CITATION: Rahman v NewSouth Global Ltd [2004] NSWADT 47 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Mohammad Tabibar Rahman RESPONDENT NewSouth Global Ltd FILE NUMBER: 031003 HEARING DATES: 8/10/2003, 7/11/2003 SUBMISSIONS CLOSED: 11/07/2003 DATE OF DECISION: 03/10/2004 BEFORE: Innes G - Judicial Member; McDonald O - Member; Quayle C - Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Borg v Commissioner, Department of Corrective Services and anor [2003] NSWADT 35 APPLICANT REPRESENTATION: In person RESPONDENT G Carolan, counsel ORDERS: The respondent's applicaiton for costs is dismissed. INTRODUCTION 1 This is a decision on an application by the Respondent in this matter for the award of costs in its favour, following the dismissal of the Applicants complaint by the Tribunal. 2 The Tribunal heard the evidence in the matter on 8 October 2003, and submissions from the parties on 7 November 2003. It delivered its ex tempore decision in the matter on the same day, and following that delivery the Respondent made its application for costs. The decision on costs was reserved. BACKGROUND 3 It is helpful to the determination of the decision on costs to appreciate the background to the matter. This is set out in the ex tempore decision referred to above as follows- "On 7 January 2002 Mr Mohammad Tabibar Rahman, a man of Bangladeshi national origin, lodged a complaint with the NSW Anti-Discrimination Board alleging that he had been discriminated against on the grounds of his race in breach of the NSW Anti-Discrimination Act (the Act). Mr Rahman alleged that the respondent discriminated against him in the marking of his paper in the Professional English Assessment Test (PEAT). This test, which is administered by the respondent on behalf of the NSW Department of Education, is a necessary requisite for a teacher qualified overseas to be able to teach in NSW. The Anti-Discrimination Board investigated Mr Rahman's complaint, and the President of the Board declined the complaint as lacking in substance pursuant to s 91 (1) of the Act. Mr Rahman exercised his right under s 94 of the Act to have the complaint referred to the Tribunal for determination, and the President of the Board did this on 8 January 2003. A directions conference in the matter took place on 17 February 2003. At this conference the solicitor representing the respondent, then referred to as the Institute Of Languages of the University of NSW, made an application that the respondent should be Newsouth Global LTD, a fully owned subsidiary of the university, which administers the PEAT test. Both parties agreed to this change, and that direction was made. Following an error in correspondence, where the name of the previous respondent was used, that direction was confirmed at a hearing before the full Tribunal on 9 May 2003. At the same hearing the Tribunal ruled on a summons to produce served by the applicant, and the full hearing date for the matter of 26 May 2003 was vacated. The matter was listed for hearing on 18 July 2003. The respondent produced all of the documents in their possession which were described in the amended summons, but admitted that, regrettably, Mr Rahman's exam paper and certain tape recordings of the oral section of the test have been destroyed. On 19 May 2003 the respondent requested that the hearing date of 18 July be vacated because their witnesses were unavailable. The hearing was rescheduled for 7 August 2003, but was adjourned due to the illness of the applicant. It was then rescheduled for 8 October 2003. Mr RAHMAN appealed a number of the preliminary decisions made by the Tribunal on 9 May 2003. In a decision delivered on 7 October 2003 all of the grounds of appeal were disallowed." 4 As indicated above, the evidence in this matter was heard on 8 October 2003, and submissions were made on 7 November 2003. Set out below are the findings of facts and law made on that day. 5 The Tribunal makes the following findings of fact, based on all of the evidence before it:- The Professional English Assessment Test (PEAT) is a test designed for the NSW Department Of Education and Training which - at the relevant time for these proceedings - had to be passed by teachers who gained qualifications overseas in order for them to become permanent teachers in NSW. This was not in dispute. The PEAT is an assessment for teachers whose background is not English, who have qualifications commensurate with Australian teaching qualifications. Its purpose is to test their proficiency in English. The test was designed specifically for the teaching context, and is correlated at a level 4 English professional competence level. Level 5 indicates native speakers, and level 3 indicates university degree entrance level. This was the evidence of Ms Lane who designed the test, confirmed to an extent by Dr Murray, the Director of the Respondent, and not disputed by the applicant. The TOEFL is a discrete point grammar test which tests individual points of grammar. It is a multiple choice test used for university entrance. The GRE is a similar type of test, and is an internationally standardised test used in Australia. This was the evidence of Ms Lane, not disputed by Mr Rahman. The PEAT is marked by up to nine different markers on the day of each test. These people are