Dunn v New Group Training Inc [2008] NSWADT 287

CITATION: Dunn v New Group Training Inc [2008] NSWADT 287

DIVISION: Equal Opportunity Division

APPLICANT Henry Dunn PARTIES: RESPONDENT New Group Training Inc

FILE NUMBER: 071129

HEARING DATES: 6 August 2008

SUBMISSIONS CLOSED: 6 August 2008

DATE OF DECISION: 22 October 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Costs after dismissal for want of prosecution

MATTER FOR DECISION: Costs

LEGISLATION CITED : Anti-Discrimination Act 1977

Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 CASES CITED: Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No2) NSWADT 252; Peck v Commissioner of Corrective Services (No 2) [2002] NSWADT 244 Anon v Anon (No 1) [1997] NSWEOT (18 July 1997)

APPLICANT No appearance REPRESENTATION: RESPONDENT L Hansen, solicitor

ORDERS: Mr Dunn is to pay the costs of New Group Training Inc incurred after 21 May 2008 to a maximum of $500, within 3 months of the date of this decision.

REASONS FOR DECISION Introduction 1 Henry Dunn was employed by New Group Training Inc as a labourer in the Tenant Employment Training program at Kempsey. That program is designed to provide indigenous participants with enhanced work skills and greater opportunities for employment. After an incident at work in about March 2007, Mr Dunn lodged a complaint of race and disability discrimination against New Group Training with the Anti-Discrimination Board. The Board referred the complaint to the Tribunal. Mr Dunn's solicitors filed and served some material in support of his claim on 3 April 2008. New Group Training filed and served material in reply on 30 April 2008. On 21 May Mr Dunn's solicitors ceased to act for him. On 16 July 2008, the Tribunal dismissed the complaint because Mr Dunn had stopped responding to correspondence and could not be contacted by phone. The formal order, made under section 107(1)(b) of the Anti-Discrimination Act 1977 (AD Act) was dismissal for "want of prosecution". New Group Training applied for costs against Mr Dunn. The Tribunal made directions for the parties to provide written submissions in relation to costs. New Group Training provided submissions on 29 July 2008. Mr Dunn did not provide any submissions and the Tribunal's correspondence sent to him by registered post on 4 June 2008 was returned unclaimed. Issue 2 The issue to be determined is whether the Tribunal should order Mr Dunn to pay some or all of New Group Training's legal costs. New Group Training's submission was that Mr Dunn's should pay their costs on an indemnity basis for two reasons. Firstly the complaint was frivolous, vexatious and lacking in good faith and therefore constitutes an abuse of process; secondly, Mr Dunn had not complied with the Tribunal's directions. Power to award costs 3 Section 110 of the AD Act provides that: (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. 4 This provision creates a presumption that each party will pay his or her own costs and provides the Tribunal with a discretion to award costs if there are circumstances justifying it doing so: Cleary Bros (Bombo) Pty Ltd -v- Cvetkovski (EOD) [2001] NSWADTAP 10 at [63]. Abuse of process? The first basis on which New Group Training submitted that costs should be awarded was that Mr Dunn's complaint amounted to an abuse of process. In Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 the Appeal Panel said 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, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith. 5 In that case, the Tribunal had dismissed Mr Tu's complaint when he and his lawyer withdrew from the proceedings. On appeal, the Appeal Panel characterised the Tribunal's decision as a dismissal for want of prosecution: Tu v University of Sydney [2002] NSWADTAP 19 at [58]. In both Tu and in this case, the summary dismissal decision was not made on the basis of an abuse of process, but on the basis of a failure to prosecute the complaint. In neither case did the Tribunal determine the merits of the complainant's case. In those circumstances, we are not satisfied that the complaint amounted to an abuse of process. Failure to comply with directions? 6 In Tu at [49], the Appeal Panel was satisfied that there was a substantial failure on Mr Tu's part to co-operate with directions and respond to them in a timely way. The Panel also found that this failure contributed significantly to the University's costs. Unlike Tu, in this case there has not been a "substantial failure" to comply with directions. The Tribunal made direction for his material to be filed and served by 2 April 2008. Mr Dunn's solicitors filed Points of Claim and unsigned witness statements from Erdlie Dunn and Henry Dunn on 3 April 2008. New Group Training says that they received that material on 9 April 2008 and filed and served their material in response on 30 April 2008. Mr Dunn's solicitors did not file any evidence in reply by 14 May as the Tribunal had directed. On 21 May 2008 Mr Dunn's solicitor advised that she was no longer acting. 7 New Group Training submitted that because the material filed by Mr Dunn did not "identify or provide any or any sufficient material relevant to prove any element of the applicant's claim" it did not comply with the Tribunal's directions. As we have said, the Tribunal did not determine the merits of Mr Dunn's complaint nor was it dismissed as being frivolous, vexatious or lacking in substance. We find that Mr Dunn's material was filed a day late and served a week after that, the two witness statements were unsigned and Mr Dunn failed to file and serve any material in reply. However, in our view, those circumstances do not provide a sufficient basis for a costs order. The delay was short and the failure of Mr Dunn to file material in reply did not cause the respondent to incur unnecessary costs: Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No2) NSWADT 252; Peck v Commissioner of Corrective Services (No 2) [2002] NSWADT 244. Failure to advise Tribunal that complaint had been abandoned 8 We do accept, however, that Mr Dunn abandoned his claim after his solicitors ceased to act for him and that he failed to advise either New Group Training or the Tribunal of that decision. That failure led to New Group Training incurring unnecessary expense after 21 May 2008. In our view, Mr Dunn should be ordered to pay New Group Training's costs after that date. As far as I am aware those costs comprise: writing to Mr Dunn on 26 May 2008; phone attendance at a case conference on 4 June 2008 and a personal attendance at the Tribunal when the complaint was dismissed on 16 July 2008. In the normal course costs are either agreed or, in the absence of agreement, assessed pursuant to the Legal Profession Act 1987. However, I am mindful that one of the objectives of the AD Act, the protection and promotion of human rights, would be thwarted if complainants were discouraged from bringing or pursuing claims because of the fear that they may ultimately be unable to pay the other side's costs if unsuccessful: Anon v Anon (No 1) [1997] NSWEOT (18 July 1997). In those circumstances I have decided to cap the costs at $500. Order Mr Dunn is to pay the costs of New Group Training Inc incurred after 21 May 2008 to a maximum of $500, within 3 months of the date of this decision.