Appeal Panel - Internal CITATION: Murtagh & Anor v Taylor (No 2) (EOD) [2005] NSWADTAP 39 FIRST APPELLANT Tina Murtagh PARTIES: SECOND APPELLANT Darren Fensom RESPONDENT Teresa Taylor FILE NUMBER: 049052 HEARING DATES: On the papers SUBMISSIONS CLOSED: 06/20/2005 DATE OF DECISION: 08/04/2005 Murtagh & Anor v Taylor [2004] NSWADT 271 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Britton A - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: costs MATTER FOR DECISION: Costs FILE NUMBER UNDER APPEAL: 041058 DATE OF DECISION UNDER APPEAL: 11/30/2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Cargill Australia Ltd v Higginson (No 2) (EOD) [2002] NSWADTAP 33 Citadin Pty Ltd (No 2) v Eddie Azzi (Australia) Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 CASES CITED: French v Sydney Turf Club Ltd (No 2) (EOD) [2003] NSWADTAP 54 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18 Sleiman v Kmart Australia Ltd [2003] NSWADT 21 Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25 FIRST APPELLANT No appearance SECOND APPELLANT REPRESENTATION: D Hillard, solicitor RESPONDENT G Casey, solicitor ORDERS: Application by Respondent for her costs of the appeal dismissed. REASONS FOR DECISION Introduction 1 In this matter, we heard two appeals, dismissing both of them in a judgment delivered on 2 May 2005 (Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18). In relation to one of them, which we called 'the principal appeal', the successful Respondent, Ms Teresa Taylor, has applied for a costs order. 2 In conformity with directions that we gave in our judgment, we are determining this question of costs 'on the papers', pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'). We have received written submissions from Mr G Casey, solicitor, on behalf of Ms Taylor, and from Mr D Hillard, solicitor, on behalf of Mr Darren Fensom, who is one of the Appellants. We have not received any submission on behalf of the other Appellant, Ms Tina Murtagh. 3 In our opinion, this application must be dismissed. Our reasons are as follows. Statutory provisions regarding costs 4 In previous decisions of the Tribunal, different views have been expressed regarding the statutory source of an Appeal Panel's power to award costs in an appeal brought against a decision of the Equal Opportunity Division in the exercise of the Tribunal's jurisdiction under the Anti-Discrimination Act 1977 ('the AD Act'). 5 According to a recent case, Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22, the power to award costs is that contained in the AD Act. At the time of this case, s 114 was the relevant provision. It is now s 110 of this Act, which does not include an exception that existed in s 114. Section 110 states as follows: (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. 6 In earlier cases (see e.g. Cargill Australia Ltd v Higginson (No 2) (EOD) [2002] NSWADTAP 33 at [9 – 11]; French v Sydney Turf Club Ltd (No 2) (EOD) [2003] NSWADTAP 54 at [18]), it was held instead that the source of power was s 88(1) of the Tribunal Act. This is in the following terms: (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. 7 According to some decisions (see e.g. Citadin Pty Ltd (No 2) v Eddie Azzi (Australia) Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31 at [21]; Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 at [26]), there is no meaningful difference between the tests laid down in these two provisions. But in Commissioner of Police, NSW Police v Mooney (No 3) at [54], the Appeal Panel, referring to the predecessor of s 110 of the ADA (i.e., s 114), took a different view, as follows: Section 114(2) of the AD Act permits the Tribunal to make an order for costs if it is "of the opinion in a particular case that there are circumstances that justify it doing so". This power must be exercised bearing in mind the presumption set out in s 114(1) that, except where s 114(2) applies, each party should pay his or her own costs. The power to make a costs order pursuant to s 114 of the AD Act is clearly broader than the power granted to the Tribunal by s 88 of the Tribunal Act which may be exercised only when the Tribunal "is satisfied that there are special circumstances warranting an award of costs". 8 In his submissions in support of Ms Taylor's application for costs, Mr Casey did not indicate expressly whether he relied on s 110 of the AD Act or s 88 of the Tribunal Act. However, the one case that he cited, Sleiman v Kmart Australia Ltd [2003] NSWADT 21, was decided under the predecessor to s 110. By contrast, Mr Hillard's submissions were based on an assumption that s 88 applied. 9 In this judgment, we will not seek to determine which of the two provisions governs an application, such as this one, for costs in an appeal brought against a decision of the Equal Opportunity Division under the AD Act. For reasons set out below, we do not need to do so. In such circumstances, it would be inappropriate for us to make such a determination, since the question has not been argued before us. The grounds of the application for costs 10 The main issue in the appeal was whether Ms Taylor, who was the owner of a residential property in Young, was vicariously liable to Ms Murtagh and Mr Fensom under the AD Act for unlawful acts of discrimination committed by a real estate agent whom she had retained to find tenants for the property. 