Appeal Panel CITATION: Graham -v- Director General, Department of Community Services (EOD) [2001] NSWADTAP 4 APPLICANT PARTIES: Karen Graham RESPONDENT Director General, Department of Community Services FILE NUMBER: 999018 HEARING DATES: 4 December 2000 SUBMISSIONS CLOSED: 12/04/2000 DATE OF DECISION: 02/28/2001 Dismissal of costs application DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Bell N - Judicial Member; McDonald O - Member CATCHWORDS: costs - adequacy of reasons - costs - relevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 125 of 1997 DATE OF DECISION UNDER APPEAL: 10/13/2000 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Graham v Director General, Department of Community Services (ex tempore, unreported) Squires v Qantas Airways Ltd (1985) EOC Herring v Benevolent Society of New South Wales (1992) EOC Bugden v State Rail Authority (1992) EOC CASES CITED: Duggan v Shore Inn Pty Ltd (1993) EOC House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541). APPLICANT REPRESENTATION: J Keys, barrister RESPONDENT E Brus, barrister ORDERS: 1. Appeal dismissed. 1 This is an appeal by a former complainant in a matter before the Equal Opportunity Division of the Tribunal. 2 On 26 August 1999 the Equal Opportunity Division of the Tribunal (the Tribunal) dismissed a costs application by the complainant: see Graham v Director General, Department of Community Services (ex tempore, unreported). Notice of appeal was given on 24 September 1999. The appeal was heard on 4 December 2000. 3 In the absence of leave to extend the appeal to the merits, an appeal may only be made in relation to a question of law: Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 113. 4 The only ground of appeal given in the notice of appeal was that 'the Tribunal erred at law in finding that there was no basis for awarding costs in favour of the complainant.' This objection was refined at the hearing with three grounds being relied upon: the reasons for decision were manifestly unreasonable, were not based on evidence and had regard to irrelevant considerations. 5 The case has a long history. The complainant was a district officer of the agency located at a centre in the suburbs of Sydney. She commenced employment with the respondent agency on 26 August 1996. Her primary complaints related to alleged conduct by two male supervisors, which she claimed amounted to unlawful sexual discrimination contravening the Anti-Discrimination Act 1977 (the ADA). 6 She placed those complaints before the Anti-Discrimination Board on 9 December 1996. She later made a further complaint - of victimisation arising from the making of the initial complaints. The complaints were not resolved by the Anti-Discrimination Board and the President referred the complaints to the Equal Opportunity Tribunal (now the Equal Opportunity Division of this Tribunal) in August 1997. 7 The matter then proceeded through various procedural stages. The procedural stages included a number of directions hearings, and an application by the agency seeking summary dismissal of the complaints. The matter finally was listed to be heard and, after some other earlier dates were vacated, was due to proceed over 3 days of the week commencing Monday 17 May 1999. 8 On Friday 14 May 1999 the complainant withdrew her complaint of unlawful discrimination against the respondent agency. Notice of withdrawal was given by solicitors' letter to the Registry, the material parts of which were: 'We refer to the hearing scheduled to commence 17 May next. We wish to advise that as a consequence of the tribunal's refusal to adjourn the hearing of our client's complaint, the complainant hereby notifies the tribunal that she is withdrawing her complaint effective 14 May 1999.' 9 The application for a further adjournment to which the letter refers had been made on 12 May 1999. It was opposed. The reason given for requesting the adjournment was that the complainant would be required to resign from her current employment located in Mildura in which she had only recently started, as she had no leave available to allow her to attend the hearing the next week. The Tribunal was not persuaded, referring in particular to the awareness that the complainant had when taking up the job that she was due soon to be required to attend the hearing of this case. The application was refused. 10 When the matter was called on for hearing on 17 May 1999, the Tribunal proceeded to dismiss the complaint. 11 On 25 June 1999 the Tribunal heard an application from the agency for costs. 12 The usual rule in Equal Opportunity Division matters is that no costs are awarded. 13 Two statutory provisions are relevant. The general rule in the Tribunal as to costs is found in s 88 of the Tribunal Act, in particular sub-s (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.' 14 In the instance of complaints made under the ADA there is a costs rule displacing s 88 of the Tribunal Act. Section 114 of the ADA provides: '(1) Except as provided by section 111(2) [power to award costs against complainant if complaint summarily dismissed] 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 such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.' 15 Costs orders are, as a consequence rarely made in ADA proceedings: see generally Squires v Qantas Airways Ltd (1985) EOC para 92-135; Herring v Benevolent Society of New South Wales (1992) EOC para 92-462(3); Bugden v State Rail Authority (1992) EOC para 92-434; Duggan v Shore Inn Pty Ltd (1993) EOC para 92-483. 