CITATION: Gardiner v Aquasun Pty Ltd trading as Asher Coastwise Real Estate & anor (No 3) [2006] NSWADT 196 DIVISION: Equal Opportunity Division APPLICANT David Gardiner PARTIES: FIRST RESPONDENT Aquasun Pty Ltd trading as Asher Coastwise Real Estate SECOND RESPONDENT Chris Nounnis FILE NUMBER: 041124 HEARING DATES: On the papers SUBMISSIONS CLOSED: 05/30/2006 DATE OF DECISION: 06/29/2006 BEFORE: Britton A - Judicial Member; Schneeweiss J - Non Judicial Member ; Hayes E - Non Judicial Member CATCHWORDS: Costs - Disability Discrimination - Accommodation MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Workplace Injury Management and Workers Compensation Act 1998 Battenberg v The Union Club (No 3) [2005] NSWADT 126 Chi v Coles Supermarket Australia Pty Limited (EOD) [2006] NSWADTAP 3 DJL v The Central Authority (2000) 170 ALR 659 Hall v Sheiban (1985) ALR 503 Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 CASES CITED: Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) CLR 597 Paino v Hofbauer (1988) 13 NSWLR 193 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281 [2005] NSWADT 281 Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 Z v University of A & Ors (No 9) [2005] NSWADT 25 APPLICANT K Thompson, barrister REPRESENTATION: FIRST RESPONDENT No appearance SECOND RESPONDENT In person ORDERS: 1. That the application made by the Applicant to set aside the consent orders made on 23 February 2006 is dismissed; 2. That the application made by the Applicant to amend the consent orders made on 23 February 2006 is dismissed; 3. That the First Respondent pay the Applicant the sum of $7,5000 within 21 days of the date of these orders in addition to any amount it was ordered to pay the Applicant on 23 February 2006; 4. That the Second Respondent pay the Applicant the sum of $2,5000 within 21 days of the date of these orders; 5. That the First and Second Respondent are jointly and severally liable to pay the costs incurred by the Applicant after 23 February 2006, as agreed or assessed, payable on an indemnity basis; 6. These proceedings are dismissed. REASONS FOR DECISION 1 These proceedings concern a complaint made by David Gardiner to the President of the Anti-Discrimination Board alleging discrimination on the grounds of disability in the area of accommodation. That complaint concerned a residential property rented by Mr Gardiner through the First Respondent, Aquasun Pty Ltd, a real estate agent operating on the NSW Central Coast. Mr Chris Nounnis, the Second Respondent, was an employee of the First Respondent. 2 These proceedings were listed for hearing before the Tribunal on 23 February 2006. Mr David Burgin of Burgin Lawyers appeared for the First Respondent. Mr. Glen Taylor, company director, represented and was in attendance for the First Respondent. The Second Respondent appeared in person. Mr Gardiner was represented by Ms Karen Thompson of Counsel. 3 At the commencement of that hearing the parties were given a further opportunity to consider settlement and agreement was reached. On that day Terms of Settlement were handed up and, at the request of the parties, consent orders were entered. 4 A directions hearing was held on 27 March 2006. The Applicant was represented by Ms Thompson. No appearance was entered for either respondent. Ms Thompson advised the Tribunal that on her instructions in breach of Orders 1 and 2 the Applicant had not received payment from the First Respondent and, neither respondent had complied with it obligations to write to the Tenancy Default Control Pty Ltd (TICA) in terms as agreed (Orders 4, 5 and 6). 5 Following that hearing the Register wrote to all parties in the following terms: At the dismissal hearing listed for 27 March 2006 the Applicant contended that the First and Second Respondents had not complied with the terms of the consent orders made on 23 February 2006 and requested that the Tribunal make the following orders: 1. An order as against both respondents under s 111 of the Anti-Discrimination Act 1977 that each has failed to comply with the terms of the consent orders made on 23 February 2006. 2. An order that the respondents pay the applicant's costs of 27 March 2006 on an indemnity basis. At the hearing Ms Britton made the following directions: 1. The Respondents to make written submissions in respect of the Applicant's application, to be filed and served on or before 10 April 2006. 2. The Applicant to file and serve written submissions on or before 24 April 2006. 3. The matter to be determined 'on the papers' (s 76 of the Administrative Decisions Tribunal Act 1997) unless either party requests that the matter be listed for hearing. 6 Ms Britton has requested both parties to comment on whether it would be appropriate in this case for orders to be made under Section 108(7) of the Anti-Discrimination Act 1977 which provides: "If the Tribunal makes an order under Subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $40,000 by way of compensation for failure to comply with the order". Certificate issued by Registrar 7 On 19 April 2006 at the request of the Applicant the Registrar issued a certificate under section 82 of the Administrative Decisions Tribunal Act 1997 ("the Tribunal Act") in accordance with the terms of Order 1 2 and 3 made on 23 February 2006. On the same day the Registrar also issued a certificate under section 114 of the Anti-Discrimination Act 1977 ("the AD Act") in accordance with the terms of Order 4, 5 and 6. 