Cargill Australia Limited v Higginson (No.2) (EOD) [2002] NSWADTAP 33

Appeal Panel

CITATION: Cargill Australia Limited v Higginson (No.2) (EOD) [2002] NSWADTAP 33 APPELLANT PARTIES: Cargill Australia Limited RESPONDENT William Higginson FILE NUMBER: 019048 HEARING DATES: 14/03/02 SUBMISSIONS CLOSED: 07/24/2002 DATE OF DECISION: 10/18/2002

Higginson v Cargill Australia Limited [2001] NSWADT 152 DECISION UNDER APPEAL: BEFORE: Hennessy N (Deputy President); Bartley R - Judicial Member; Alt M - Member CATCHWORDS: costs MATTER FOR DECISION: Costs FILE NUMBER UNDER APPEAL: 991095 DATE OF DECISION UNDER APPEAL: 09/13/2001 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Occupational Health and Safety Act 1993 Cargill Australia Limited v Higginson [2002] NSW ADTAP 20 CASES CITED: Sloey v State Transit [1999] NSWADT 40 Tu v University of Sydney (No.2) (EOD) [2002] NSWADTAP 25 APPELLANT REPRESENTATION: C Barton, solicitor RESPONDENT M Kumar, barrister ORDERS: No order as to costs

Introduction 1 On 7 June 2002, the Appeal Panel handed down a decision in Cargill Australia Limited v Higginson [2002] NSW ADTAP 20. The Appeal Panel dismissed the appeal and reserved on the question of the costs of the appeal, pending further submissions from the parties. These reasons deal with an application for costs by the successful respondent to the appeal, Mr Higginson. 2 The Tribunal made its decision at first instance, on 13 September 2001. The decision related to a complaint of discrimination on the ground of disability by Mr Higginson against his employer, Cargill Australia Ltd (Cargill). The Tribunal found the complaint substantiated and ordered Cargill to pay to Mr Higginson the sum of $36,469.08 by way of damages. 3 Although Mr Higginson's application for costs appears to encompass the costs of the proceedings at first instance, as well as the cost of the proceedings on appeal, we agree with Cargill that the only live issue is the costs of the appeal. Mr Higginson did not seek an order for costs of the proceedings at first instance and the Tribunal did not make any order as to costs. The Appeal Panel does not have power to award costs at first instance unless an appealable decision has been made in relation to costs. (See s 112 and s 113 of the Administrative Decisions Tribunal Act 1997 "the Tribunal Act".) Consequently these reasons are confined to a consideration of whether costs should be awarded to Mr Higginson in relation to the appeal. Submissions 4 Mr Higginson submitted that costs should be awarded pursuant to s 88 of the ADT Act s 114 of the Anti-Discrimination Act 1977 (ADA). Cargill submitted that s 114 creates a presumption, which the complainant must rebut, that parties must pay their own costs (Sloey v State Transit 1999 NSWADT 40 at [24].) Cargill added that the legislation does not prescribe the circumstances justifying a departure from the usual rule that each party bears his or her own costs. It follows, says Cargill, that something substantially more than success in the proceedings is needed to justify an award of costs. 5 The special circumstances nominated by Mr Higginson as justifying an award of costs, and Cargill's response, are set out below: · costs are a high proportion of the damages awarded. While Mr Higginson was awarded $36,469 in lost wages, his legal costs were $17,958. According to Cargill, costs will not take the major proportion of the damages awarded to Mr Higginson and the mere fact of being out of pocket is not sufficient, of itself, to justify an award of costs; · the length and complexity of the proceedings. The hearing lasted for two days and was strongly contested by the appellant. According to Cargill, the hearing at first instance took one and a half days while the appeal took half a day. There was no delay on the part of Cargill. This matter, like Sloey, was not particularly complex; · imbalance of resources between the parties. The appellant is part of an international group of companies and has substantial resources. In the year 2000, Cargill's revenue totalled US$49 billion. According to Cargill, while it does have substantial resources, it did not take unfair advantage of its resources in defending the claims. Cargill was entitled to fully defend the matter given the seriousness of the allegations; furthermore, says Cargill, an imbalance in resources, cannot, of itself, justify an award of costs; · vigour of the defence. The appellant strongly opposed the respondent's application and appealed the decision. According to Mr Higginson, the appellant used this case as a test case regarding the interpretation of s 54 and s 49 of the Anti-Discrimination Act 1977 and s 15 of the Occupational Health and Safety Act1993. The respondent should not have to bear the cost for such a test case. According to Cargill, there was no suggestion that their case was hopeless or had no substance and they were entitled to defend it vigorously. In addition there was no evidence supporting Mr Higginson's assertion that this matter was conducted as a test case. 6 Mr Higginson submitted that, in accordance with the view adopted in Sloey, the Tribunal should take into account the factors listed above which, in combination, justify an award of costs. The extent of costs payable, in accordance with an assessment provided to Mr Higginson, was $17,958. Cargill submitted that the circumstances of the case did not justify an award of costs against it. Decision and reasons 7 The parties to the appeal have failed to fully appreciate the distinction between an appeal against a costs order made by the Tribunal at first instance and an application for costs by a party to an appeal. This case falls into the latter category. In our view, different considerations apply in each case. 8 The only decision of the Appeal Panel which has addressed in any detail, the principles to be applied where an application is made for an order for costs in relation to the proceedings of the Appeal Panel, is Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25. In that case the Appeal Panel set out the following principles at [60] to [63]: 60 The Appeal Panel has the powers as to costs vested in the Tribunal. The powers in respect of costs conferred by the ADA and the Tribunal Act give them to the 'Tribunal'. The Appeal Panel is a constituent element of the Tribunal: see, for instance, definition of Appeal Panel in s 4(1) of the Tribunal Act. The Appeal Panel has no separate power to make orders for costs. 61 The access principles that may justify a liberal view in respect of non-use of the costs sanction at the primary level of the Tribunal should not be as readily applied in respect of failed appeals. 62 In equal opportunity appeals a distinction should be drawn between appeals against summary dismissal decisions and appeals in respect of matters that were fully heard and determined. Appellants against summary dismissal decisions who fail on appeal should normally be required to meet the respondent's costs of the appeal (at least to the extent of the services of one legal practitioner). There should be a fuller adoption of the rule in s 111(2) of the ADA than may be appropriate at first instance. 63 In cases where there has been a full contest and an appeal is lodged, the position will often be different, and often there may be no order as to costs in relation to the appeal, in keeping with the approach reflected in s 114 of the ADA. The appeal though unsuccessful may have, for example, raised an important point of law that was not free from doubt. 9 It is not clear from this decision, whether the Appeal Panel applied s 88 of the ADT Act in determining the question of costs of an appeal, or s 114 of the ADA. Section 88 of the ADT Act states that: (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. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 10 Section 114 of the ADA states that: (1) Except as provided by section 111 (2) 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 make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. 11 In our view, the correct provision to be applied in relation to an application for costs in Appeal Panel proceedings is s 88(1) of the ADT Act. That section sets out the general rule which is "subject to the rules of the Tribunal and any other Act or law." There are no rules, nor is there any Act or law which provides for a costs rule in relation to proceedings in the Appeal Panel from a decision heard in the Equal Opportunity Division of the Tribunal. Furthermore, s 88(1) is not qualified or displaced by s 88(3). That provision relates to "proceedings for an original decision." Proceedings on appeal from the Equal Opportunity Division to the Appeal Panel are not "proceedings for an original decision." They are proceedings for an appeal against an original decision. In those circumstances, the general rule set out in s 88(1) applies and the Appeal Panel must be satisfied that there are "special circumstances warranting an award of costs." 12 Given this conclusion, Mr Higginson's reliance on the principles enunciated in Sloey is of limited value given that that case involved an award of costs at first instance. Similarly, the Appeal Panel's decision in Cleary Bros (Bombo) Pty Limited v Cvetkovski [2001] NSWADTAP 10 is of marginal relevance because the costs issue was whether the Tribunal at first instance had erred in its decision to order the respondent to pay a portion of the complainant's costs. 13 Based on the reasoning in Tu, some of the relevant considerations to be taken into account in considering whether a costs order should be made against one or more parties to an appeal are: · the access principles that may justify a liberal view in respect of non-use of the costs sanction at the primary level of the Tribunal should not be as readily applied in respect of failed appeals; · appellants against summary dismissal decisions who fail on appeal should normally be required to meet the respondent's costs of the appeal (at least to the extent of the services of one legal practitioner); · in cases where there has been a full contest and an appeal is lodged, there may be no order as to costs in relation to the appeal, in keeping with the approach reflected in s 114 of the ADA. The appeal though unsuccessful may have, for example, raised an important point of law that was not free from doubt. 14 In this case, the matter was not dismissed summarily by the Tribunal and the appellant raised important questions of law which were not free from doubt. In those circumstances there are no special circumstances justifying an award of costs. Order No order as to costs.