Fainstein v University of New South Wales and Professor Piggott [2004] NSWADT 26

CITATION: Fainstein v University of New South Wales and Professor Piggott [2004] NSWADT 26 DIVISION: Equal Opportunity Division APPLICANT Marat Fainstein PARTIES: FIRST RESPONDENT University of New South Wales SECOND RESPONDENT Professor Piggott FILE NUMBER: 031027 HEARING DATES: On the papers SUBMISSIONS CLOSED: 10/13/2003 DATE OF DECISION: 02/10/2004

BEFORE: Ireland G - Judicial Member; Antonios Z - Member; Cox R - Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person FIRST & SECOND RESPONDENT J Oakley, barrister ORDERS: Application for costs not granted

1 This is an application made by the respondent for an order for costs. The application is made following an order made by the Tribunal on 27 August 2003. The Tribunal directed that the complaint of the applicant against the respondents be dismissed under s 111(1) of the Anti-Discrimination Act 1977 (the Act) as the complaint was lacking in substance. 2 On 27 August 2003, on the third day of the hearing of the inquiry into the complaint of the applicant, the respondent made an application for dismissal of the complaint under s 111(1). That application was made at the conclusion of the case presented by the applicant. The case for the applicant comprised evidence before the Tribunal given by the applicant and by Dr Hill, the co-ordinator of the Higher Degree Courses at the respondent University, a copy of the report of the President of the Anti-Discrimination Board to the Tribunal, and documents exhibited to the Tribunal by the applicant. 3 The decision of the Tribunal to dismiss the complaint, found that the evidence of the applicant was insufficient to satisfy the Tribunal that it should infer that the respondent University had rejected his application for enrolment in the course of Doctor Philosophy-Economics on the ground that the applicant had brought actions under the Act against the University and had made allegations of a breach of the Act, and thereby the applicant had been victimised by the University in breach of s 50 of the Act. 4 In reaching its decision the Tribunal accepted the evidence of Dr Hill who denied that at the time he recommended the rejection of the applicant's application for enrolment, he was aware that the applicant had brought an action against the University relating to a claim of discrimination against the applicant or that the applicant had made allegations claiming that he had been vilified by a student, an employee of the University. Dr Hill gave evidence before the Tribunal at the request of the applicant. 5 The respondent made an application for an order for costs, following the ex tempore decision delivered by the Tribunal on 27 August 2003. The Tribunal directed that the parties file written submissions relating to that application. Those written submissions concluded on 13 October 2003. 6 The submissions of the applicant, opposing the application, comprised written submissions responding to the written submissions of the respondent and an affidavit of the applicant in which the applicant made observations and statements regarding the factual matters the subject of the Tribunal's decision. The respondent submitted that the Tribunal should disregard the statements in the applicant's affidavit as there was no evidence led during the hearing of the matters referred to in those paragraphs. Without analysing in detail the various matters raised by the applicant in the affidavit filed with the Tribunal on 1 October 2003, the Tribunal agrees with the respondent's comment that it was not appropriate, in an application for costs, for the applicant to raise by way of evidence, additional matters not previously the subject of evidence given at the hearing of the inquiry. The Tribunal accordingly has not taken into consideration, in this application, the matters the subject of that affidavit. The Tribunal has considered only the written submissions contained in the document filed by the applicant with the Tribunal on 1 October 2003 headed 'Cost Application Response'. 7 The complaint originally lodged by the applicant with the Anti-Discrimination Board contained allegations against both the respondent University and against Professor Piggott. The applicant maintained the allegations against Professor Piggott until just before the hearing of the inquiry. At that time the applicant informed the respondent that he was not proceeding with a complaint against Professor Piggott and on the first day of hearing the applicant withdrew that complaint. The Tribunal directed that the complaint against Professor Piggott be dismissed. 8 The respondent submitted that the order for costs in favour of the respondent should be made for the following reasons: · the President of the Anti-Discrimination Board declined the complaint as lacking in substance; · the complainant requested that the matter be referred to the Tribunal notwithstanding this determination and notwithstanding that full details of the reasons for the University's decision were provided to him; · the complainant has previously brought unsuccessful proceedings against the University and its associated entities (Z -v- University of A (No 2) [2001] NSW ADT 138, unsuccessfully appealed to the Appeal Panel, Fainstein -v- AGSM [2003] NSWADT 9/7/03 dismissed pursuant to s 111); · this complaint was dismissed by the Tribunal under s 111 of the Act; · the Tribunal made adverse findings on the complainant's credit; · the complainant's evidence was inconsistent and contrived eg he gave conflicting evidence as to whether his application should have been considered as a new application or an application to continue, he gave at least 3 different and inconsistent versions of his conversation with Dr Otto, he inconsistently maintained that his post 1997 experience should be taken into account in considering his application but not his 1997 results, he overstated his post 1997 experience to the point of dishonesty; · the complainant sought to obtain an advantage by making this complaint in that he sought an order from the Tribunal that he be admitted as a PhD candidate although the University had rejected his application on the ground of his poor past performance; · the complainant nowhere indicated a genuine belief that the rejection of his application was in any way connected with his allegations of vilification against Ms Tan or allegations of discrimination against anyone else. 9 The application for costs