11 In his submission on costs, Mr Casey argued that the case put by Ms Murtagh and Mr Fensom in their appeal was 'without merit' and indeed that the proceedings against Ms Taylor were 'frivolous, vexatious and lacking in good faith'. It was in this connection that Mr Casey cited Sleiman v Kmart Australia Ltd [2003] NSWADT 21. 12 Mr Casey pointed out also that Ms Murtagh and Mr Fensom had persisted with these proceedings even though they had settled an associated claim brought against the estate agent. In consequence, Ms Taylor incurred significant costs in responding to the appeal. These costs included instructing Mr Casey to appear on her behalf at a hearing of the appeal in Sydney. Mr Casey argued that if no order for costs was made in her favour, she would 'effectively' be 'the victim' even though our judgment in the appeal 'absolved her of any responsibility for the discriminatory acts' of her agent. Our conclusions 13 In our judgment, these submissions by Mr Casey provide no basis for an award of costs, irrespective of whether we apply the test of 'circumstances that justify' an award under s 110(2) of the AD Act or 'special circumstances warranting an award of costs' under s 88(1) of the Tribunal Act. 14 We will consider specifically whether the former test of 'circumstances that justify' was satisfied in this appeal. According to the Appeal Panel's observations, quoted above, in Commissioner of Police, NSW Police v Mooney (No 3), a finding that this test in s 110(2) of the AD Act was not satisfied would imply that the test of 'special circumstances' was also not satisfied. 15 In Sleiman v Kmart Australia Ltd, the decision on which Mr Casey relied, the Tribunal awarded costs against an unsuccessful complainant under s 114(2), the predecessor to s 110(2), on the explicit ground that the complaint was 'both vexatious and lacking in good faith' (see the judgment at [83]). It was on this basis that it found, at [84], that there were 'circumstances that justify the Tribunal departing from the presumptive position in s 114 that each party shall pay their own costs'. It relied on the statement by the Appeal Panel in Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25 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…'. 16 As Mr Hillard claimed in his submissions, however, it can be readily seen from reading our judgment in this appeal (Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18), that we did not consider the arguments raised by Ms Murtagh and Mr Fensom to be frivolous, vexatious or lacking in good faith. We did not think that the appeal was without merit, or that any abuse of process was involved. 17 Instead, the appeal raised difficult issues of interpretation of the provisions of the AD Act (s 53(1) and s 53(3)) which determine whether a principal such as Ms Taylor should be held vicariously liable for discriminatory conduct on the part of an agent. Because we rejected their arguments regarding s 53(1), we were bound to dismiss the appeal and uphold the Tribunal's decision at first instance. But we only reached this conclusion after a close examination of a number of authorities bearing upon the interpretation of this subsection. 18 Moreover, the appeal was successful in relation to s 53(3). We held that the Tribunal, in applying this provision to the facts of the case, appeared to have erred in law. 19 For these reasons, Mr Casey has not made good his submission that this appeal falls within the principles on which the costs order made under the AD Act in Sleiman v Kmart Australia Ltd was based. 20 The other matters that Mr Casey raised – viz, that Ms Murtagh and Mr Fensom had settled their claim against the estate agent, that our decision absolved Ms Taylor of any responsibility for the agent's discriminatory conduct and that she would suffer financially if no costs order were made – do not fall within any established category of 'circumstances that justify' a costs order under s 110(2). The fact that a successful party might suffer financially in this way is a natural outcome of the presumption in s 110(1) that each party should pay his or her own costs. 21 Mr Hillard also pointed out that the appeal instituted without success by Ms Murtagh and Mr Fensom was not the only appeal brought against the Tribunal's judgment. An earlier appeal, relating to the costs of the Tribunal proceedings, was in fact filed by Ms Taylor. We heard the two appeals together, dismissing both of them. It followed, in Mr Hillard's submission, that Ms Taylor would have incurred the costs of attending a hearing in Sydney even if no appeal had been brought against her. 22 We are not inclined to accept this argument. If the appeal by Ms Taylor had been the only appeal, we might well have held that, like the present application, it could be determined 'on the papers', without a hearing. 23 Our order, however, for the foregoing reasons, is that this application for costs must be dismissed. 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