Murtough v New South Wales Bar Association [2008] NSWADT 166

CITATION: Murtough v New South Wales Bar Association [2008] NSWADT 166

DIVISION: Equal Opportunity Division

APPLICANT Christopher Murtough PARTIES: RESPONDENT Council of the New South Wales Bar Association

FILE NUMBER: 071048, 071061, 071071

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 14 January 2008

DATE OF DECISION: 10 June 2008

BEFORE: Britton A - Deputy President

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Legal Profession Act 2004

Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 CASES CITED: Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 Tu v University of Sydney (No 2) [2002] NSWADTAP 25

APPLICANT No appearance REPRESENTATION: RESPONDENT C Ronalds SC, barrister

The applicant to pay the respondent's costs thrown away by the respondent in: ORDERS: (i) complying with the directions made on 12 July 2007 (except in relation to the Summons for production of documents) (ii) in respect of the directions hearing of 31 July 2007 and in complying with the directions made at that hearing (iii) in respect of the directions hearing of 3 December 2007.

REASONS FOR DECISION 1 In December of last year, the Tribunal dismissed three complaints that had been lodged with the Anti-Discrimination Board by Mr Christopher Murtough against the New South Wales Bar Association on the ground that the proceedings were subject to a want of prosecution (section 107(1)(b) of the Anti-Discrimination Act 1977 ('the Act')). 2 Following that decision, the Bar Association made an application for costs. On 3 December 2007 the Tribunal directed both parties to provide written submissions in relation to the Bar Association's application and a timetable was set. Written submissions have been provided by the Bar Association; none have been received from Mr Murtough. 3 Both parties have been notified that the Tribunal intended to determine the matter 'on the papers' (section 76 of the Administrative Decisions Tribunal Act 1997 ('Tribunal Act')). I am satisfied that Mr Murtough was notified of the Bar Association's application and the directions made on 3 December 2007 and has had a reasonable opportunity to respond. Accordingly I have decided to proceed to determine the Association's application notwithstanding the fact that no submissions have been received from Mr Murtough. Background to Mr Murtough's complaints 4 It is necessary to sketch in the background to the initiating complaints. 5 Complaint to the Anti-Discrimination Board. Mr Murtough was admitted as a barrister in New South Wales in 1978. In 2005, after returning from practising overseas, he was granted a 'local practising certificate' by the New South Wales Bar Association (section 41(2) of the Legal Profession Act 2004). 6 In March 2007, Mr Murtough lodged the first of three complaints alleging unlawful disability discrimination against the Bar Association ('the first complaint'). Section 49 L of the Act makes it unlawful for a 'qualifying body', that is, a body empowered to confer, renew or extend an authorisation needed for the practice of a profession, to discriminate against a person on the ground of disability by refusing or failing to confer, renew or extend the authorisation. The focus of Mr Murtough's complaint was the decision in February 2006 to suspend his practising certificate and, its subsequent decision, to refuse his application for its re-issue. (That decision was taken by the Bar Council of New South Wales, the executive committee of the Bar Association empowered to grant and revoke practising certificates - see Part 2.4 of the Legal Profession Act 2004 and clause 14 of the Constitution of the New South Wales Bar Association.) 7 In addition, Mr Murtough complained that: … The Bar Association has further discriminated against me as compared with other members of the Bar in good standing in that I am compelled to deal with the CEO by mail/email and no else except for the Chief Librarian … 8 That complaint was referred to the Tribunal on 30 April 2007. 9 Mr Murtough made a further complaint to the Board on 29 May 2007 ('the second complaint'). It concerned the alleged refusal of the Bar Association to refuse to grant him a practising certificate throughout the period following the lodgement of the first complaint. 10 A third complaint was lodged on 6 June 2007. It concerned the circumstances surrounding the decision of the Bar Council to obtain a medical opinion about Mr Murtough's fitness to practice. Among other things, Mr Murtough alleged that the medical practitioners, to whom he had been referred for assessment, had been provided with 'inappropriate, prejudicial and highly selective' material. 11 Proceedings before the ADT. Mr Murtough's first complaint was referred to the Tribunal by the President of the Anti-Discrimination Board on 30 April 2007. A Case Conference was held on 28 May 2007. At that conference, on Mr Murtough's request, a hearing was set down for 7 June 2007 to consider an urgent application made by him for interim orders. 12 On 29 May 2007, Mr Murtough, applied to the Tribunal for a Summons for the production of documents to be issued to the Bar Association. The Tribunal advised Mr Murtough to seek informal resolution of the issues relating to the Summons. On 4 June 2007, the Bar Association wrote to Mr Murtough advising that it would not agree to produce the requested documents detailing its objections. 13 The day before the hearing listed to determine the application for interim orders, Mr Murtough emailed the Tribunal suggesting that the hearing be vacated and listed for a date in mid-July. This, he suggested, would allow the Tribunal to determine his application after the date the Bar Association, on his account, was obliged, as a 'matter of law', to determine his most recent application for a practising certificate. With the consent of the Bar Association the hearing was vacated. 