send a medical certificate to the Tribunal "straight away" indicating when she would be available. 5 On 8 December 2004 the Tribunal sent a letter to Ms Playford's residential address by registered post advising her that unless she sent a copy of a medical certificate to the Tribunal by 17 December stating that she was in hospital with pneumonia on 8 December, the complaint would be listed to determine the second respondent's application for dismissal on 21 December. On 15 December 2004 a staff member from Registry left a message for Ms Playford on her home answering machine and asked her to telephone the registry. No response was received to that message. On 21 December 2004 Ms Playford did not appear and did not contact the Tribunal to explain her non-appearance. The Tribunal decided on the basis of Ms Playford's conduct, that she did not wish to proceed with her application and dismissed it under s 111(1) of the Anti-Discrimination Act 1977. Legal principles in relation to costs 6 The general rule is that each party to a complaint pays his or her own costs. However, under s 111(2) of the Anti-Discrimination Act 1977, "Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry." The most authoritative decision on the issue of when the Tribunal should award costs against an applicant in circumstances where the complaint has been dismissed under s 111 is Tu v University of Sydney (No. 2) [2002] NSWADTAP 25. The Appeal Panel noted at [42] that the sanction of a full costs order against a complainant tends to be reserved for cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith. The Panel went on to state at [43] that where a matter is found to be 'misconceived' or 'lacking in substance' there should be greater caution before making an adverse costs order. This decision was set aside by the Court of Appeal, but on other grounds. (Tu v University of Sydney 57 NSWLR 376.) 7 As the Tribunal noted in Wilde v University of Sydney (No 2) [2004] NSWADT 16 at [20], s 109 of Victorian Civil and Administrative Tribunal Act 1998 provides useful guidance to this Tribunal when exercising its costs power. Section 109 of that Act sets out a list of circumstances which may be taken into account by that Tribunal when determining whether to depart from the presumption that each party should pay their own costs. Practice Note No. 12 of this Tribunal, issued on 4 March 2003, sets out some examples of special circumstances that may justify a costs order. The examples have been adapted from s 109 of the Victorian Civil and Administrative Tribunal Act 1998. Factors relevant to the present case include: - Whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as - (i) failing to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act [The Administrative Decisions Tribunal Act 1997] the regulations, the rules or an enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; 8 In this case, Ms Playford made no bona fide attempt to prosecute her complaint. She gave excuses on two occasions but did not provide any evidence to support the second excuse when requested to do so by the Tribunal. On the last occasion she provided no excuse and simply did not attend. Her conduct leads us to believe that her reasons for non-attendance, when they were given, were not genuine. Ms Playford has flagrantly disregarded the Tribunal's directions and failed to provide any satisfactory excuse for doing so. Her conduct has led the second respondent to incur costs unnecessarily and Ms Playford should have to meet those costs. Order Ms Playford is to pay the costs of Pyomon Pty Limited within 42 days of the date of this decision. If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with the Legal Profession Act 1987. 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.