Tannock v Hunter Area Health Service [2000] NSWADT 112

CITATION: Tannock v Hunter Area Health Service [2000] NSWADT 112 DIVISION: Equal Opportunity Division APPLICANT John Tannock PARTIES: RESPONDENT Hunter Area Health Service FILE NUMBER: 58 of 1997; 113 of 1998 HEARING DATES: On the papaers SUBMISSIONS CLOSED: DATE OF DECISION: 08/14/2000

BEFORE: Loukas C - Judicial Member; Luger M - Member; Mooney L - Member APPLICATION: Costs MATTER FOR DECISION: Costs application LEGISLATION CITED : Anti-Discrimination Act 1977 Ohn v Walton (1995) 36 NSWLR 77 Latoudis v Casey (1990) 170 CLR 534 Messiter v Hutchison (1987) 10 NSWLR 525 CASES CITED: Corby District Council v Holst & Co Ltd [1985] 1 WLR 427 Cutts v Head [1984] Ch 290 Kennedy v Maher Holmes Advertising Pty Ltd, EOT, 16/06/98 Anon v Anon EOT 18.7.97 Herring v Benevolent Society of NSW EOT 19.8.92. REPRESENTATION: A Moen, barrister S Winters, barrister ORDERS: 1. Order for costs application by respondent is not granted. No order as to costs