8 The effect of a certificate issued under s 82 of the Tribunal Act is that once it is filed in the registry of a court having jurisdiction to give judgement for that debt, in this case the Local Court, it operates as a judgement of that court. Similarly once a s114 certificate is registered in the Supreme Court it operates as judgement of that Court. Material before the Tribunal 9 Filed on behalf of the Applicant on 10 May 2006 were submissions and evidence which included a statement by his solicitor, Jane Gouldstone, dated 8 May 2006. The Applicant was granted an extension of time to put on additional material and on 24 May 2006 a number of other documents were filed with the Tribunal which included correspondence between the parties. 10 No submissions were received from the First Respondent. The Second Respondent filed submissions on 5 and April and 30 May 2006. On 26 May 2006 the Tribunal received submissions from the Second Respondent's brother, Mr Phillip Nounnis. Have the consent orders been complied with? Payment of $5000 by the First Respondent 11 There is no evidence to contradict the Applicant's claim that he has not received any payment from the First Respondent in contravention of Orders 1, 2 and 3. 12 We find these orders have not been complied with. Orders relating to TICA 13 It is instructive to set out the terms of these orders in full: 4. That the First Respondent and the Second Respondent, within 7 days of today's date [2 March 2006], prepare a letter to TICA (Tenancy Default Control Pty Ltd) requesting a retraction of the entry relating to the alleged late payment of rent by the Applicant and do all such other acts as are necessary to have the Applicant's name removed from the Default List. 5. That the letter to TICA, referred to in Order 4, include a statement that there are no rental monies owing by the Applicant and that the entry was due to payment at a Post Office not a bank rather than any late payment. 6. That the First Respondent provide a copy of the letter of the First Respondent and the Second Respondent referred to in Orders 4 and 5 to the Applicant within 7 days of today's date. 14 From information gleaned from TICA's web site, it purports to collect information about individual tenants including whether they have a history of defaulting in rental payments. Access to that information is provided to member landlords and real estate agents. 15 The above orders were apparently designed to have the Applicant's name removed from TICA's Default List. The Applicant contended that his name was on that list and that as a consequence he had been prejudiced in obtaining rental accommodation. 16 On 27 February 2006 Mr Burgin, the solicitor for the First Respondent, wrote to TICA in the following terms: " Acquasun Pty Ltd hereby unreservedly withdraws all information supplied to your agency as relating to David John Gardiner, date of birth 6.1.72 in connection with his former tenancy at 13 Kantara Rod, Canton Beach. In this regard there was during and after the tenancy no rental owing by Mr Gardiner and the entry of default was due to the fact that a payment of rent was made to the Post Office on time and that such payment was not actually late. 17 On receipt of that letter Ms Gouldstone wrote to Mr Burgin and complained that the letter was inadequate as first, the date of birth given for the Applicant was incorrect and second, it was not on letterhead and did not include the company seal. 18 In reply Mr Burgin advised that an amended letter with the Applicant's correct date of birth had been prepared and forwarded to his client. He undertook that should his client return that letter he would forward a copy to Ms Gouldstone. Mr Burgin further wrote that it was his understanding that he was no longer instructed in the matter. 19 On 21 March 2006, not having heard anything further from the First Respondent or its solicitor, Ms Gouldstone wrote directly to the First Respondent, advising that the letter to TICA was unacceptable and, unless it were rectified, she would apply to have the matter relisted before the Tribunal and seek costs on an indemnity basis. No response was received. 20 The day before Ms Gouldstone had written to the TICA and requested confirmation that her client's name had been removed from TICA's database. On 5 April 2006 she was contacted by Mr C Nounnis apparently after he had received the Tribunal's directions. She was unable to speak to him on that occasion and took his number. Ms Goldstone has tried to speak to the Second Respondent by phone on two occasions without success. 