Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226

CITATION: Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226

DIVISION: Equal Opportunity Division

Applicant: Steven Dowsett PARTIES: Respondent: Fitness First Australia Pty Ltd

FILE NUMBER: 071141

HEARING DATES: on papers

SUBMISSIONS CLOSED: 11 August 2008

DATE OF DECISION: 14 August 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for costs

LEGISLATION CITED : Anti-Discrimination Act 1977 Interpretation Act 1987

PC v University of New South Wales (No 2) [2006] NSW ADT 54 CASES CITED: Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96 Crewdson v President Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 74

APPLICANT S Mitchell, solicitor REPRESENTATION: RESPONDENT P Flynn, solicitor

ORDERS: The respondent's application for costs is refused.

REASONS FOR DECISION Introduction 1 Mr Dowsett complained to the Anti-Discrimination Board that he had been discriminated against, harassed and victimised by his employer, Fitness First Australia Pty Ltd, on the ground of presumed homosexuality. The President of the Board declined his complaints as lacking in substance. Mr Dowsett required the President to refer the complaints to the Tribunal: Anti-Discrimination Act 1977 (AD Act), s 93A. In those circumstances the Tribunal needs to give its permission ("leave") before the complaint can proceed: AD Act, s 96. 2 A hearing to determine whether leave should be granted was set down for 26 February 2008 at 2 pm. Mr Dowsett's solicitor, Mr Mitchell, advised the Tribunal by facsimile dated 25 February 2008, that his client was withdrawing his application for leave. He asked that he be excused from attending the hearing scheduled for the following day. Mr Mitchell did not tell Fitness First that the application had been withdrawn and the Tribunal did not advise them that the hearing had been cancelled. Fitness First employees and their legal representative came to the Tribunal for the hearing at the appointed time. Fitness First now applies for costs against Mr Dowsett. I decided to determine the costs application on the basis of written submissions rather than putting the parties to the added expense of making submissions at an oral hearing: Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 76. Late submissions and legal representation 3 I made directions for the parties to file and serve submissions in relation to the costs application. On the day that Mr Dowsett was due to file his submissions he contacted Fitness First and the Tribunal to request an extension until the following day. Fitness First did not consent to the extension of time and now says that the Tribunal should not take the submissions into account because they were filed late. Despite the fact that the submission was filed one day late I have taken it into account. The reasons for doing so are that Mr Dowsett requested an extension before the time for filing the submission had expired, he provided a reason for needing the extension (his solicitor was busy in court that day) and the time requested was extremely short (one day). Fitness First also objected to Mr Dowsett being legally represented for the purpose of the costs application. An individual party, such as Mr Dowsett, requires the Tribunal's permission to be legally represented: AD Act, s 98(1)(b). Because Fitness First is a corporation, it is entitled to legal representation: AD Act, s 98(1)(a). Section 98(2) lists the factors the Tribunal is to take into consideration when determining whether to give a party permission to be legally represented. The most significant factor in this case is that Fitness First is entitled to legal representation. In all the circumstances, it would not be fair to deny Mr Dowsett the opportunity to be legally represented. Consequently, leave is granted. Jurisdiction 4 After the parties had filed their submissions it occurred to me that the Tribunal may not have jurisdiction to make a costs order. The provisions relating to costs where an application for leave has been made are unclear. I asked the parties to file further submissions on the jurisdiction point within 14 days. Submissions were received within that time from Mr Dowsett's solicitor but no submission was received from Fitness First. 5 The provision that gives the Tribunal power to order costs in relation to complaints referred by the President of the Anti-Discrimination Board is set out in s 110 of the AD Act: (1) Each party to an inquiry is to pay his or her own costs, except as provided by this section. (2) If 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 This provision applies to a "party to an inquiry". Prior to procedural amendments to the AD Act which commenced on 2 May 2005, the word "inquiry", was used consistently in the AD Act to refer to proceedings inquiring into complaints that had been referred to the Tribunal. The amending provisions substituted the word "proceedings" for "inquiry" in several provisions. The only two references to an "inquiry" in the current AD Act are in the costs provision (s 110) and in the heading to s 96, "Leave of Tribunal required for inquiry into certain matters." As the heading is not part of the AD Act ( Interpretation Act 1987, s 35(2)(b)) the costs provision is the only provision that mentions an inquiry. In those circumstances it can be assumed that parliament did not intend by the use of the word "inquiry" to refer to anything other than proceedings before the Tribunal after the President of the Anti-Discrimination Board had referred a complaint. 7 Under s 95 of the AD Act, the referral of a complaint to the Tribunal, whether that complaint has been declined by the President or not, is taken to be an application for an original decision under the Tribunal Act. However, in certain cases where a complaint has been declined by the President, that application may not be "the subject of proceedings before the Tribunal" without the leave of the Tribunal. Section 96 states that: Leave of Tribunal required for inquiry into certain matters (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91(2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. 