REASONS FOR DECISION BACKGROUND 1 By decision dated 11 May 1999 the Tribunal dismissed the complaints of disability discrimination and victimisation under s111 of the Anti Discrimination Act 1977 (NSW) 2 The respondent now seeks an order for costs against the complainant. The respondent filed submissions on the application for costs on the 19 April 2000 together with an affidavit under the hand of Mr Jeremy James Kennedy on the same date. 3 The complainant filed submissions in relation to costs on the 4 May 2000, together with an affidavit under the hand of Mr John Kerr Tannock on the same date. Additionally on the 14 June 2000, the complainant filed a Judgement of the Compensation Court of the 15 September 1998. RELEVANT LEGISLATIVE PROVISIONS ON COSTS 4 S88 ss(1) Administrative Decisions Tribunal Act 1997 (NSW) provides: "(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". 5 S114 of the Anti-Discrimination Act provides: (1) Except as provided by section 111 (2) and sub-section (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. 6 S111 ss2 of the Anti Discrimination Act provides: (2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry. RESPONDENT'S SUBMISSIONS: 7 The respondent (in summary). (i) submitted that the tribunal has the power to make a costs order under s88(1) of the Administration Decisions Tribunal Act and under s114(2) and s111(2) of the Anti Discrimination Act however s111(2) "appears to be the most appropriate provision for this case". (ii) referred to general principles governing costs and the cases of Ohn v Walton (1995) 36 NSWLR 77, Latoudis v Casey (1990) 170 CLR 534. (iii) in relation to offers of settlement submitted that the complainant was put on notice that the respondent would be seeking costs and offers were made by the respondent which should be taken into account by the Tribunal in the exercise of its discretion in relation to costs. The cases of Messiter v Hutchison (1987) 10 NSWLR 525, Corby District Council v Holst & Co Ltd [1985] 1 WLR 427 Cutts v Head [1984] Ch 290 Kennedy v Maher Holmes Advertising Pty Ltd, EOT, 16/06/98 were referred to. (iv) submitted that the legislation generally provides that each party pay his or her own costs unless there are circumstances which justify an order for costs. Further the respondent submitted that a number of circumstances distinguish this case from the norm and outlined the following matters: a. The complainant rejected reasonable offers of settlement. b. The evidence indicates that the Complainant's own behaviour encouraged some of the conduct he subsequently alleged was discrimination or victimisation. c. The Complainant appears to have attempted to construct a case of discrimination, by collecting or creating evidence in circumstances where there was no basis for his allegations. d. By his own past unsavoury conduct, the Complainant fostered and encouraged a work place environment where practical jokes and peculiar form of humour were regarded as normal. e. The Respondent through its employees made more than reasonable efforts to re-integrate the Complainant back into its work force following his injury and complaints against his former colleagues, but the Complainant's behaviour and expectations ultimately caused those efforts to fail. f. The Complainant gave evidence relevant to the proceedings which the Tribunal found to be implausible. g. The Complainant attempted to attribute various acts or words to his disability or to the fact that he had made a complaint of discrimination, when there was no basis for such association. h. The Complainant failed to appreciate or accept that his own behaviour towards his former colleagues had any bearing on their conduct towards him. COMPLAINANT'S SUBMISSIONS 8 The complainant submitted (in summary) that: (i) The cases cited by the respondent: Kennedy v Maher & Holmes Advertising, Ohn v Walton Latoudis v Casey Messiter v Hutchinson Cutts v Head are all distinguishable from the present case. (ii) The legislative Scheme of the Anti Discrimination Act "creates a presumption that all parties to contested proceedings will pay their own costs, regardless of whether they win or lose." (iii) the Tribunal did not find Mr Tannock's complaints to be frivolous, vexatious or misconceived. (iv) the complainant did not conduct the matter in an unreasonable or improper manner nor initiate these proceedings without reasonable cause or in bad faith. THE LAW 9 It is settled law that the Tribunal has a discretion under the Anti Discrimination Act to order costs against a party though the statutory regime provides that in what might be termed the normal course each party pays his or her own costs of the proceedings - section 114(1) and (2) of the Anti-Discrimination Act. Anon v Anon EOT 18.7.97. 10 S111(2) Anti Discrimination Act provides a discretion: "where the Tribunal dismisses a complaint under this section it may order the complainant to pay the costs of the inquiry". There is no presumption in s111(2) in favour of a costs order against an unsuccessful complainant. The Tribunal has a discretion in the exercise of this power Herring v Benevolent Society of NSW EOT 19.8.92. 11 It is well accepted that a primary purpose of the Act is to protect human rights and that that purpose may be thwarted if complainants were discouraged from pursuing claims before the Tribunal due to a fear of the amounts that may be awarded against them for, inter alia, legal costs if unsuccessful on those claims, Anon v Anon EOT 18.7.97. APPLICATION UNDER s111 ANTI-DISCRIMINATION ACT 12 The s111 application was made in this case at a point where the complainant had called all evidence in relation to liability for both the disability discrimination complaint and the victimisation complaint. 13 The Tribunal found that: "insufficient evidence has been provided to substantiate the complaints and accordingly dismisses the complaints under s111. The Tribunal does not conclude that the claims ought to be dismissed as frivolous, vexatious or misconceived. Having regard to the Tribunal's findings on the evidence, the Tribunal has determined that it would not be just to the Respondents to require them to have to go to the expense of leading further evidence by way of reply." 14 Additionally the Tribunal found that: "This is a sad case. It is clear that the Complainant feels aggrieved by the events that have occurred. It is also clear that Mr Tannock believes that he has been subject to discrimination. The evidence, however, which was presented to the Tribunal is not sufficient to enable the Tribunal to be satisfied on the balance of possibilities that acts of disability discrimination and victimisation against Mr Tannock took place within the parameters of the Anti-Discrimination Act ." "The beliefs of the Complainant, however sincerely held, do not alone provide sufficient evidence for his claims." CONCLUSIONS AND FINDINGS 15 The complainant's case was not dismissed by the Tribunal as frivolous, vexatious or misconceived. 16 There is no evidence to suggest the complainant initiated these proceedings without reasonable cause or in bad faith. Additionally the Tribunal found Mr Tannock believed he had been subject to discrimination. Further it is clear from Mr Tannock's affidavit sworn 4 May 2000 that he received legal advice and was represented at all relevant stages. 17 The cases of: Kennedy v Maher & Holmes Advertising Ohn v Walton Latoudis v Casey Messiter v Hutchinson Cutts v Head are all distinguishable on their facts from the present case. This Tribunal concurs with the complainant's submissions in this regard. 18 The Tribunal in the exercise of the relevant discretion under s111 ss2 of the Anti Discrimination Act is not satisfied that the matters outlined by the respondent as "distinguishing this case from the norm" do so distinguish the matter or operate so as to activate the Tribunal's discretion in the matter of costs in favour of the respondent. Similarly the Tribunal in the exercise of the discretion under s114 of the Anti Discrimination Act is not satisfied that the matters outlined by the respondent as "distinguishing this case from the norm" do so distinguish the matter or operate so as to activate the Tribunal's discretion in the matter of costs in favour of the respondent. Nor is the Tribunal satisfied there are "special circumstances" under s88 ss1 of the Administrative Decisions Tribunal Act. 19 For the foregoing reasons this Tribunal declines to make the order sought by the respondent. DECISION 20 No order as to costs.