21 On 9 May 2006 Ms Gouldstone rang the offices of TICA and spoke to Phillip Nounnis, the Second Respondent's brother and asked when a reply to her letter of 20 March 2006 could be expected. She claimed that he told her a letter would not be forthcoming until a self-addressed enveloped was provided. She then wrote again to TICA and in similar terms to the Second Respondent requesting information on whether her client's name had been removed from TICA's data base and undertook to pay all reasonable costs of providing that information. She said that shortly after she was rung by Mr C Nounnis and told: "I don't have to give you anything. If you want any information from TICA you can use the free service which has a 28 day turnaround or you will have to pay for it. …TICA will not bend its policies…You are trying to take the easy way out and get information without going through the proper channels. I have sent correspondence to the ADT. I don't have to tell you anything. Sending you a letter won't prove David Gardiner's name has been taken off the TICA data base." 22 Six weeks after the deadline for submissions had expired the Tribunal received a letter from Mr P Nounnis who is apparently a director of TICA. He asserted 1. that no information adverse to Mr Gardiner was held on the TICA data base; 2. the First Respondent had ceased to be a member of TICA as a result of its business being sold in February 2005; 3. the purchaser of that business did not "purchase the rent roll of Asher Coast Wide Real Estate". 23 Mr P Nounnis gave a lengthy account of TICA's dealing with Ms Gouldstone throughout May 2006. On his account the following entry was made in TICA's "Public Inquiry Data Base" noting that a letter had been received from Ms Gouldstone seeking information about whether the Applicant's name remained on the TICA data base: " no money supplied no free access requested no SSAE provided to TICA no signed authority has been provided to TICA from the solicitor to request such information TICA has run a check on the database only to find the tenant is no longer listed… TICA did not respond to the Applicant due to the above reasons Solicitor's letter has now been filed with tenant's previous letters to TICA [On 6 July 2005 and 23 August 2005 the Applicant's solicitors wrote to TICA asking if the Applicant remained n the TICA database. That information was not provided for essentially the same reasons recorded above.]" Did the First Respondent comply with Orders 4, 5 and 6? 24 The first issue to be determined is whether the letter of 27 February 2006 written on behalf of the First Respondent and addressed to TICA complied with the terms of Order 4. The Applicant asserted that it did not as it provided details about Mr Gardiner which were incorrect, was not on letterhead and did not contain the company seal. There is no evidence of whether the second letter prepared by Mr Burgin and referred to in correspondence with the Applicant's solicitor was in fact sent to TICA. 25 Order 4 required the Respondents to "[p]repare a letter to TICA … requesting a retraction of the entry relating to the alleged late payment of rent and do all such other acts as are necessary to have the Applicant's name removed from the Default List". The Orders prescribed neither the form nor content of that letter. In our view it is implicit that the letter would contain sufficient information to enable identification of the Applicant and the party applying to have his name removed. Even if we are wrong on that point it seems to us that the apparent refusal by the First Respondent to issue an amended letter once the shortcomings detailed by Ms Gouldstone were bought to its attention constitutes a contravention of the second part of Order 4 which required the respondents to "do all such other acts as are necessary to have the Applicant's name removed from the Default List". 26 Order 6 required the First Respondent to provide the Applicant with a copy of the letter referred to in Order 4. While a copy of the initial letter was provided to the Applicant within time there is no evidence that the amended letter was sent to TICA. For the reasons as given above we believe it is implicit from Order 4 that a letter in appropriate form would be sent to the TICA. 27 Before finally determining whether the First Respondent complied with these Orders we consider the submissions of the Second Respondent. Did the Second Respondent comply with Order 4? 28 The Second Respondent concedes that by 6 April 2006 or about a month after the date for compliance he had taken no steps to comply with his obligations under Order. He claims he was forbidden by his brother to disclose any information about TICA to the Applicant (or anyone else) and in any event he did not appreciate that he had any obligations in relation to the orders that related to TICA. But in any event he contends that those orders had been fully complied with. In addition, he contends that it was simply unnecessary to take any steps as the Applicant's name had been removed from the TICA register in late 2005. 29 Ms Goldstone's evidence, which we accept, is that she has attempted to contact the Second Respondent on a number of occasions without success. The entry in TICA's public inquiry database for 11 May 2006, is consistent with that claim. 