8 Mr Dowsett withdrew his application for leave pursuant s 96 before the scheduled hearing date. I have interpreted s 110 as giving the Tribunal power to make a costs order against a party to proceedings. If the term "the subject of proceedings" in s 96(1) is interpreted narrowly then it is arguable that costs cannot be awarded until after leave has been granted. 9 When interpreting statutes, decision makers must determine what parliament intending to convey. Legislation is to be interpreted in accordance with its underlying purpose or object: Interpretation Act 1987, s 33. One of the purposes of the AD Act is to provide that the ordinary costs rule, where the loser pays the winner's costs, does not apply. Instead, the AD Act gives the Tribunal discretion to order costs if the circumstances justify such an order being made. Where legislation has been amended it is more likely that words will not have been used consistently: Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96. In this case, my view is that the word "inquiry" is not intended to mean anything other than "proceedings". Neither is the term "the subject of the proceedings" in s 96 intended to prevent a costs order being made before leave has been granted. If that were parliament's intention it would have been made clear. 10 Despite the fact that s 96 says that certain declined complaints cannot be the subject of proceedings before the Tribunal without leave, my view is that the costs provision in s 110 applies to proceedings where leave is sought. It follows that the Tribunal has jurisdiction to make a costs order against Mr Dowsett. Costs application 11 The two reasons Fitness First says the Tribunal should order Mr Dowsett to pay its costs are that the complaints were without merit and that Mr Dowsett did not conduct himself diligently and properly. In my view, the merits of the complaints cannot be taken into account in the circumstances of this case. While the President of the Board declined the complaints as lacking in substance, Mr Dowsett has a statutory entitlements to require the President to refer to complaints to the Tribunal: AD Act, s 93A. The Tribunal has not had an opportunity to assess the merits of the complaints as the application for leave was withdrawn before the hearing. 12 If a party has been responsible for unreasonably prolonging the time taken to complete the proceedings a costs order may be appropriate: See Practice Note 12, Costs. However, that is not what happened in this case. After deciding to withdraw his complaint, Mr Dowsett contacted the Tribunal on 25 February 2008. Registry staff told him that he should notify the Tribunal in writing. He contacted his lawyer, Mr Mitchell, who conveyed this information to the Tribunal on behalf of his client. Mr Dowsett relies on s 97(3) of the AD Act which states that: The Tribunal may remove all agree to the withdrawal of a complainant from proceedings if the Tribunal is satisfied that the complainant does not wish to proceed with a complaint 13 According to Fitness First, although the Tribunal had not granted Mr Dowsett leave to be legally represented, he had sought legal advice. Mr Dowsett's solicitor told the Tribunal that his client was withdrawing the complaint but failed to convey that decision to Fitness First. Fitness First submitted that this case is parallel to the circumstances in Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 74. With respect, the factual situation in that case was very different from the situation here. In Harding, the Tribunal said, at [54]: . . . The complainant has deliberately chosen not to attend the hearing, having been advised by the respondent that an application for a costs order would be made. Ms Harding had the opportunity to withdraw her complaint. Instead she put the respondent to considerable unnecessary expense by simply not appearing at the hearing. In addition, the President of the Board and this Tribunal declined her complaint as lacking in substance. In our view, while not necessarily amounting to an abuse of process, these circumstances justify an order for costs. 14 Another case relied on by Fitness First is also readily distinguishable. In Crewdson v President Anti-Discrimination Board of New South Wales [2000] NSWADT 60 the Tribunal expressed the view that if it dismisses a complaint that has been declined by the President, either summarily or after a hearing, costs should be ordered against the applicant unless there are truly exceptional circumstances. This is not a case where the Tribunal has dismissed the complaints. Indeed, the Tribunal has not had the opportunity to examine the merits of the complaints. Consequently, the view expressed in that case does not apply to Mr Dowsett's situation. 15 Costs orders are rarely made against unsuccessful applicants in anti-discrimination matters. The Appeal Panel observed in Tu v University of Sydney (No 2) [2002] NSWADT 22 at [42] 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. 16 Mr Dowsett has merely exercised his right to have his complaint referred to the Tribunal in circumstances where it has been declined by the President of the Board. Having obtained legal advice, he decided to withdraw his application. This is not a case where Mr Dowsett has persisted unreasonably in the face of information, knowledge and reason: Cf PC v University of New South Wales (No 2) [2006] NSW ADT 54. While it is unfortunate that neither Mr Dowsett nor his solicitor told Fitness First of the decision to withdraw the application, a costs order is not justified. Order The respondent's application for costs is dismissed.