Crook v NSW Department of Housing [2007] NSWADT 106

CITATION: Crook v NSW Department of Housing [2007] NSWADT 106

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: David Crook RESPONDENT NSW Department of Housing

FILE NUMBER: 061063

HEARING DATES: 28 March 2007

SUBMISSIONS CLOSED: 28 March 2007

DATE OF DECISION: 11 May 2007

BEFORE: Grotte E - Judicial Member; Schneeweiss J - Non Judicial Member ; Monaghan-Nagle L - Non Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED : Anti-Discrimination Act 1977

Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001] NSWADTAP 10 CASES CITED: Gallagher v NSW Police Service (1998) NSWEOT Tu v University of Sydney [2002] NSWADTAP 25

APPLICANT No appearance REPRESENTATION: RESPONDENT A Jungwirth, counsel

ORDERS: 1. Complaint dismissed; 2. No order as to costs

REASONS FOR DECISION Background 1 Mr David Crook lodged a complaint with the Anti Discrimination Board on 3 March 2006 alleging disability discrimination in the area of goods and services against the NSW Department of Housing. Mr Crook is a tenant of the Department. He alleged that he attended "Poet's Corner" of the Department of Housing in Redfern on 1 March 2006 to return some keys as requested by an officer of the Department but was yelled at by another departmental officer and ordered out of the office. He alleged the same person said to him "We can't put up with your crazy behaviour" and "Your constant agitation upsets everyone here". 2 Mr Crook claims he suffers from an anxiety disorder and was embarrassed and humiliated by the incident. He claims the Department is aware of this. He claims he requested a written apology the following day. 3 On 9 March 2006 the Board wrote to the Department enclosing a copy of Mr Crook's complaint. 4 On 30 March 2006 the Department responded denying the claims. The Department also informed the Board that Mr Crook had restricted access to the Department since 2004. The Department stated it wrote to Mr Crook expressing regret at any misunderstanding that led to his embarrassment. It was acknowledged an officer of the Department asked Mr Crook to leave the Redfern offices in accordance with the restrictions unaware another officer had asked Mr Crook to attend to return some keys. The officer denied being abusive. 5 The matter was unable to be conciliated and referred to the Tribunal by the President of the Board at the request of Mr Crook. 6 The Tribunal set the matter down for a case conference on 4 October 2006 before Deputy President Hennessey. Mr Crook attended the case conference in person as did Ms Eccleston, Solicitor for the Respondent. 7 I have reviewed the Tribunal file and ascertained that at that case conference the Deputy President noted Mr Crook did not have legal representation and refused an offer of legal assistance from the Tribunal. The matter was set down for mediation on 10 November 2006 and a timetable was set for the complaint to progress to a hearing on 17 January 2007 should the mediation fail to resolve the matter. 8 On 17 October 2006 the Tribunal's offer of mediation was withdrawn because of Mr Crook's attitude towards the mediator as expressed to Registry staff and his abusive behaviour towards the Registry staff. 9 The matter was to proceed instead to a hearing on 17 January 2007. However on 15 December 2006 the Respondent's solicitor requested an adjournment of the hearing due to the unavailability of a crucial witness. The adjournment was granted and the hearing date of 17 January2007 was vacated. A new hearing date of 22 January 2007 was fixed. 10 The Applicant did not appear before the Tribunal on 22 January 2007. Counsel appeared on behalf of the Respondent instructed by Ms Eccleston. 11 There is no explanation on the Registry file regarding Mr Crook's failure to appear but there is a letter addressed to Mr Crook and sent to him by registered post stating "It appears that you were unavailable through no fault of your own and, in the circumstances, the Tribunal adjourned the hearing to a date to be determined." The Applicant was also informed that if he did not contact the Tribunal Registry within two months of receiving that letter, steps would be taken to dismiss the complaint. 