Salama -v- Qantas Airways Limited (No. 2) [2003] NSWADT 5

CITATION: Salama -v- Qantas Airways Limited (No. 2) [2003] NSWADT 5 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Faisal Salama RESPONDENT Qantas Airways Limited FILE NUMBER: 011005 HEARING DATES: On the papers SUBMISSIONS CLOSED: 10/22/2002 DATE OF DECISION: 01/10/2003

BEFORE: Britton A - Judicial Member; Silva A - Member; Weule B - Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Salama v Qantas Airways Ltd [2002] NSWADT 119 Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60 CASES CITED: Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 Tu v University of Sydney (No.2) (EOD) [2002] NSWADT AP 25 Sivananthan v Commissioner of Police [2002] NSWADT 45 APPLICANT REPRESENTATION: J Stephenson, barrister RESPONDENT K Eastman, barrister ORDERS: 1. The application for costs is dismissed.

1 The respondent, Qantas Airways Ltd, applies for an order for costs following the decision of the Tribunal to dismiss the complaint of race discrimination made against it by the complainant, Mr Faisal Salama. Mr Salama opposes this application. In a decision handed down on 11 July 2002, Salama v Qantas Airways Ltd [2002] NSWADT 119 ("the decision"), Mr Salama's complaint was dismissed under s 111(1) of the Anti-Discrimination Act 1977 (NSW)("the Act") on the grounds that it lacked substance. 2 The background to the referral of the complaint to the Tribunal is set out briefly in our decision at [3] and [4]: By letter dated 6 April 1998, Mr Salama lodged a complaint with the President of the Anti-Discrimination Board ("the President"). He alleged that Qantas had discriminated against him, on the ground of race, throughout the period 1993 to October 1997, culminating in his compulsory retrenchment on 10 October 1997. This retrenchment was confirmed on 7 November 1997 following internal appeal. The Acting President decided not to exercise her discretion under s 88(4) of the Act to accept the "out of time" allegation i.e. that part of the allegation relating to the period 1993 to 6 October 1997. Accordingly, the complaint investigated by the President was confined to Qantas' decision to retrench Mr Salama. The President began to investigate this complaint and on 22 December 2000 decided to investigate the complaint no further on the ground that it lacked substance. At Mr Salama's request, the President referred the complaint to the Tribunal on 30 January 2001. Relevant Legislation 3 Section 88(1) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act") provides: 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. 4 In this case, as the complaint was dismissed under s 111(1) of the Act, the relevant costs provision is to be found in s 111(2): Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry. 5 Section 111(2) stands as an exception to the presumption against costs enshrined in s 114(1) of the Act. Section 114 provides: (1) Except as provided by section 111 (2) and sub-section (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. Submissions 6 It is not in issue that the Tribunal in this case has a discretion to order costs notwithstanding that the relevant provision is s 111(2). 7 The respondent argues that as the President had earlier declined the complaint and the Tribunal's decision in effect affirmed that decision, costs should be awarded in its favour. The respondent urges the Tribunal to adopt the approach advocated by Judicial Member Rees in Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60 at [56] : In my opinion it should be a rule of practice that the Tribunal will order costs against an unsuccessful complainant (unless truly exceptional circumstances exist) if the Tribunal dismisses a complaint under section 111(1) when the President has earlier declined the complaint pursuant to section 90(1) and the complaint has come before the Tribunal at the insistence of the complainant. 8 The respondent submits that there are no "truly exceptional circumstances," or any other circumstances on which Mr Salama can rely. It is also argued that weight should be given to Qantas' response to the complaint. It participated fully in the President's investigation and replied comprehensively to her inquiries; it provided an internal appeals mechanism; and it had been prepared to conciliate with Mr Salama after the matter was referred to the Tribunal. 9 The respondent argues that this is not a case where a costs order against Mr Salama would be viewed as denying him "access to justice" or having a "chilling effect" in the operation of the Act or defeating the objects of the Act to eliminate race discrimination: Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]. 