Appeal Panel - Internal CITATION: Wilde v University of Sydney (EOD) [2004] NSWADTAP 32 APPELLANT PARTIES: Taragh Wilde RESPONDENT University of Sydney FILE NUMBER: 039070 HEARING DATES: 06/11/2003 SUBMISSIONS CLOSED: 11/21/2003 DATE OF DECISION: 07/27/2004 Wilde v University of Sydney [2003] NSWADT 206 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Greenhill K - Non Judicial Member CATCHWORDS: costs MATTER FOR DECISION: Costs FILE NUMBER UNDER APPEAL: 011060 DATE OF DECISION UNDER APPEAL: 09/02/2003 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Victorian Civil and Administrative Tribunal Act 1998 Brooks Maher v Cheung [2001] NSWADT 18 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 CASES CITED: Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 Tu v University of Sydney (No.2) [2002] NSWADTAP 25 Wilde v University of Sydney (No.2) [2004] NSWADT 16 Wilde v University of Sydney [2003] NSW ADT 206 APPELLANT REPRESENTATION: In person RESPONDENT K Eastman, barrister ORDERS: The respondent's application for costs is refused. REASONS FOR DECISION Background 1 On 2 September 2003, the Tribunal dismissed a complaint of transgender discrimination brought by the appellant, Taragh Wilde against the University of Sydney. (Wilde v University of Sydney [2003] NSW ADT 206). On 6 November 2003, the Appeal Panel dismissed the appellant's appeal against the Tribunal's decision and the respondent applied for costs. The Appeal Panel reserved its decision on costs pending the Tribunal's decision on costs in the primary proceedings. (Wilde v University of Sydney (No.2) [2004] NSWADT 16.) Facts and Findings 2 The appellant did not appear before the Appeal Panel at the hearing on 6 November 2003. In oral reasons given on that day, we noted that Registry staff had consulted the appellant about potential hearing dates after the appeal had been lodged. The Tribunal wrote to Taragh Wilde on 8 October 2003 to advise that the appeal was listed for hearing on 6 November 2003 at 10 am. 3 The transcript shows that the Deputy President telephoned the appellant at the beginning of the hearing. The appellant explained that the appellant thought that the appeal was on the following day and offered to be at the Tribunal within an hour. The Appeal Panel told the appellant that it was reluctant to adjourn the proceedings because the appellant was on notice that the matter was listed for 10 am that day. We find that the appellant was given adequate notice of the hearing and that the appellant failed to attend. 4 The Deputy President said to the appellant: "If you would like to say anything on the phone, we are willing to listen, otherwise a decision will be made today." The appellant then said, "Do you want to say anything now?" The appellant replied: "Only that I think the Tribunal is completely bent." The Appeal Panel decided to proceed in the appellant's absence. The Appeal Panel gave the appellant until 21 November 2003 to file written submissions in relation to costs. The appellant has not filed any submissions. Jurisdiction and statutory provisions 5 Section 88 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') sets out the law applicable to costs in Appeal Panel proceedings (Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 at [23]). The provision states: "(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. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 6 In Brooks Maher v Cheung [2001] NSWADT 18 (12 February 2001), the Appeal Panel discussed the meaning of "special circumstances" at [25]. The Panel stated: "We are satisfied that the plain meaning of "special circumstances" is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But "special circumstances" alone are not sufficient. Under s 88(1), the special circumstances must "warrant an award of costs." The circumstances that would or would not "warrant an award of costs" cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted." 7 Practice Note 12, issued on 4 March 2003, sets out the examples of "special circumstances" which may warrant an order for costs under s 88(1). The following examples are relevant to these proceedings: · whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as vexatiously conducting the proceeding; · whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; · the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; · where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success 8 Because the respondent's application for costs in the primary proceedings had not been determined when the matter was listed for appeal, Ms Eastman relied in part on the submissions made in those proceedings. (Wilde v University of Sydney (No.2) [2004] NSWADT 16.) Those submissions included allegations that the appellant conducted the proceedings vexatiously, that there were delays and that the case had no tenable basis in fact. Those submissions correspond with the first three factors listed above as being relevant to the Appeal Panel's decision on costs. The respondent also submitted that the appellant displayed contempt towards the Appeal Panel in failing to attend the hearing and in stating: "Only that the Tribunal is completely bent." (see [4] above). In this context, "contempt" is understood in its ordinary rather than legal sense: i.e., that the appellant was "scornful" towards the Tribunal or Tribunal members (see Collins Concise English Dictionary). 9 Taking into account the respondent's submissions and relevant case law, the special circumstances which are said to warrant an award of costs in this case are that: · the appellant has vexatiously conducted the proceedings; · the appellant has caused the respondent to incur costs because of unreasonable delays; · the appellant has made a claim that has no tenable basis in law; · the appeal was without any real prospect of success; or · the appellant is contemptuous of the Tribunal. Reasons and decision 10 Vexatious. We agree with the Tribunal's comments in the costs decision relating to the primary proceedings that vexatious conduct involves bringing proceedings with the intention of harassing the other party or with the intention of wasting time or causing delay (Wilde v University of Sydney (No.2) [2004] NSWADT 16 [27]). In our view the appellant has not brought this appeal with such an intention. The appellant attempted to articulate an error of law in the notice of appeal and identified ten grounds of appeal relating to the merits of the case. While the Appeal Panel rejected the appellant's submission that the Tribunal had erred in law and declined to give leave for the appeal to be extended to the merits of the decision, there was no evidence that the appeal was made with the intention to harass the respondent or waste time. 11 Unreasonable delay. Ms Eastman submitted that the matter had been listed for some time, that the dates were available to all parties and that the respondent had prepared for the appeal on the understanding that there would be a full hearing. However, unlike the situation in Tu v University of Sydney (No.2) [2002] NSWADTAP 25, the appellant's failure to attend the hearing did not cause delay as the hearing continued and a determination was made in the appellant's absence. At most, the proceedings were delayed by about an hour while inquiries were made as to the appellant's whereabouts. 12 No tenable basis in law. Ms Eastman submitted that the respondent prepared for the appeal with insufficient material as to the grounds on which the appeal was based. While we accept that the grounds of appeal were not clearly articulated, the appellant was not legally represented and should not be subject to a costs order merely because of an inability to clearly identify the grounds on which the appellant's appeal is based. The appellant attempted to identify grounds of appeal and the Appeal Panel examined those grounds, recognising the fact that the appellant was self represented (Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 at [2]). Given the fact that the appellant was self represented, the complex nature of the proceedings and the appellant's difficulties in presenting the appellant's case, we believe that "some indulgence" should be extended to the appellant. (See Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [33].) 13 No real prospect of success. This grounds overlaps with the grounds discussed above. While the grounds of appeal were weak and the appeal was ultimately unsuccessful, account must be taken of the fact that the appellant was unrepresented. In that context, we are not satisfied that they had no real prospect of success. 14 Scornful conduct. The appellant's failure to attend the hearing cannot be regarded as disdainful or scornful in circumstances where the appellant may genuinely have mistaken the date on which to attend. In relation to the appellant's comment that the Tribunal was "bent" it is apparent to us that the appellant was expressing frustration and disillusionment with the processes and decisions of the Tribunal and the Appeal Panel. The comment is not sufficiently serious to warrant an order for costs. 15 None of the matters listed above, either alone or in combination, amounts to "special circumstances" which would warrant a costs order under s 88(1) of the ADT Act. Accordingly, the respondent's application for costs is refused. Orders 16 The Tribunal makes the following order: The respondent's application for costs is refused. 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.