16 The complainant was represented as she has been throughout by Ms Keys of counsel at the hearing of the agency's costs application. The Tribunal decided to grant the application in an amount, $3100, which met some of the costs incurred by the agency in defending the proceedings. It declined to make an order for substantially higher sums that had been sought by the agency. It explained its approach as follows: '[W]e are of the view that up until 19 April 1999, this case followed what is the normal procedures in this jurisdiction. After that date, there was a late withdrawal by the complainant of her complaint and we feel, having regard especially to that factor, in the circumstances, the respondent should be compensated to some extent for the costs incurred since then, especially those on 17 May and 25 June. The amount allowed in costs is $3100.' 17 Read in conjunction with the discussion recorded in the transcript, it is clear that the Tribunal considered that the ordinary rule that costs not be awarded in Equal Opportunity matters should apply to the proceedings while there were still being actively prosecuted by both parties. But the Tribunal felt that justice demanded that the respondent be given some relief from the costs incurred once the applicant brought the proceedings to end by withdrawing at a point where the respondent had made the preparations and incurred the costs necessary for the hearing. This is clearly a rational basis upon which to vary the usual rule and exercise the discretion given by s 114(2) of the ADA; and this ruling is not in issue in these proceedings. Complainant's Costs Application 18 By solicitors' letter dated 16 July 1999 the complainant notified her intent to make an application for costs. Her application was for $3000 in costs, virtually equal to the one that has already been made against the complainant (see further, comment of Ms Keys at appeal hearing transcript, 4 December 2000 at 20:37-38). 19 The complainant's application was for $250 costs in respect of a directions hearing on 17 October 1997 and $2750 in respect of a hearing held on 25 August 1998. 20 The application was dismissed. Short oral reasons were given. They were as follows: 'On 17 October 1997, the matter was listed by the tribunal at the call-over for directions. Reading the transcript, whilst the unavailability of a document to the complainant was considered, it does not appear to the tribunal anything out of the ordinary took place that would justify an order for costs. On 25 August 1998 there was a s 111 application listed for hearing. It was eventually withdrawn. The complainant was present and no application was made for costs nor was a request made to the tribunal for the costs to be reserved. If the complainant had felt then that costs should have been awarded, either of those applications should have been made. In our view, the application has no merit. Each application is refused.' 21 Read in the context of the earlier hearing on 25 June 1999 and taking account of the transcript on 26 August 1999, it is plain that the Tribunal was not persuaded that it should depart from the usual rule. Contentions on Appeal 22 The complainant's contention was that the directions hearing of 17 October 1998 was made necessary because the respondent had sought to prevent the complainant from having access to a consultant's confidential report to it relating to the events in issue. The submission was that this was an unnecessary extra event in the progress of the matter. The first ordinary directions hearing was held in November. The formal order made on 17 October 1998 makes no reference to the issue of the consultant's report, the directions being: '1.Parties given leave to apply to the Registrar for a date for Mediation. 2. Matter stood over to the callover of 21 November 1997 at 9.30 am.' 23 In her oral submissions to the Appeal Panel at hearing, Ms Keys, counsel for the complainant who has been involved in the matter throughout, said that the comments made by the presiding member (Her Honour Judge Murrell, Senior Judicial Member of the Equal Opportunity Tribunal) were that the parties were to confer about access to the document. Ms Keys said that the respondent did not want to disclose people that had been interviewed in this confidential report and it was agreed that the report would then be provided with names blacked out so as to protect the privacy of the people that had spoken to the consultant. 24 This, the Appeal Panel considers, is a situation that not infrequently arises in relation to workplace disputes. We have no difficulty with the Tribunal's decision not to treat this as a circumstance warranting departure from the ordinary rule as to costs. 25 Failed summary dismissal applications perhaps fall into a different situation. The making of an application for summary dismissal is one that could be argued to lie outside the ordinary course of preparing a matter for hearing. Where a respondent's summary dismissal application proves wholly to be without merit then that may provide a circumstance warranting an order for costs in favour of the complainant. 