all English language teachers and experienced markers. Sections of the test, and questions within those sections, are marked by different markers to maintain consistency. Keeping inter-marker reliability is one of the important features of the PEAT administration. This was the evidence of Dr Murray and Ms Lane, and was not disputed by Mr Rahman. The general pass rate for the PEAT is between 20% and 35%. The pass rate for the Peat on 27 October 2001 was 11 %. However, the pass rate for the same test set on other days had been within the normal range. This is based on Ms Lane's evidence which was not disputed. Ms Lane administered the test for the Respondent. Mr Rahman's educational and work history is accepted, based on his evidence which was not disputed. It consists of long periods of study as well as work as a teacher and lecturer in Bangladesh, England, the USA and Australia. Mr Rahman, on his own evidence, was of the clear view that it was not necessary for him to sit the PEAT due to his qualifications and his long experience in English-speaking countries. He made this view known to the Department Of Education and Training both prior to and after sitting for the PEAT. Mr Rahman sat and failed the PEAT on 27 October 2001. This is not in dispute, although the reason for that failure is. As a result of that failure, which did not change upon being re-marked, Mr Rahman's casual teaching with the NSW Department Of Education And Training ended in July 2003. Upon arriving to complete the test on that day, Mr Rahman realised that he had forgotten to bring his passport. He presented his driver's licence as photo ID, and this was accepted by Ms Lane after being challenged by the junior invigilator. None of this was in dispute. Further, the Tribunal is satisfied, based on Ms Lane's evidence, that it is her normal practise and her instruction to the junior invigilator, that ID other than a passport must be checked by her. The Tribunal also accepts Mr Rahman's evidence that, upon being refused access by the junior invigilator, Mr Rahman requested to speak with her superior. However, the Tribunal is satisfied that - based on Ms Lane's practise - this would have happened whether or not Mr Rahman had requested it. The Tribunal accepts Ms Lane's evidence that it is her normal practise to mark off the name of a candidate when they arrive and their identity has been verified. Mr Rahman confirmed that he saw his name highlighted on the list of candidates, and this would accord with the evidence of Ms Lane's normal practise. The Tribunal is not persuaded by Mr Rahman's assertion that Ms Lane watched him more than other candidates during the written part of the test. It would have been difficult for Mr Rahman to monitor how much he was being watched in contrast to other candidates whilst he was completing test papers. Further, it would be a relatively easy conclusion for someone to reach under the stress of examination conditions, in an exam which they subsequently failed. The Tribunal formed the view that, in these circumstances, Ms Lane's denial of such activity was more credible. Mr Rahman's evidence that he was called "out of turn" from the cafeteria to carry out the spoken part of the PEAT is not disputed, as Ms Lane does not recall this event. However, the Tribunal accepts Ms Lane's evidence that some assessors are quicker than others, and that she often has to find candidates who may, as a result, gain the impression that they are being called out of turn. The Tribunal is satisfied that Mr Rahman was called when his assessor became available. The Tribunal is further satisfied that Ms Lane did not make an inappropriate comment about Mr Rahman to the assessor when she took him to the room. Mr Rahman was clear in his evidence that he did not understand what was said before he was introduced. He presumed that it was some form of colloquial insult or negative comment, but the Tribunal is not prepared to accept this conclusion. For the Tribunal to do so, on the balance of probabilities, Mr Rahman would - in the Tribunal's view - have to have at least some idea of what was said. The Tribunal is satisfied with the far more likely conclusion that Ms Lane simply made a neutral introductory comment, such as greeting the assessor, and then introduced Mr Rahman to the assessor. The Tribunal is satisfied, based on the written assessment of Mr Rahman's test papers provided when those papers were re-marked, that his performance in the PEAT was not strong. The assessment said in part- "The candidates fluency was relatively good, but he demonstrated a significant number of inappropriate choices in vocabulary, and the construction and choice of verb groups. The candidate did not demonstrate good discourse skills, ie. in turn taking, as he tended to lecture or monopolise the interaction. There were also some inappropriate responses which appeared to be learned formulae. His comprehensibility was affected "by significant first-language interference in intonation and stress." Mr Rahman asserts in his Points Of Claim that he was discriminated against on the grounds of his race, and victimised, by the respondent, in breach of ss 7 and 50 of the Act. It is necessary for the Tribunal to determine whether either of these sections has been breached, based