10 It is argued for Mr Salama that the circumstances of this case do not justify an order for costs. While the President's decision to decline the complaint is relevant, it cannot be seen as determinative, and is merely one of the matters that must be considered. Mr Salama's complaint was dismissed on the basis that it lacked sufficient substance not, that it was frivolous or vexatious. It was also argued that the Tribunal ought take account of the fact that Mr Salama had limited resources and had only obtained legal representation on the eve of the hearing. 11 It is also submitted that, as noted by the Tribunal at [63], [64], [68] and ]73] of its decision, the circumstances of Mr Salama's employment were less than ideal and there was some evidence of poor treatment by his colleagues, including a supervisor. Decision 12 As observed by an Appeal Panel of the Tribunal in Tu v University of Sydney (No.2) (EOD) [2002] NSWADT AP 25 [at 39] "the proposition that the s 111(2) discretion should ordinarily be exercised in favour of the successful party has not been fully embraced in the equal opportunity jurisdiction." 13 Does however, those cases where the complaint is summarily dismissed, after being declined by the President, represent a special category where costs should in effect be automatically awarded? It is a powerful argument that where a complainant has effectively been put on notice that their complaint is unmeritorious, at least in the opinion of the President, that the Tribunal should be more inclined to order costs. 14 We accept the proposition advanced in Crewdson v President, Anti-Discrimination Board that in making an order under s 111(2) the fact that the President declined the complaint is highly relevant. However, we are unable to agree that the unsuccessful party must be able to establish "truly exceptional circumstances" to escape an order for costs. It is our view that the President's decision is highly relevant and should be given significant weight. Nevertheless, it is but one factor to take into account. 15 In this case, because of limited financial resources, Mr Salama did not have the benefit of legal representation until the eve of the hearing. He prepared documentation filed at the direction of the Tribunal, with assistance from his young son. It is apparent from that documentation that Mr Salama had little idea of the elements that had to be proved for his complaint to succeed. In our view, it is highly unlikely given Mr Salama's limited education, language difficulties (his first language is not English), and apparent difficulties grasping the legal complexities of his case, that he fully understood the full implications of the President's decision to decline his complaint. 16 There is nothing in the material before us to indicate that Mr Salama was not sincere in his belief that he had been the victim of race discrimination. (See for example Salama v Qantas Airways Ltd at [68]). 17 As noted by the Appeal Panel in Tu v University of Sydney (No.2) [42 and 43] in the equal opportunity jurisdiction: 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. Where a matter is found to be 'misconceived' or 'lacking in substance' there is greater caution in making an adverse costs order. A complaint may be 'misconceived' or 'lacking in substance' for technical legal reasons (e.g. jurisdictional limitations, absence of preconditions as to proof of key facts) which may be lost on the (typically unrepresented) complainant. In these circumstances respondents are often left to bear the cost, because of the greater public interests involved in upholding the making of complaints of violation of human rights: for a recent discussion of these matters see Sivananthan v Commissioner of Police [2002] NSWADT 45 at [16-28]. 18 This is not a case where a complainant arrogantly ignored the President's assessment and insisted that a hopeless and unmeritorious complaint proceed to an inquiry. Nor is it a case where a complainant put the respondent to unnecessary expense by failing to comply with Tribunal timetables and directions. 19 We do not take the view that complainants that press on after their complaint has been declined by the President should be immune from a costs order, on the sole ground that their complaint was not brought in bad faith. It remains one of the factors to be taken into account in the exercise of the Tribunal's discretion. Respondents are entitled to be protected from wasteful and time-consuming crusades. This is especially so in a case such as this where the respondent has fully cooperated in the President's investigation and subsequent Tribunal inquiry. 20 The argument advanced by the respondent is persuasive. However, having taken into account all the circumstances of this case we believe on balance this is not an appropriate case to make an order for costs. Order 21 The application for costs is dismissed.