14 Subsequently a Case Conference was listed for 12 July 2007. At that Conference, Mr Murtough urged the Tribunal to set a 'tight timetable' to determine his application for interim orders. That application was listed for hearing on 31 July 2007. Directions were made requiring Mr Murtough to file and serve: (a) An amended list of documents sought under a summons to produce by 17 July 2007 (b) An application for interim relief (to include the orders sought) by 17 July 2007 (c) An amended points of claim with respect to the first complaint, the second complaint and the third complaint and all evidence upon which the applicant sought to rely by 19 July 2007. 15 Mr Murtough did not comply with these directions. 16 On the application of the Bar Association, the hearing listed for 31 July 2007, was vacated on the grounds of Mr Murtough's non-compliance with the directions set out above. At a subsequent directions hearing, consent orders were entered which, among other things, required Mr Murtough to file and serve Points of Claim and evidence before 30 November 2007. The matter was listed for a further directions hearing on 3 December 2007. The Tribunal informed Mr Murtough that, if he failed to file the required material by 30 November 2007, it would, of its own motion, consider dismissing his complaint for want of prosecution. 17 Mr Murtough failed to file and serve any material. Nor did he attend the 3 December 2007 directions hearing. Counsel for the Bar Association advised the Tribunal that Mr Murtough had contacted the Association an hour before the hearing seeking its consent to the proceedings being stood over until June 2008. Mr Murtough did not contact the Tribunal. 18 Following oral submissions on behalf of the Bar Association, the Tribunal dismissed Mr Murtough's three complaints for want of prosecution. 19 The Bar Association applies for the costs of these proceedings. Principles relating to costs in the ADT 20 Section 110(1) of the Act provides that each party to an inquiry shall pay his or her own costs. However, section 110(2) grants the Tribunal power to 'make such orders as it thinks fit' where it is 'of the opinion in a particular case that there are circumstances that justify it doing so'. 21 The relevant principles in relation to an application for costs bought under section 110 of the Act were set out by the Appeal Panel in Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 at [42]: (1) section 110 creates a presumption that each party will pay his or her own costs and a discretion to award costs: Cleary Bros (Bombo) Pty Ltd -v Cvetkovski (EOD) [2001] NSWADTAP 10 at paragraphs 63-65; (2) this discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made; (3) previous cases relating to costs can only provide an indication of the kinds of circumstances that may attract a costs order; (4) as a general proposition, a combination of circumstances is required in order to justify an award of costs. See, for example, Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No.2) NSWADT 252; Peck v Commissioner of Corrective Services (No. 2) [2002] NSWADT 244; V v Y & Anor; X v Y & Anor [2002] NSWADT 7; Duggan v Shore Inn Pty Limited (1993) EOC 92-483; Willis v State Rail Authority of New South Wales (No. 3) (1992) EOC 92-456; Holdaway v Qantas Airways Limited (1992) EOC 92-430; Squires v Qantas Airways Ltd (1985) EOC 92-135. In combination with other factors, the kinds of circumstances which have been regarded in previous cases as justifying an award of costs against an applicant include: (i) the manner in which the applicant has conducted the proceedings, in particular whether the proceedings were vexatious (ii) whether the proceedings determine or clarify an important question of law (iii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and (iv) where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success. 22 The Appeal Panel in Tu v University of Sydney (No 2) [2002] NSWADTAP 25 observed at [42] that: The sanction of a full costs order against a complainant tends to be reserved for cases where an abuse of process is seen as having been involved, that is, those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith. 23 The Tribunal Act contains the following provision on costs: 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' [emphasis added] 24 Practice Note 12, re-issued on 11 May 2005, deals with costs and sets out the following examples of 'special circumstances' which may warrant an order for costs under section 88 of the Tribunal Act: whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse (ii) failing to comply with this Act, the regulations, the rules or an enabling enactment (iii) asking for an adjournment as a result of (i) or (ii) (iv) causing an adjournment (v) attempting to deceive another party or the Tribunal (vi) vexatiously conducting the proceeding (vii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding (viii) 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. Bar Association's application 25 The Bar Association seeks an order for all costs incurred in these proceedings. It points out that Mr Murtough was on notice that it reserved the right to make such application. It contends that the manner in which Mr Murtough conducted the proceedings was unreasonable and by way of example cites his: Repeated failure to comply with directions or provide an explanation for not doing so; Common practice of making voluminous duplicate requests for 'urgent' information; Repeated requests for further particulars of the Bar Association's defence, at a time where it had not been directed by the Tribunal to do so; Repeated requests for meetings with officers of the Bar Association and its legal representatives. 