26 The main objection to the Tribunal's ruling in this regard concerned the assertion in its reasons that the complainant had failed to make a costs application on the day or to apply for costs to be reserved. The complainant submitted that there was simply no evidence before the Tribunal on the point. It was agreed that the transcript for that day could not be located, and there was no sound recording available. Further, the complainant submits that the matter of whether or not an application was made at the time is irrelevant, and should not have been taken into account. It was submitted that it was normal for parties to wait til the end of the matter before submitting costs applications; and that they should not be prejudiced by not having made a protective application at the time. 27 We agree with these submissions up to a point. There was no material in evidence before the Tribunal from which it could derive any conclusion as to whether or not there was an application for costs on the day. The presiding Member referred to his recollection as the basis for the assertion. He did not refer to any independent record, and the complainant was not given an opportunity to provide any contrary evidence. 28 We see force in the submission of counsel for the complainant that the failure to make a costs application or to reserve one's position at an interlocutory stage in proceedings in this Tribunal is not a factor to which weight ordinarily should attach in resolving 'special circumstances' costs applications made at the conclusion of proceedings. We do not wish to see a practice develop in the Tribunal of time being spent receiving protective costs applications because of a fear on the part of a party that a prejudice might arise if a costs application is brought forward at the conclusion of proceedings. Conclusions 29 But the reference to these matters in the reasons delivered at the conclusion of the hearing on 26 August 1999 are not, in our view, fatal. This was, as we have already noted, a situation where the Tribunal needed to be persuaded to vary the usual rule. While it had been so persuaded in respect of the agency's application, it was not in the case of the complainant's application. In the case of the agency's application it is plain that the Tribunal saw the conduct of the complainant in withdrawing so close to the hearing date as taking the case outside the norm. 30 In relation to the complainant's application for costs in respect of the summary dismissal proceedings, we note that the ADA in s 111 provides for respondents who succeed in an applications to apply for a costs order against the complainant. But the provision is silent in relation to unsuccessful summary dismissal applications. That in our view supports an interpretation that the legislature saw unsuccessful summary dismissal applications as ones to be dealt by reference to the general principle found in s 114. 31 This is not a case where the Tribunal needs to give detailed reasons in reply to the application. The applicant for a 'special circumstances' costs award carries the burden of making out the case. As we read the Tribunal's response it is simply saying that it was not persuaded by any of the matters put to it. The fact that it then went on to refer to a matter that was not clearly established one way or the other (whether there was any costs application on 25 August 1998) and a consideration which ideally ought not to have been taken into account (the making of protective costs applications) does not fundamentally affect its basic position. 32 We are satisfied viewing the history of the costs rulings in this matter that the Tribunal was proceeding on the basis that the ordinary rule should not be disturbed unless there was egregious conduct on the part of either of the parties justifying an exceptional order. We have no doubt that late withdrawal on a Friday when the case is due to commence on the Monday could be such a circumstance. 33 But the position is not so clear in the case of a dispute in relation to access to a document (the 17 October 1997 issue) or in relation to the bringing of a summary dismissal application which is later withdrawn (the 25 August 1998 issue). The discretion in relation to costs is a broad one; and a ruling on costs should not lightly be disturbed. 34 In regard to the question of the point at which an appellate body should intervene we acknowledge the assistance provided by Ms Keys in furnishing further written submissions on this point after the hearing, though we have not adopted them. 35 The shortcomings in the reasons expressed do not, in our view, give rise to an error of law vitiating the decision. In both instances the observations were beyond those required to dispose of the case. The essence of the decision was that the complainant had failed to persuade the Tribunal to depart from the usual rule. 36 Consequently we do not consider this to be a case demanding that we proceed down the path of setting aside the decision under review and making a decision in substitution (as to which see generally House v The King (1936) 55 CLR 499 at 504-5; see also Norbis v Norbis (1986) 161 CLR 513). We are not satisfied that the discretion miscarried in any material respect (see further Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541). Order 37 Appeal dismissed. 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. 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