CITATION: O'Sullivan v Health Care Complaints Commission (No 2) [2010] NSWADT 190 DIVISION: Equal Opportunity Division APPLICANT Brendan Thomas O'Sullivan PARTIES: FIRST RESPONDENT Health Care Complaints Commission SECOND RESPONDENT Kieran Pehm FILE NUMBER: 091056 HEARING DATES: On the papers SUBMISSIONS CLOSED: 8 July 2010 DATE OF DECISION: 28 July 2010 BEFORE: Chesterman M - Deputy President CATCHWORDS: Costs – complaint of discrimination LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Calderbank v Calderbank [1975] 3 All ER 333 CASES CITED: O'Sullivan v NSW Medical Board [2010] NSWADT 75 O'Sullivan v Pehm [2010] NSWADT 57 APPLICANT C Donnelly, solicitor REPRESENTATION: RESPONDENT J Oakley, barrister ORDERS: 1. The Applicant is to pay the Respondents' costs of attendance at the Tribunal hearing on 22 February 2010 2. Except as stated in Order 1, the Respondents' applications for costs, as outlined in paragraph [3] of these reasons, are dismissed. REASONS FOR DECISION The Respondents' costs applications 1 In these proceedings, the Applicant is Dr Brendan O'Sullivan and the two Respondents are the Health Care Complaints Commission ('the HCCC') and its Chief Executive Officer, Mr Kieran Pehm. The Applicant complains that the Respondents unlawfully discriminated against him by virtue of conduct occurring during 2008. He seeks damages and other remedies under the Anti-Discrimination Act 1977 ('the AD Act'). 2 It is not necessary in the present decision to discuss substantive aspects of the Applicant's complaint of unlawful discrimination. 3 This decision relates to applications by the two Respondents for orders that the Applicant pay the following costs incurred by them in somewhat unusual circumstances:- (a) Their costs thrown away by reason of the adjournment of a hearing set down to commence on 11 December 2009. (b) Their costs of an application ('the consolidation application') made by the Applicant for the hearing of this complaint to take place concurrently with the hearing of two other complaints under the AD Act that he filed in the Tribunal. 4 During the initial stages of the hearing on 11 December 2009, the Tribunal was constituted by myself (presiding), Non-judicial Member Antonios and Non-judicial Member Hiffernan. Pursuant to section 24A of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), it was constituted by myself sitting alone for the remainder of this hearing (the reasons for the change in constitution are outlined below) and for hearings on 22 and 23 February 2010 at which the consolidation application was considered. 5 These applications for costs were made by Ms Janet Oakley of counsel at the hearings on 11 December 2009, 22 February 2010 and 23 February 2010. On the first and third of these days, she put forward brief oral submissions in support of her applications. 6 In the period preceding the first of these hearings, but not at that hearing, Mr Robert Eaves, solicitor, acted for the Applicant. At the second and third of these hearings, Mr Eaves again acted for him. 7 Pursuant to directions given at the relevant hearings, as varied at a hearing on 30 March 2010, submissions in support of the Respondents' costs applications were filed on 13 April 2010. Although these directions required that submissions in response should be filed by 27 April, this was not done. On that day, Mr Eaves filed a notice of ceasing to act. On 24 May, Ms Colleen Donnelly, solicitor, notified the Tribunal that she represented the Applicant. On 8 July, after the Registry had sent a letter to her indicating that submissions on this matter were long overdue, she filed submissions opposing the costs applications. 8 The hearing of this complaint by the Applicant against the two Respondents has not yet come to an end. But it is appropriate that these costs applications should now be determined. The reasons are (a) that a wholly new Panel was constituted to take over the proceedings immediately after the hearing of 30 March 2010 and (b) that the issues to be resolved in determining whether costs should be awarded are separate from any other costs issues that have arisen or are likely to arise in the proceedings. 9 The Respondents have also applied for a costs order relating to an application heard and determined on 30 March 2010. It was an application for an adjournment, made by the Applicant on the ground that Mr Eaves was unwell. The application was successful. 10 On that day, 30 March 2010, the Tribunal Panel had a different membership to that of the Panel at the times of relevance to this decision and to that of the Panel as subsequently constituted. The costs application relating to the hearing on 30 March 2010 is therefore the subject of a separate decision ('the separate costs decision'), which will be published simultaneously with this decision. Relevant legislation 11 By virtue of section 110 of the AD Act, awards of costs in Tribunal proceedings under this Act are governed by section 88 of the ADT Act. So far as is relevant here, section 88 provides:- (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) 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 it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or… (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,… (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. 