CITATION: Peck v Commissioner of Corrective Services No. (2) [2002] NSWADT 244 DIVISION: Equal Opportunity Division APPLICANT Mark Peck PARTIES: RESPONDENT Commissioner of Corrective Services FILE NUMBER: 8 of 1998 HEARING DATES: 11/10/02 SUBMISSIONS CLOSED: 10/11/2002 DATE OF DECISION: 11/25/2002 BEFORE: Ireland G - Judicial Member at 1; McDonald O - Member at 1; Silva A - Member at 21 APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Sivananthan v Commissioner of Police, NSW Police Service [2002]NSW ADT45 Maxwell v Department of Corrective Services [EOD][2001]NSWADTAP21 REPRESENTATION: A Healey, barrister T Anderson, barrister ORDERS: The Respondent pay such costs to the Applicant in such amount as the parties may agree within 28 days of the date of publication of this decision, and failing agreement by that time, costs are to be assessed pursuant to the Legal Profession Act 1987. Mr G R Ireland, Judicial Member and Mr O McDonald, Member: 1 This is an Application made by the Applicant under sub-section 2 of Section 114 of the Anti-Discrimination Act 1977 ("the Act") seeking an order that the Respondent pay the legal costs of the Applicant relative to this complaint. 2 On 16 July 2002 the Tribunal brought down its decision in which it found that the Respondent had unlawfully discriminated against the Applicant. In its decision the Tribunal noted that an opportunity should be given to the Applicant, if he so wished, to make an application to the Tribunal for an order for an award of costs and the Tribunal directed that the Applicant make such an application no later than 21 days after the date of publication of its decision. 3 Pursuant to those notations, the Applicant now brings this application. 4 In support of the application Counsel for the Applicant referred to paragraphs 105 to 111 of the Decision. In those paragraphs the Tribunal dealt with the award of compensation which it made in favour of the Applicant in the amount of $40,000.00. In making that award the Tribunal referred to the amount of economic loss which the Applicant demonstrated he had lost as a consequence of the failure of the Respondent to endorse his appointment as an Overseer/Caterer to the St Helliers Correctional Centre. The economic loss far exceeded the amount of $40,000.00. The Tribunal also referred to an award of $15,000.00 which it would make in favour of the Applicant by way of compensation for general damages that he had suffered. Notwithstanding these amounts the Tribunal was constrained by the provisions of Section 113(1)(b)(i) of the Act to limit the amount of its award to $40,000.00. 5 Counsel for the Applicant submitted that it was a relevant factor to be considered by the Tribunal in this application, that the amount of the award of $40,000.00 would be further eroded if the Applicant had to bear payment of the legal costs which he would be obliged to pay to his legal advisers, in relation to the complaint and the hearing before the Tribunal. In a statement exhibited to the Tribunal in this application, the Solicitor for the Applicant estimated that the legal costs of the Applicant were in the vicinity of $15,000.00 to $20,000.00. In addition, Mr Peck has had to pay Counsel's fees in relation to advice and an appearance at an unsuccessful mediation in mid-May 1999 in which the question of costs was reserved. Although Mr Peck was granted Legal Aid after the mediation, as he was successful before the Tribunal in substantiating his claim, the exhibited statement confirms that all costs and disbursements of the Hunter Community Legal Centre incurred on his behalf will be recoverable from Mr Peck and payable from the amount of $40,000.00 awarded to him by the Tribunal. 6 In the view of the Tribunal, if you take into account that the amount awarded to Mr Peck was less than the total amount that would have been awarded to him except for the operation of Section 113(1)(b)(i) of the Act, it is a relevant factor that the amount awarded to Mr Peck will be eroded by the legal costs which he will be obliged to pay out of the award. Although this factor is not solely definitive of the matter, when combined with other factors to which we will refer, the Tribunal is persuaded to make an order for the payment of Mr Peck's costs. 7 In reaching its decision, the Tribunal agrees with the submission of Miss Anderson that the fact that the Respondent is a government department is not a relevant consideration in this application. The application is to be decided on the merits of the justification for the making of an order and is not to be influenced by characteristics of the Respondent: Sivananthan v Commissioner of Police, NSW Police Service [2002]NSW ADT45. 