CITATION: Z v University of A, Dr D and Professor E [2003] NSWADT 258 DIVISION: Equal Opportunity Division APPLICANT Z FIRST RESPONDENT PARTIES: University of A SECOND RESPONDENT Dr D THIRD RESPONDENT Professor E FILE NUMBER: 031035 HEARING DATES: On the papers SUBMISSIONS CLOSED: 09/26/2003 DATE OF DECISION: 12/05/2003 BEFORE: Goode P - Judicial Member; Clayton S - Member; McDonald O - Member APPLICATION: Costs MATTER FOR DECISION: Costs' application arising out of dismissal of complaint LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998 Traino v Tuggerah Lakes Golf Club Ltd [2003] NSWADT 146 APPLICANT REPRESENTATION: In person RESPONDENT J Oakley, barrister ORDERS: 1 The complaint is dismissed under s 111(1A) of the Anti-Discrimination Act 1977; 2 The costs' application is dismissed Background to the Application 1 This is an application by the Respondents for costs pursuant to s 111(2) of the Anti-Discrimination Act 1977 ("the ADA"). The application is opposed by the Applicant. Although the Applicant is the respondent to the present application, for convenience we refer to him throughout this decision as the Applicant. 2 On 5 October 2001 the Applicant lodged a complaint with the President of the Anti-Discrimination Board ("the Board") alleging victimisation against the First and Second Respondents. He later requested that the Third Respondent be added as a respondent to the complaint. It was alleged by the Applicant that he had been victimised as a consequence of making various allegations, including allegations of unlawful discrimination, against the three respondents and various other persons. 3 The Applicant's initial allegations were the subject of a separate complaint to the President on 30 December 1997. The President referred those matters to the Tribunal on 19 January 2000. They were subsequently heard by the presently constituted Tribunal in 2002 and 2003. The Tribunal's decision is currently reserved and has been delayed as a consequence of the Applicant making an application to reopen his case. 4 The Applicant's present complaint is based on a letter dated 26 April 2001 which was sent to the Applicant by the solicitors representing the three respondents. That letter stated as follows: We do represent Dr D and make the following comment in relation to your desire to speak to persons at [Dr D's place of employment]. There are no rules that prevent you speaking to persons who may be potential witnesses if you so desire…If you are intending to make allegations to those persons that our client was a plagiariser, that is a serious allegation to make and one, in our view, that is not supported by the findings conducted at the University of A. Our client is entitled to take action against you for defamation, and instructs us that he will consider doing so, if you make allegations of that kind, particularly to persons who may have influence upon his employment. 5 After investigating the matter, the President of the Board declined the complaint as 'vexatious and/or lacking in substance' under s 90(1) of the ADA. On 4 March 2003 the Applicant requested that the complaint be referred to the Tribunal under s 91(2) of the ADA. 6 The complaint was first listed before the presently constituted Tribunal for directions on 20 March 2003 at a time when the Tribunal was conducting an ongoing hearing into the original complaint of 30 December 1997. On that date Ms Oakley made an application that the complaint be dismissed under s 111(1) of the ADA. The application was adjourned until the completion of the evidence relating to the original complaint on 26 March 2003. Ms Oakley made brief oral submissions in support of the application. She submitted that the complaint should be dismissed on the basis that it was not capable of contravening the ADA and that it was vexatious and lacking in substance. 7 The s 111(1) application was adjourned until 5 and 6 June 2003 to coincide with the hearing of oral submissions in relation to the original complaint. On 6 June the Applicant indicated that he had prepared written submissions in response to the application. The Tribunal directed that these submissions be filed and served and that the Respondents be given an opportunity to reply. 8 The Respondents written submissions in reply were filed with the Tribunal on 13 August 2003. At the conclusion of their submissions, the respondents sought an order for costs against the Applicant. They relied on the following: The complete lack of merit of the complaint, the complainant's decision to request the referral of the complaint notwithstanding the President's decision that the complaint was vexatious and/or lacking in substance and the failure of the complainant to address the provisions of section 50 and why he says the letter was in breach of that section in his submissions constitute special circumstances within the meaning of section 88 Administrative Decisions Tribunal Act and warrant the making of a costs order against him under either (sic) section 111(2) AD Act. 9 By letter dated 10 September 2003, the Applicant advised the Registrar of the Tribunal that due to personal circumstances he wished to withdraw his complaint. He requested that the complaint be dismissed under s 111(1A) of the ADA and that each party pay their own costs. 10 The Respondents replied to the Applicant's letter on 26 September 2003. They advised the Registrar that they were still seeking an order for costs as outlined in their submissions of 13 August 2003. In addition to the matters set out in para 8 above, they submitted that the Applicant had delayed withdrawing his claim until after the Respondents had filed submissions in support of their application under s 111 of the ADA. Discretionary Costs' Provisions of the ADA 11 Relevantly, s 111 of the ADA provides: (1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. (1A) The Tribunal may dismiss a complaint if satisfied that the person… does not wish to proceed with the complaint. (1B)… (2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry. (3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997. 12 Section 111(2) is an exception to the general rule concerning costs, set out in s 114(1) of the ADA, which provides that each party to an inquiry shall pay his or her own costs. 13 Relevantly, s 114 of the ADA provides: (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… as it thinks fit. 14 Section 111(2) of the ADA permits the Tribunal to order the Applicant to pay the costs of the inquiry when it dismisses a complaint pursuant to either s 111(1) or s 111(1A). However it does not create a presumption in favour of a costs' order. Instead the Tribunal is vested with a discretion to award costs. This discretion must be exercised judicially: Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998. Withdrawal of the Complaint by the Applicant 15 The Applicant cites personal circumstances as the reason for the withdrawal of his complaint. He requests that the Tribunal dismiss the complaint under s 111(1A) of the ADA rather than s 111(1). He relies on the decision of Traino v Tuggerah Lakes Golf Club Ltd [2003] NSWADT 146 as authority for the proposition that in circumstances where a complaint is dismissed under s 111(1A), there should be no order as to costs. 16 In Traino v Tuggerah Lakes Golf Club Ltd the applicant withdrew his complaint 2 weeks prior to the scheduled hearing after the respondent indicated that it would be seeking to have the matter dismissed pursuant to s 111(1). The respondent applied for costs under s 111(2) but was unsuccessful. After noting that the applicant had sought to have the complaint dismissed under s 111(1A) and that he had withdrawn his complaint 2 weeks prior to the hearing after receiving legal advice, the Tribunal stated that it was not persuaded that it should make a costs' order against the applicant. The Tribunal's Reasons for Declining to Award Costs 17 As a consequence of the Applicant withdrawing his complaint, the Tribunal considers that it is appropriate to dismiss the complaint under s 111(1A) of the ADA. Therefore the Tribunal makes no finding as to whether the allegations in the complaint are capable of contravening the ADA or whether the complaint is vexatious or lacking in substance. In these circumstances, notwithstanding the late withdrawal of the complaint after the Respondents had filed written submissions in support of their s 111(1) application, the Tribunal is not persuaded that a costs' order should be made against the Applicant. Orders 18 The complaint is dismissed. 19 The application for costs is 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.