30 It seems to us beside the point that the Second Respondent was, as he contends, instructed by his brother not to disclose any information held by TICA. The Second Respondent had entered into an agreement that required him to do certain things including prepare a letter addressed to TICA with the First Respondent. He did not do so. Nor did he make any effort to advise the Applicant that the letter was redundant as his name had been removed from TICA's register. Nor is there any evidence of the Second Respondent taking any steps to have Mr Gardiner's name removed from the TICA Default List. 31 Leaving aside the issues of procedural fairness raised by Mr P Nounnis' unsolicited letter to the Tribunal that was apparently not copied to the Applicant and received after the deadline for submissions had expired, it seems to us somewhat beside the point whether at the relevant time, namely the time the terms of settlement were entered, the Applicant was listed by TICA. Both respondents agreed to write to TICA and to take reasonable steps to the Applicant that his name had allegedly been removed. It is not clear to us why, if the Applicant's name had been removed from the default list well before the hearing date as is now claimed, the respondents agreed to those orders in the first place. In any event, they did not comply with the order nor did they advise him that his name had been removed sometime last year as the Second Respondent contends now to be the case. Summary 32 For the reasons as given we are not satisfied that the steps taken by the First Respondent constitute compliance with Order s 4 and 5. It follows that the First Respondent is in default of Order 7. We find that the Second Respondent has failed to comply with Order 4. Orders sought by Applicant 33 The Applicant seeks the following orders: That the orders made on 23 February 2006 be set aside and the Tribunal proceed to determine the initiating complaint referred to it by the President of the Board. That the orders made on 23 February 2006 be amended so that the director/principal of the First Respondent, Mr Taylor, be substituted as the First Respondent. Alternatively or in addition that Mr Taylor be joined as party to these proceedings. That the Tribunal make orders in the nature of injunctive relief to prevent the First Respondent being divested of any property or any further property. That the Tribunal make orders under s 108(7) of the Anti-Discrimination Act 1977 That the Tribunal consider whether the conduct of the First and Second Respondents and Mr Taylor constitutes "obstruction" for the purpose of s 124 of the Anti-Discrimination Act 1977. That the Tribunal consider whether it ought report the conduct of the First and Second Respondents to the Supreme Court under s 131 of the Tribunal Act. That the Tribunal make costs orders against both respondents on an indemnity basis. Proposed Order 1: Set Aside Decision 34 It is contended for the Applicant that the orders made on 23 March ought be set aside for the following reasons: first, because the Respondents did not enter into the settlement on a bona fide basis; second, as a consequence of the default the Applicant has now been placed under considerable anxiety and distress; third, after the orders were made the Applicant has been further victimised and harassed by the respondents, citing as an example an alleged incident on 21 April 2006 involving death threats. Tribunal's power to make Consent Orders 35 The Tribunal's power to make orders in respect of a complaint of a contravention of the AD Act is derived from s 108 of that Act. Section 108(2) provides that if the Tribunal finds a complaint substantiated it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) …. (f) …. (g) decline to take any further action in the matter. 36 Section 86 of the Tribunal Act gives the Tribunal the power to make consent orders providing three preconditions are met: (1) The Tribunal may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if: (a) the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement, and (c) the Tribunal is satisfied that the agreed settlement is in the best interests of the person whose interests are considered by the Tribunal to be paramount. (2) The Tribunal may dismiss the application that is the subject of the proceedings if it is not satisfied that: (a) it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement, or (b) the agreed settlement is in the best interests of the person whose interests it considers paramount. Tribunal's power to set aside its Orders 37 As a general rule a court has no power to set aside or vary a final judgement once judgement is entered: DJL v The Central Authority (2000) 170 ALR 659. There are a number of exceptions to that rule, one of which being where the judgement was obtained by fraud. (see DJL v The Central Authority at pp 670, 685). 38 In relation to tribunals the power to set aside a decision will be determined by reference to the legislation that created it. The ADT has no express power to revisit a decision except where there is an "obvious error in the text" (i.e., it may apply a "slip" rule). This is the case irrespective of whether the Tribunal is exercising its primary or review jurisdiction. (Cf. the broad power given to the NSW Workers Compensation Commission to set aside a decision: s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998.) 