12 In the separate costs decision at [26 – 28], some observations are made about the interpretation and application of these provisions within section 88. It is not necessary to repeat those observations here. THE COSTS OF THE ADJOURNMENT ON 22 DECEMBER 2009 The circumstances of the adjournment 13 At a case conference on 30 September 2009, the Applicant's complaint was set down for a hearing on the merits on 11 and 14 December 2009. In addition, the Applicant was directed (a) either to amend his Points of Claim by deleting references to a specified medical report or to file a copy of this report and (b) to file and serve additional evidence by 21 October 2009. The Respondents were directed to file and serve their evidence by 11 November 2009. 14 As pointed out in letters from the Crown Solicitor to Mr Eaves dated 16 and 23 October 2009, the Applicant did not comply with these directions. 15 On 11 November 2009, the Respondents filed their evidence, which they served with a covering letter on Mr Eaves. 16 In a letter dated 3 December 2009, the Crown Solicitor notified Mr Eaves that the Applicant would be required for cross-examination at the hearing. 17 At 4.10 p.m. on 10 December 2009, the Applicant, who at that time resided in Queensland, faxed a letter to the Registrar of the Tribunal requesting that the hearing fixed to commence on the following day at 10 a.m. should be adjourned. In addition to mentioning 'current Medical Tribunal hearings', he raised two matters in support of this request. 18 The first concerned an earlier complaint by him under the AD Act (file 081112) against the HCCC and Mr Pehm – i.e., the two Respondents in these proceedings – and an employee of the HCCC, Ms Karen Mobbs, as a further respondent. At this stage, the Tribunal had heard (on 24 August 2009), but had not determined, an application by the three respondents for the complaint to be dismissed summarily. In his letter of 10 December 2009 to the Registry, the Applicant argued that in the event that this application for dismissal was rejected, this earlier complaint (hereafter 'the first HCCC complaint') and the complaint with which the present proceedings are concerned ('the present complaint') should be heard together. He maintained that this would reduce costs and inconvenience to witnesses and would make 'considerable sense all round'. 19 Secondly, the Applicant stated that he was suffering from an injury, sustained some weeks earlier, that would make it 'very difficult and painful' for him to fly down to Sydney. He provided some information about this injury, indicating that he had hoped to be able to fly but had since realised that it would be too difficult and that it raised safety issues. He added that he could be contacted by telephone and gave appropriate telephone numbers. 20 The Applicant did not transmit a copy of this faxed letter to the Crown Solicitor. 21 At the hearing on 11 December 2009, there was no appearance by or on behalf of the Applicant. The Panel convened to conduct the hearing (comprising myself, Non-judicial Member Antonios and Non-judicial Member Hiffernan) advised Ms Oakley and her instructing solicitor of the contents of the Applicant's faxed letter to the Registrar. The Panel then made contact with the Applicant at one of the telephone numbers furnished by him. He indicated that he had not travelled to Sydney. Thereafter, he appeared at the hearing by telephone. 22 Ms Antonios then stated that by virtue of past contact between herself and the Second Respondent (Mr Pehm) she considered that she should disqualify herself on the ground of apprehended bias unless all parties consented to her remaining on the Panel. She outlined the nature of her contact with Mr Pehm. After consideration, the Applicant stated that he did not wish to give such consent. 23 Ms Antonios accordingly retired from the Panel. For the remainder of the hearing on 11 December 2009, the Tribunal was constituted by myself, sitting alone. 24 I ordered that the hearing on the merits set down for 11 and 14 December 2009 should be adjourned. I set the matter down for a case conference on 3 February 2010 and gave directions regarding the filing of further evidence. 