26 The Bar Association contended that it incurred significant costs in connection with preparing submissions and affidavit evidence to meet with Mr Murtough's urgent application for interim relief, which he abandoned at short notice. It also claimed that it had incurred significant costs in responding to Mr Murtough's request for a summons for the production of a wide class of documents many of which, it asserted, were irrelevant to these proceedings. Decision 27 The issue to be determined is whether the circumstances of this case warrant a departure from the presumption enshrined in section 110 of the Act that in this jurisdiction each party will bear its own costs. That presumption ought not to be disturbed without good cause. A determination of the question whether costs should be awarded requires a balance to be struck between the "chilling effect" of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings. 28 In my view it is abundantly plain that, in this case, circumstances have arisen that justify an order for costs for the following reasons. 29 First, as a general principle, tribunals exercising jurisdiction where parties are by statute protected from the usual costs consequences of litigating must be careful to ensure that parties do not abuse this statutory privilege by acting unreasonably, unfairly or oppressively towards their opponents. Whether a party's conduct of proceedings is unreasonable, unfair or oppressive will be assessed objectively rather than subjectively. 30 Second, as remarked above, a pattern emerged in Mr Murtough's conduct of the proceedings in the Tribunal of his making repeated unexplained defaults in complying with directions, which had at times been made at his own request; a multiplication of requests for 'urgent' information, the special urgency of which was not apparent but which required those dealing with them on behalf of the Bar Association to divert their attention to them, incurring costs as a result; and repeated undirected requests for further and better particulars of the defence. 31 Legal costs quickly burgeon when parties engage in unnecessary or unreasonable 'paper wars'. In a jurisdiction where costs are not generally recoverable by the successful party, parties and their advisers must be conscious of the need, in fairness, to conduct their litigation with maximum practical efficiency and leanness because of the potentially oppressive effect of repeated or unnecessary interlocutory applications or unreasonably demanding correspondence between them. 32 Once it is demonstrated that 'there are circumstances that justify' the Tribunal making an order for costs, the Tribunal has a wide and unfettered discretion and may 'make such orders as it thinks fit'. In my view, it would be counter to the general policy of the Act for costs to be awarded in this case for the whole of the proceedings. Although Mr Murtough's application was dismissed for want of prosecution, there has been no hearing on the merits. Whether this was a hopeless case is impossible to tell and would be, in any event, inappropriate to comment on. There is nothing to suggest that the proceedings constituted an abuse of process or that Mr Murtough deliberately misconducted himself for an ulterior motive. It is not clear to the Tribunal why Mr Murtough did not appear when required, nor why he failed to comply with directions. It is possible that these defaults were occasioned by illness or misadventure or a combination of factors. Given the importance he evidently attached to the proceedings, for obvious reason as his career as a barrister was at stake, his failure to maintain them is surprising. 33 He was entitled, when prosecuting his application, to request that summonses be issued to the respondent. Notwithstanding the ultimate dismissal of the proceedings, given the general statutory protection against costs orders, I am not persuaded that an order ought be made in respect of the costs associated with the summons. 34 On the other hand, Mr Murtough, at the Case Conference on 12 July 2007, urged the Tribunal set a tight timetable for exchange of evidence and submissions to bring forward his claim for interim relief as quickly as possible. He then failed to comply with the very directions that he had urged on the Tribunal, thereby causing the vacation of the hearing listed for 31 July. It is therefore appropriate that he should pay the costs thrown away as a result of that vacation. 35 A directions hearing was then listed for 31 July 2007 and fresh orders were made. Given that Mr Murtough failed to comply with those orders, it is appropriate to order that he pay the costs of that directions hearing, as the work done by the respondent was, in the result, wasted. Those costs should include the costs of preparation for the hearing and the costs of the appearances. It is also appropriate that Mr Murtough, therefore, pay the costs thrown away by the respondent in complying with the directions made at the hearing of 31 July. 36 The final directions hearing listed on 3 December, at which Mr Murtough failed to appear, was also, from the respondent's and the Tribunal's perspectives, a waste of time and money except for the fact that the proceedings were dismissed. It is appropriate to order that Mr Murtough pay the costs thrown away by the respondent in relation to that hearing, including the costs of the preparation and appearances. Orders The applicant to pay the respondent's costs thrown away by the respondent in: (i) complying with the directions made on 12 July 2007 (except in relation to the Summons for production of documents) (ii) in respect of the directions hearing of 31 July 2007 and in complying with the directions made at that hearing; and (iii) in respect of the directions hearing of 3 December 2007.