on its findings of fact above. From Mr Rahman's Points Of Claim and evidence the only area in which he could have been so discriminated against by the respondent is in the administration by the respondent of the PEAT on 27 October 2001. There are four distinct incidents where Mr Rahman alleges less favourable treatment. The victimisation provisions of the Act could not apply here, as at the time the agent of the respondent, Ms Kathy Lane, was administering the 27 October PEAT she would not have known of the discrimination claim, and could have had no possible knowledge that it might be lodged. The first of these incidents is the "passport incident" and the Tribunal has set out above the version of the facts which it accepts. Based on this version of the facts Mr Rahman was treated no differently to any other candidate who did not present their passport. The second incident was his allegation that Ms Lane watched him more closely during the test. Again, the Tribunal has not accepted his description of this incident, so no less favourable treatment has occurred. The third incident related to the allegations of being called out of turn, and of how Mr Rahman was introduced. Again referring to the findings of fact above the Tribunal is not persuaded by Mr Rahman's assertions, and is satisfied that Ms Lane acted appropriately, and did not treat Mr Rahman less favourably in this regard. Finally, the Tribunal had regard to the comments of the assessors when Mr Rahman's PEAT paper was re-marked. It took this evidence into account and assessed it in conjunction with the Tribunal's own observations of Mr Rahman's presentation during the hearing. The Tribunal found no reason to disagree with the re-markers assessment, and no basis for concluding that this assessment was made on the grounds of Mr Rahman's race. Having noted the findings of fact and law above, it is also important to note that Mr Rahman's Points Of Claim provided no details of the three incidents alleged to have occurred during the PEAT on 27 October, and which he asserted were discriminatory. The Respondent was faced with the task of dealing with these allegations on the day of the hearing, having had no prior knowledge of them. DETERMINATION OF COSTS APPLICATIONS IN THE ADT 6 The legislative provision dealing with these issues is s 114 of the Anti-Discrimination Act 1977. The current state of the law is very clearly set out in the matter of Borg v Commissioner, Department Of Corrective Services and anor, (2003) NSWADT 35, and the relevant passage from that decision is set out below- "The Discretionary Costs' Rule 17 The general rule concerning costs, set out in s 114(1) of the ADA, provides that each party to an inquiry shall pay his or her own costs. However, s 114(2) empowers the Tribunal to make "such order as to costs ... as it thinks fit" where it "is of the opinion in a particular case that there are circumstances that justify it doing so". 18 As was observed by the Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 at paras 63-65, s 114 of the ADA does not prescribe a test to be applied. Rather the section creates a presumption in subsection (1) and a discretion in subsection (2). This discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made: (Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998.) 19 The Appeal Panel in Cleary at para 67 agreed with the Tribunal in Gallagher that in order to justify the making of an award of costs "there has to be something over and beyond a normal course of circumstances". The Panel then went on to say: "This should be understood to mean nothing other than that the presumption in section 114(1) 'must yield' when in a particular case there are circumstances justifying the making of a costs order (Penfold v Penfold (1980) 144 CLR 311 at page 315). To similar effect, there may be in a particular case 'circumstances which justify the departure from the general rule' (Australian Postal Commission v Dao & Anor (No 2) (1986) NSWLR 497 at 505)." 20 It follows from the above that previous cases concerning costs' applications under s 114(2) can only provide an indication of the kinds of circumstances that may attract a costs' order. They cannot provide a comprehensive guide as to the circumstances in which costs awards will necessarily be made. 21 An examination of previous cases where costs have been awarded in favour of an applicant suggests that as a general proposition a combination of circumstances is required in order to justify an award of costs. See, for example, Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No 2) NSWADT 252; Peck v Commissioner of Corrective Services (No 2) [2002] NSWADT 244; Gallagher v Y & Anor; X v Y & Anor [2002] NSWADT 7; Duggan v Shore Inn Pty Limited (1993) EOC 92-483; Willis v State Rail Authority of New South Wales (No 3) (1992) EOC 92-456; Holdaway v Qantas Airways Limited (1992) EOC 92-430; Squires v Qantas Airways Ltd(1985) EOC 92-135. See also the Appeal Panel's remarks in Cleary at paras 86-87. 