39 The principle of functus officio means that once orders other those of an interlocutory nature are entered the power if the Tribunal or court to determine the matter is "spent". 40 The Tribunal may however revisit a decision if the decision was subject to jurisdictional error or a breach of procedural fairness or was procured by fraud or misrepresentation (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) CLR 597; Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400.) 41 In Chi v Coles Supermarket Australia Pty Limited (EOD) [2006] NSWADTAP 3 the Appeal Panel explored the status of consent orders made within the Equal Opportunity division of the Tribunal. The Panel referred to Harvey v Phillips (1956) 96 CLR 235 in which the High Court considered the circumstances in which a consent order may be set aside and cited with approval the statement of Lindley LJ in Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 at 280, where his Lordship said: [T]o my mind, the only question is whether the agreement upon which the consent order was based can be invalidated or not. Of course, if that agreement cannot be invalidated the consent order is good. 42 The Panel went on to comment at [25] that "[w]here the underlying contract could not be set aside or varied, the circumstances would need to be exceptional before the consent orders would be set aside: Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 and Paino v Hofbauer (1988) 13 NSWLR 193." The Appeal Panel would need evidence that [the party seeking to have the orders set aside] was coerced or at least unduly influenced to sign the Deed of Release before setting aside the Tribunal's consent orders". Applicant's submissions 43 It is submitted for the Applicant that while the proposed course of setting aside the consent orders might be an "unusual step" the Tribunal has the power to do so citing in support s 81(1) of the Tribunal Act. The Applicant also argues that Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 and Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281 [2005] NSWADT 281 (on appeal) are authority for the proposition that the Tribunal has jurisdiction to hear a matter which has been settled or compromised. Finally it is argued for the Applicant that the matter has not concluded at this stage as Order 8 granted the parties liberty to be heard by the Tribunal prior to dismissal of the proceedings. Section 81 44 The Applicant argued that s 81 of the Tribunal Act gives the Tribunal a power to revisit or revoke the orders entered on 23 March 2006. It is instructive to set out the terms of that provision in full: (1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and (b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings. (4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 45 While wide in scope s 81 does not in our view give the Tribunal the power to set aside orders of the type made on 23 February 2003. The power granted by s 81(4) to set aside "the proceedings, a step taken in the proceedings, or a decision in the proceedings" will only be enlivened where the Act, regulations or a rule of the Tribunal is not complied with in relation to the commencement or conduct of the proceedings . Here there has been no non-compliance with the Act, regulations or rules of the Tribunal in relation to the commencement or conduct of the proceedings. 46 Nor does s 81(1) support the Applicant's argument. An "amendment to the proceedings" is not in our view akin to the setting aside of a final order. Qantas and Sebastian 47 In Qantas Airways Ltd v Gubbins the Court of Appeal considered whether the (then) Equal Opportunity Tribunal, had jurisdiction to determine the defences raised by Qantas of release by deed and estoppel. Their Honours held that the Tribunal did have the power to determine that question. The majority concluded that the complainants were not bound by the terms of a general release given in the context of an agreement that was reached before their complaint had been referred to the Tribunal. 48 In Sebastian v Rail Infrastructure Corporation the Tribunal held that an agreement reached between the parties following referral by the Tribunal to mediation was binding and the Respondents were entitled to orders which gave effect to that agreement. 49 In our view neither case assists the Applicant. Neither involved the making of consent orders. Nor did they address the issue now before us namely whether the Tribunal has power to set aside orders where one the parties is in default. Order 8 50 Order 8 and 10 provided: 8. That in default of any of the above orders the Applicant be given liberty to re-list the matter against the Respondent in default and have it set down for hearing in relation to the aspects of default only. 10. That the matter otherwise be dismissed. 