by the respondent is made under s 111(2) of the Act which provides: '(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.' This section may be contrasted with the provisions of s 114 of the Act. Section 114 operates generally to a determination of costs arising out of the hearing of an inquiry into a complaint under the Act. Section 114 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 and security for costs, whether by way of interim order or otherwise, as it thinks fit.' 10 The difference in the wording of s 111(2) and s 114(1) and (2), demonstrate that s 111(2) establishes a wider discretion in the Tribunal to make an award for costs where a complaint is dismissed under s 111(1) of the Act, than is the discretion provided to the Tribunal by the operation of subsections (1) and (2) of s 114 of the Act. Under s 114, the Tribunal can make an order for costs against an unsuccessful party only where the Tribunal is of the opinion that in the particular case there are circumstances that justify it in doing so. In this case the discretion must be exercised judicially and the Tribunal has laid down various factors which is considered appropriate to take into account in exercising its discretion under that section. It is the view of the Tribunal that under s 111(2) of the Act the Tribunal has a broader discretion, than the discretion contained in s 114, to make an order for costs in favour of a successful party. However, the exercise of a discretion by a judicial body, must be exercised in a judicial manner and must be based on reasons that are expressed and be based on the question whether in the circumstances of the complaint, the merits of the complaint, and the manner in which the parties have presented their respective positions to the Tribunal, it is just and reasonable that one party should be ordered to pay the costs of the other party. 11 In seeking an order for costs against the applicant, the respondent has submitted a number of factors that could justify the Tribunal in making an order for costs in its favour. The fact that the applicant requested the referral of his complaint for determination by the Tribunal not withstanding that the Anti-Discrimination Board had declined the complaint as lacking in substance, is a factor to be considered in this application. The weight of this factor has to be balanced by the right granted to a complainant under the Act to make such a request notwithstanding the declination of the complaint by the Board. The making of a request by an applicant with the result that ultimately the Tribunal and the respondent to the complaint after hearing the evidence of the applicant, determines that the complaint lacks substance and in effect confirms the view of the Board, can not be a sole determinate factor in an application for costs. If it were to be held as a sole factor in making an order for costs against an unsuccessful applicant, the right given by the Act for an applicant to request a referral of a matter to the Tribunal would operate as a deterrent on an applicant against exercising that right. The fact that the complainant has previously brought unsuccessful proceedings against the respondent University and others is not a matter about which evidence was before the Tribunal and even if it were in evidence, it is again not a factor that the Tribunal considers should be given particular weight. To do so, would again act as a deterrent against a complainant pursuing remedies under the Act where the complainant has been unsuccessful in other proceedings. 12 The crux of the application by the respondent relies on the submission that the Tribunal made adverse findings on the complainant's credit. The respondent illustrates that submission by reference to 3 items where such inconsistency in the complainant's evidence arose in the hearing. Without traversing each of the 3 instances illustrated by the respondent, it is the view of the Tribunal that although the matters raised by the respondent are matters which contributed to the Tribunal's finding that the applicant's complaint lacked substance, the extent of the adverse findings against the applicant's credit were not such that the applicant should be penalised by the making of an order for costs against him. 13 The applicant at all times was unrepresented. He lacks legal background. He nonetheless, presented his position to the Tribunal in an efficient manner. He established by the evidence presented to the Tribunal and by the admissions of the respondent, that the elements necessary to support his complaint of victimisation under s 50 of the Act were present in his complaint. He failed in establishing his complaint by being unable to satisfy the Tribunal that the evidence was capable of establishing that the rejection of his application for enrolment with the respondent University which he made in July 2001, was on the ground that he had brought actions relating to discrimination against the University or that he had made allegations of vilification against him in contravention of the Act. To establish that aspect of his complaint he required the Tribunal to infer from the evidence and the material before the Tribunal that there was a causal link between the rejection of his application and the actions and allegations that he had made concerning contraventions of the Act by the University and others. The Tribunal found that the evidence did not support the inferences that the applicant sought the Tribunal to draw. 14 In coming to its decision the Tribunal was influenced by the inconsistencies in aspects of the evidence, of the nature referred to by the respondent in its submissions on this application. In the view of the Tribunal, those inconsistencies were only part of the matters which influenced it in reaching its conclusion that the applicant's evidence did not support the inferences that he was seeking to be drawn. The inability of the applicant to satisfy the Tribunal, after taking into account the types of inconsistencies referred to by the respondent, does not, in the view of the Tribunal, constitute such a degree of lack of merit in the complaint that would require the Tribunal to exercise its discretion under s 111(2) of the Act and to make an order that the applicant pay the costs of the respondent arising out of the inquiry. 15 Accordingly the Tribunal determines that the application by the respondent under s 111(2) of the Act for an order that the applicant pays its costs of the inquiry, be not granted.