8 The issue of the public interest in the determinations of the Tribunal, in this complaint, is one which needs to be considered. Differing views were offered to the Tribunal by opposing Counsel. Ms Healey for the Applicant emphasised that the Respondent's submissions at the hearing required the Tribunal to reconsider the earlier decision of the Appeal Panel of the Tribunal in the case of Maxwell v Department of Corrective Services [EOD][2001]NSWADTAP21, a decision delivered on 18 July 2001. In that decision the Appeal Panel considered the interaction between the public service legislation and the disability discrimination provisions of the Act. It held that: "public sector employers, like private sector employers, are subject to the device chosen by the legislature to balance the desire of an employer to engage employees who are capable of performing the job, with the right of people to secure employment. Any action taken by a Department Head pursuant to his or her powers in Clause 6 of the 1996 Regulations must be directed and performed in accordance with the laws of general application, including those governing discrimination on the grounds of disability." 9 The Appeal Panel also held that Section 54(1)(b) of the Act did not exclude the actions of the Department Head from the operation of the Act. The Respondent did not bring an appeal against that decision. It nevertheless maintained its defence against the complaint of Mr Peck by seeking to have this Tribunal decline to follow the decision of the Appeal Panel in Maxwell. The complaint of Mr Peck was heard by this Tribunal over a period of 3 days in March 2002. The Tribunal decided that the reasoning of the Appeal Panel on the broad issue of the relationship between the Public Sector legislation and the Act, was correct, and the Tribunal applied that decision to the circumstances of Mr Peck's claim. 10 On the issue of the application of the exception in Section 54(1)(b) of the Act, the Tribunal after some hesitation, and for reasons of comity, followed the decision in Maxwell, and in addition, for other reasons, decided that Section 54(1)(b) did not render the 1988 Regulations under the Public Sector Management Act 1988 decisive in determining the fitness of an applicant for a position in the Department of Corrective Services. 11 The effect of the decisions of the Tribunal is to confirm that persons making decisions in relation to an appointment of a person with disabilities, into positions in the Public Sector, were not governed entirely by the provisions of the Public Sector Management (General) Regulation 1996 (Maxwell case) or the 1988 Regulations (the Peck case), and were obliged by the Act to have regard in a practical sense to whether the disabled applicant was able to meet the inherent requirements of the position. 12 The decision on these issues is of general importance to the Respondent and to other public sector employers. Counsel for the Respondent pointed out that by the date of the hearing of Mr Peck's complaint, the 1988 Regulations had been repealed and the decision of this Tribunal had then no general application. We are not able to assess the merits of Ms Anderson's submission as no details were provided to the Tribunal of the effect of the regulations which now operate. Even if the 1988 Regulations are no longer operative, the confirmation of the principle decided in the Maxwell case of the inter-relationship between the public sector legislation and the Act, remains a general principle and one which it is important to establish, and on the face of the Respondent's challenge to the Maxwell decision in this complaint, was an important issue for this Tribunal to confirm. 13 A third issue raised in Mr Peck's complaint was the question whether under Section 49D(4) of the Act, Mr Peck was able to meet the inherent requirements of the position and that it was an inherent requirement of the position that Mr Peck pass the health assessment made pursuant to Clause 7 of the 1988 Regulations. After reviewing the decisions of other courts and tribunals, this Tribunal determined that the passing of the health assessment was not itself an inherent requirement but one factor to be considered. Again, this issue had a general application in public sector employment. That application may now be overridden by changes to the Public Sector Regulations, so that it is no longer of such general importance. 14 Ms Anderson submitted that legal argument on the three issues raised for the decision of the Tribunal, took up only approximately one day of the hearing, with two days devoted to evidence mainly relating to the medical background of Mr Peck. She argued that the hearing was not unduly prolonged by consideration of the legal issues raised by the Respondent. 