51 Order 8 gives the Applicant the right to have the matter relisted in relation to the aspects of default only. We do not accept the Applicant's submission that it gives him the right to apply to have the consent orders set aside and the complaint determined on its merits. If this were the case the words in relation to the aspects of default only would be redundant. Conclusions 52 It is not asserted that the consent orders were made in contravention of s 86(1) of the Tribunal Act. Nor is it asserted that they were subject to jurisdictional error or a breach of procedural fairness or procured by fraud or misrepresentation. The certificates issued under s 82 of the Tribunal Act and s 114 of the AD Act mean that the orders can now be enforced. The Applicant was legally represented when the underlying agreement was reached and the consent orders entered. While it may have been, as the Applicant contends, that the respondents did not enter into the settlement agreement on a bona fide basis they remain bound by them. Their lack of bona fides, if demonstrated, raises other issues but does not, of itself, give rise to grounds to set aside the orders. 53 For these reasons we are not persuaded that the Tribunal has the power to set aside the consent orders made on 23 February 2006. Proposed Orders 2 and 3 54 It is convenient to deal with these proposed orders together. The Applicant seeks that the orders made on 23 February 2006 be amended so that the director/principal of the First Respondent, Mr Taylor, be substituted as the First Respondent (proposed Order 2). In addition or in the alternative he seeks that Mr Taylor be joined as a party to these proceedings (proposed Order 3). 55 It is contended for the Applicant that the Tribunal should make these orders as there are reasonable grounds to suspect that when it is sought to enforced them the First Respondent will seek to avoid its outstanding debts. The Applicant points out that the First Respondent's office is located with Asher Real Estate, apparently a business owned by Mr Taylor, and asserts that should the Sheriff attend at that office, it would expected s/he will be informed that any items of value belong to Asher Real Estate and are needed to conduct the business and, as a result, no items will be seized. 56 In addition it is contended that information obtained from company searches reveal that the First Respondent might be in the process of divesting itself of its property. If this is found to be correct, it is argued that the Applicant would not be able to follow up the matter through the Supreme Court because of the significant costs that would be involved. 57 These arguments are, at this stage, merely speculative and for that reason alone do not provide a proper basis for the Tribunal to revoke or amend its previous orders. More significantly, however, we are unable to accede to Proposed Order 2 for essentially the same reasons given in respect to Proposed Order 1. In our view the Tribunal does not have the power to amend consent orders without the consent of all parties. Nor do we agree that it is open to us to join Mr Taylor and, as we understand the Applicant to propose, amend the consent orders to make him party to those orders. While s 67 of the Tribunal Act allows the Tribunal to join a person at any time in the proceedings we do not believe that as a consequence of that joinder it is then open to amend the consent orders in the form proposed by the Applicant. Mr Taylor was never a party to the original proceedings. They have concluded. It is far too late to consider joinder of fresh parties. Proposed Order 4: Injunctive Orders 58 The Applicant seeks "orders of an injunctive nature" to prevent the First Respondent being divested of any property or any further property. The Tribunals' power to make such orders, it is contended is to be found in s 85 of the Tribunal Act. Section 85 provides that "the power of the Tribunal to make an order … includes a power to make the order … subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision". 59 The Applicant is in effect seeking an order in the form of an Anton pillar order. Leaving to one side the issue of whether the Tribunal has power to make an order of this type, it is to be noted that the power to impose conditions can only be activated "when making the order". That time has passed. Proposed Order 5: Damages under s 108(7) of the AD Act 60 The Applicant seeks an order for damages under s 108(7) against both respondents. It is contended that as result of their failure to comply with the orders made on 23 February 2006 the Applicant has been subject to significant distress and anxiety. 61 Section 108(7) of the AD Act provides that "If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $40,000 by way of compensation for failure to comply with the order." 62 The TICA orders were made under s 108(2)(c). As noted above, neither party has complied with their respective obligations under those orders. 63 There is no evidence of whether the Applicant has suffered any economic loss as result of the default. The only evidence about loss relates to non –economic loss or what is commonly referred to as 'pain and suffering'. Some evidence has been led to the effect that following the orders made on 23 February 2006 the Applicant experienced heightened distress and anxiety. The Applicant had a legitimate expectation that both parties would comply with the consent orders. It is entirely plausible that their default caused him distress and anxiety. 