12 The Tribunal did not receive any response from Mr Crook to that letter. Accordingly, the matter was listed for dismissal on 28 March 2007 for want of prosecution. The Applicant was informed of this development by registered post. 13 On 28 March 2007 there was no appearance by Mr Crook, but the Respondent appeared, represented by Counsel. As there was no appearance by the Applicant, the complaint was dismissed pursuant to section 102 of the Anti Discrimination Act 1977 (ADA), following which Mr Jungwirth of Counsel applied to the Tribunal for a costs order against the Applicant pursuant to section 110(2) of the ADA. It was submitted that special circumstances existed to warrant a costs order because the Respondent attended the Tribunal on three occasions to defend the complaint and incurred the expense of preparing the matter for hearing. There was no explanation for the Applicant's non-attendance at the hearing and at the initial case conference the Applicant refused an offer of legal assistance. The mediation conference was withdrawn because it was submitted the Applicant had been abusive towards Registry staff. It was submitted the Applicant's complaint was vexatious and an abuse of process. It was submitted a costs order should be made against the Applicant because of the manner in which he has conducted the proceedings. 14 Section 110 of the ADA provides that each party to the proceedings is to pay his or her own costs unless the Tribunal is of the opinion that there are circumstances which justify making any other order as the Tribunal thinks fit. 15 This Tribunal agrees with the observations of the Appeal Panel of this Tribunal in Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001] NSWADTAP 10, when it considered the former section 114 of the Anti Discrimination Act 1977 that the section does not prescribe a test to be applied but creates a presumption in subsection (1) and then a discretion in subsection (2). Section 110 has replaced section 114 but is in the same terms as the former section 114. The Appeal Panel in that matter cautioned the discretion must be exercised judicially and no authority or rule can determine whether in any particular case an order should be made. The Appeal Panel in Cleary's case followed the principles set out in Gallagher v NSW Police Service (1998) NSWEOT where it was stated that section 114(1) required that in the normal course an award for costs should not be made and that "there has to be something over and beyond the normal course of circumstances to justify the making of an award for costs". 16 Moreover, as the Appeal Panel of this Tribunal stated in Tu v University of Sydney [2002] NSWADTAP 25 "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." The Appeal Panel in Tu's case also stated however, "some caution should be shown in the equal opportunity jurisdiction in exposing the complainant to the whole of the respondent's costs even where the complaint has been summarily dismissed. Some account also needs to be taken of the commonly-unequal positions in terms of access to legal resources that arises as between applicants and respondents." 17 In this matter before us, we are not satisfied that circumstances exist to justify making an order for costs against the Applicant, Mr Crook. Mr Crook's complaint was ultimately dismissed for want of prosecution. However he attended the first and only case conference and indicated his intention to proceed with his complaint. There was no suggestion that his complaint was lacking in substance or vexatious or frivolous but there was a factual dispute as to what was said and whether there had been a contravention of the legislation. This was to be determined by the Tribunal if the matter could not be resolved. He agreed to a mediation conference, which unfortunately did not proceed because of his abusive conduct towards Tribunal staff. The original hearing date was vacated following a request by the Respondent and a new date was set. It is not clear to us why Mr Crook failed to attend the hearing on 22 January 2007 because there is no explanation on the Tribunal file, but it is clear that it was not his fault according to the letter sent to him by the Registry. No undue delay was caused by Mr Crook. 18 We are not satisfied that there has been an abuse of process or any persistent failure to comply with Directions and Mr Crook's failure to appear does not seem to have been his fault. 19 Whilst we have some sympathy for the Respondent in that it was required to expend funds to prepare for the hearing, the matter was relatively straightforward and could not be considered to be complex. It was one of alleged direct discrimination and it concerned a factual dispute as to what was in fact said. Submissions were prepared by Counsel for the Respondent but again, these would have been an assessment of the evidence in the context of the legislation as well as submission regarding any alleged contravention of the legislation. 20 Accordingly, we are not satisfied that circumstances exist to justify a costs order against Mr Crook. 21 The complaint is dismissed pursuant to section 102 of the ADA. 22 No order as to costs.