22 In combination with other factors, the kinds of circumstances which have been regarded in previous cases as justifying the making of a costs' award include: - Whether the applicant's costs exceed or are disproportionate to the amount of damages awarded (Russell; Peck; V y Y & Anor; X v Y & Anor; Duggan; Willis; Holdaway; cf Nowland v TNT Skypak & Anor (1994) EOC 92-560). - The manner in which the parties have conducted the proceedings (Russell; Peck; V v Y & Anor; X v Y & Anor; Duggan; Holdaway(. - Whether the case raises any important public policy or public interest considerations (Willis; Holdaway). - Whether the proceedings determine or clarify an important question of law (Russell; Squires(. 23 The circumstances listed above appear to reflect an overall concern that the substantial rights and protections conferred by the ADA should not be undermined by the cost of vindicating them. See, for example, Gallagher; Duggan . The list is not intended, however, to be an exhaustive account of the kinds of circumstances which may be considered relevant to a costs' award." THE RESPONDENTS SUBMISSIONS 7 In making its application for costs the Respondent put the following submissions to the Tribunal: - That this matter falls within the boundary wherein costs may be awarded in that the Tribunal always has the capacity to consider and find in favour of such an application. - There is no mention in the applicant's points of claim of any of the grounds upon which the applicant subsequently gave evidence. His allegations before the President and in his points of claim related to having to sit the test bearing in mind his qualifications and experience, and the subsequent marking of the test. - The evidence in chief of the applicant related to three incidents which occurred at the time of the test. - This Tribunal, and the Appeal Panel, have sat on six different occasions. Numerous directions and interlocutory orders have been made. At no time were the issues upon which the complainant relied at hearing raised. - The Tribunal has made every effort to accommodate Mr Rahman as a litigant in person. Every opportunity and lattitude has been given to the applicant. The respondent also allowed significant lattitude for the complainant to present his evidence to the tribunal. - The applicant did have the advice of a lawyer although that lawyer did not appear in the Tribunal. THE APPLICANTS SUBMISSIONS 8 The applicant made very limited submissions on this issue. He asserted that he did not have the financial capacity to pay the respondents costs, and that to be forced to do so would be a disincentive for both himself and other similarly placed applicants to pursue such matters. CONCLUSIONS 9 From the relevant legislative provisions, and the passage set out in Borg above, it is clear that the usual practise in this Tribunal is for parties to bear their own costs. However, costs may be awarded in favour of a party where there are circumstances that justify the Tribunal in making such awards. The legislation sets out a presumption and a discretion, and this discretion must be exercised judicially. 10 The cases make it clear that there must be circumstances justifying a departure from the presumption and the making of a costs order. Previous cases can only provide an indication of these circumstances. However, a combination of circumstances must be found to justify an order for costs. 11 Borg's case sets out examples of the kinds of factors which may be considered. From that list, only the manner in which the parties have conducted the proceedings is relevant here. 12 The respondent's submissions set out the points which ought to be taken into account under such a circumstance. They included the fact that the applicant relied, at the hearing, on issues not set out in his points of claim, the number of times that the Tribunal sat to determine interlocutory issues, and the lenience shown by the Tribunal to the applicant in prosecuting his case without the assistance of a lawyer. 13 The Tribunal is satisfied that there are no other circumstances which it should take into account in assessing whether a costs order should be made in this matter. 14 Whilst the Tribunal agrees with the respondent that the applicant did not prosecute this matter expeditiously, and that he relied on matters not set out in his points of claim at the hearing, the Tribunal views these issues in the context of the applicant appearing in person. It is true that the respondent incurred a degree of inconvenience because the issues pleaded were not the issues led. However, it was not put to the trouble of calling extra witnesses, as the witnesses available and present on the day were able to more than adequately answer the points raised by the applicant in his evidence. 15 The Tribunal also agrees with the respondent that the number, and manner of raising, interlocutory issues by the applicant caused delay and inconvenience. However, whilst the Tribunal viewed them as excessive, it did not view them as justifying a financial penalty. 16 As set out in Borgs case, the law is clear that "the substantial rights and protections conferred by the ADA should not be undermined by the cost of vindicating them." In this context, whilst the Tribunal agrees with the respondent that Mr Rahman could have conducted his case in a more organised and less combative manner, such conduct did not warrant a financial penalty, particularly bearing in mind that he was unrepresented. 17 The respondent' s application for costs is 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.