64 It is apparent that the non-compliance with the TICA orders is not the sole cause of the Applicant's distress. No doubt other factors have contributed including the First Respondent's failure to comply with the monetary orders and the alleged misconduct or perception of alleged misconduct on the part of the First Respondent and Mr Taylor following 23 February 2006. 65 It is not possible for us to determine with any precision the extent to which non-compliance with the TICA orders contributed to the Applicant's distress. We find that while not the sole cause it was a material cause of his distress and anxiety. 66 It is always difficult to determine the appropriate level of damages for non-economic loss and this case is no exception. However, an applicant should not to be deprived of damages on that account (see Wilcox J in Hall v Sheiban (1985) ALR 503 at 543). In the circumstances of this case, we believe having regard to all the circumstances that an amount of $10,000 to be reasonable, three quarters of which is payable by the First Respondent and the remainder by the Second Respondent. Proposed order 6: Report contempt to Supreme Court 67 The Applicant has requested that the Tribunal consider whether it ought report the conduct of the First and Second Respondents to the Supreme Court under s 131 of the Tribunal Act. 68 He alleges that the respondents have done certain things, including failing to comply with a summons and intimidating him during and immediately following, the February hearing. It is asserted that this and other conduct could constitute contempt of the Tribunal. 69 The directions made on 27 March 2006 invited the parties to make submissions about the allegation of non–compliance with the consent orders and the proposed orders sought by the Applicant. It is not appropriate in these reasons to go beyond those matters and address the matters now raised by the Applicant. It goes without saying that as a matter of procedural fairness the respondents must be given an answer to respond to these allegations. 70 The Applicant is entitled to request the Tribunal to consider whether any or all of the alleged misconduct constitutes contempt and, if so, whether the matter ought be reported to the Supreme Court. In the event that the Applicant wishes to pursue this 'application' we consider the most appropriate course would be that he write to the President of the Tribunal and bring these allegations to his attention. Proposed order 7: Obstruction 71 The Applicant also requests the Tribunal to consider whether the conduct of the respondents and Mr Taylor constitutes "obstruction" for the purpose of s 124 of the AD Act. For the reason given above this matter will not be dealt with in these reasons. Costs 72 The Applicant seeks an order for costs incurred after 23 February 2006 on an indemnity basis. 73 Section 110 of the AD Act provides that each party to an inquiry is to bear his or her own costs and costs can only be awarded where the Tribunal is of the opinion that there are circumstances that justify it doing so. The application of this provisions has been considered in some detail in Z v University of A & Ors (No 9) [2005] NSWADT 25 and Battenberg v The Union Club (No 3) [2005] NSWADT 126. What emerges from those cases is that there is a rebuttable presumption against costs and "there must be something over and beyond a normal course of circumstances" in order to justify an order for costs. 74 It goes without saying that had the orders made on 23 February 2006 been complied with, this application would be otiose. In our view the Applicant's solicitor has made all reasonable attempts to ensure that the TICA orders were complied with. Both respondents were unhelpful when she sought to obtain information about whether they had complied with their respective obligations. As a consequence additional costs were incurred. 75 In our view the circumstances of this case warrant an order for costs. 76 We order that the First and Second Respondent are jointly and severally liable to pay the costs incurred by the Applicant after 23 February 2006, payable on an indemnity basis. Orders 1. That the application made by the Applicant to set aside the consent orders made on 23 February 2006 is dismissed. 2. That the application made by the Applicant to amend the consent orders made on 23 February 2006 is dismissed. 3. That the First Respondent pay the Applicant the sum of $7,500 within 21 days of the date of these orders in addition to any amount it was ordered to pay the Applicant on 23 February 2006. 4. That the Second Respondent pay the Applicant the sum of $2,500 within 21 days of the date of these orders. 5. That the First and Second Respondent are jointly and severally liable to pay the costs incurred by the Applicant after 23 February 2006, as agreed or assessed payable on an indemnity basis. 6. These proceedings are 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.