15 We consider that it is not appropriate to separate the relative time spent at the hearing and to argue that the legal issues were not the dominant factor to be considered by the Tribunal. In order to understand and determine the legal questions posed to the Tribunal, it was essential for the Tribunal to have a thorough understanding of the factual background to those issues. This is especially the case of the issue of the application of Section 49D(4) of the Act to determine the significance of the medical assessment of Mr Peck and its importance in the Respondent's decision to consider his ability to perform the inherent requirements of the position. 16 The time spent at the hearing in this complaint, was different to the time spent by a Tribunal in a hearing of the usual type of complaint where only issues of fact or mainly issues of fact with straightforward application of the Act to the facts, are involved. This hearing involved contested aspects of medical evidence in the context of the relevance of considerations given by medical experts and by the Respondent in determining the proper application of Section 49D(4) of the Act to the circumstances of Mr Peck's disabilities. Differing views of the effects of Mr Peck's disabilities in the context of his ability to perform the position for which he applied to the Respondent, were held by medical experts and medical boards of review. The Tribunal was required to determine the appropriate application of the Act to these circumstances. 17 Although the Respondent was entitled to raise the issues which it considered were appropriate to the claims of Mr Peck and to contest the factual circumstances of Mr Peck's claims, when considered in the light of the decision of the Respondent to raise again the issues determined in Maxwell, Mr Peck should not have to bear the cost burden flowing from the decision of the Respondent to contest a second time the principles established by the Appeal Panel in that case. Had the Respondent been prepared to apply the principles established in the Maxwell decision to Mr Peck's circumstances, there would have been, in the opinion of the Tribunal, little or no scope for contesting Mr Peck's complaint. The contest in Mr Peck's complaint was not confined to strict issues of law. As the case was run, it included issues arising out of the factual background and the application of that factual background to the legal issues. 18 Section 114 of the Act provides that each party to an inquiry under the Act shall bear his or her own legal costs, except as provided, so far as this application is concerned, by sub-section 2 of Section 114. It is now well established that under sub-section 2 of Section 114, that the Tribunal has discretion where it considers that the circumstances of the case justify it in doing so, to order that the Respondent pay the costs of the Applicant. The Tribunal is constrained to act judicially in the exercise of the discretion. 19 In this complaint, the combined effect of the consequence to Mr Peck of a loss of a substantial portion of the damages awarded to him if he has to bear his legal costs, the public importance of reasserting the principles of the Maxwell decision as to the application of the Act to the employment of persons in the public service and generally in the community, and the other aspects of the manner in which the Respondent has denied the merits of Mr Peck's claims of unlawful discrimination, confirms the view of the majority of the Tribunal that it is justified in finding under Section 114(2) of the Act that the Respondent pay the legal costs incurred by Mr Peck in the making and prosecution of his complaint including the costs of the attempted mediation of the complaint, of the hearing of the complaint and of this application. 20 Accordingly, the Tribunal orders that the Respondent pay such costs to the Applicant in such amount as the parties may agree within 28 days of the date of publication of this decision, and failing agreement by that time, costs are to be assessed pursuant to the Legal Profession Act 1987. Mr A Silva, Member 21 Section 114 of the Act provides that each party to an inquiry under the Act shall bear their own legal expenses, except where special circumstances merit such an award. 22 In my opinion in this case there are no special circumstances that merit such an award of costs. The Respondent employer has a responsibility for safety of all employees and this has to be taken into account when it seeks to employ someone with supervisory responsibilities. Thus the Respondent employer who had a system in place to do the medical assessment is entitled to seek to establish that it had a suitable system in place. 23 Though the Respondent has been found to have breached the Act, its behaviour has not been one that merit any particular criticism. The Respondent is entitled to defend allegations against it and in my opinion has not done anything in the hearing that would give reasons for the Tribunal to award costs against it. 24 I would decline to award costs. 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.