25 During this stage of the hearing, Ms Oakley applied on behalf of the Respondents for the costs thrown away by reason of the adjournment. She tendered certain material, which I admitted, and addressed me briefly on this application. The Applicant indicated that he was not in a position to make submissions in response. I then gave directions, as mentioned above at [7], for written submissions on the matter to be filed and served. The parties' submissions 26 The material admitted on Ms Oakley's tender comprised copies of the letters dated 16 October, 23 October, 11 November and 3 December 2009 from the Crown Solicitor to Mr Eaves (see [14 – 16] above), together with a copy of an email dated 22 September 2009 from the Applicant to a solicitor employed in the Office of the Crown Solicitor who had previously acted in this matter. In that email, the Applicant criticised alleged 'lateness' in the filing of a response to his Points of Claim 27 Ms Oakley argued that the Applicant should be ordered to pay the Respondents' costs of the adjournment granted on 11 December 2009 because of instances of conduct on his part that she described in terms such as the following: (i) Addressing correspondence to the Tribunal but without furnishing copies to the Respondents or otherwise informing them of its contents. (ii) Seeking adjournments on the date when the matter was listed for hearing. (iii) Failing to support adjournment applications with evidence. 28 She drew attention specifically to the following matters: (a) the Applicant's failure to give any advance notice whatever to the Crown Solicitor of his intention to apply for adjournment of the hearing commencing on 11 December 2009; (b) his failure to send to the Crown Solicitor a copy of his letter faxed to the Registrar on 10 December 2009; and (c) his failure to furnish any evidence, such as a medical certificate, substantiating his claim that he was unfit to travel to Sydney for that hearing. 29 Ms Oakley contended that, having regard particularly to subparagraphs (a)(iii) and (iv) and paragraph (b) of section 88(1A) of the ADT Act, it was 'fair' to order that the Applicant pay the Respondents' costs of the adjournment. 30 On behalf of the Applicant, Ms Donnelly pointed out that because Ms Antonios disqualified herself from membership of the Panel, the hearing could not have gone ahead. This, she submitted, was the inevitable outcome, irrespective of the Applicant's conduct or that of his legal representative. The Respondents were in the same position as they would have been if the Applicant had travelled to Sydney and appeared in the Tribunal hearing. It followed that the Applicant could not be said to have caused an adjournment within the meaning of section 88(1A)(a)(iv). Conclusions 31 In my opinion, Ms Donnelly's argument is well founded. Even if the Applicant had appeared at the hearing on 11 December 2009, it could not have gone ahead. It was not possible to reconstitute the Tribunal Panel immediately for a hearing of the complaint on its merits. The behaviour of the Applicant with regard to his non-appearance therefore did not cause any loss to the Respondents that they would not otherwise have suffered. 32 If Ms Antonios had not disqualified herself, however, the aspects of the Applicant's prior conduct on which Ms Oakley relied would clearly have justified a finding that it was 'fair' to award costs against him. In the days preceding the hearing, the Respondents and their legal representatives legitimately anticipated that it would go ahead. It would have been remiss of them not to prepare for it. Yet, even though some time had elapsed since the Applicant sustained the injury that prevented him from flying to Sydney, he left it until the last minute to notify the Tribunal by faxed letter that he did not intend to appear. He compounded this failure to deal with the matter appropriately by omitting to send a copy of his fax to the Crown Solicitor and by not furnishing a medical certificate stating the nature of his injury. 33 I have considered whether some amount of costs should be awarded to the Respondents on the ground that, if the Applicant had discharged his obligation to give advance notice of the likelihood that he could not attend the hearing on account of his injury, the Respondents' legal representatives would have expended less time and effort preparing for the hearing. But there was no evidence supporting this line of argument and it would not be appropriate for me simply to assume that time and money would have been saved. 34 The Respondents' application for their costs thrown away by reason of the adjournment of the hearing set down to commence on 11 December 2009 is accordingly dismissed. THE COSTS OF THE CONSOLIDATION APPLICATION The circumstances of this application 35 The two sets of Tribunal proceedings, both arising under the AD Act, which the Applicant sought to have heard concurrently with the present complaint were the first HCCC complaint and a complaint that he had made against the NSW Medical Board (hereafter ' the Medical Board complaint'). 36 The relationship between these three complaints can be outlined as follows. The respondents to the first HCCC complaint comprised the Respondents to the present complaint plus one other person (Ms Mobbs). However, the conduct alleged in the two complaints was wholly different. In the Medical Board complaint, the relevant events overlapped significantly with those relevant to both the first HCCC complaint and the present complaint. However, a wholly different respondent was involved. It is worth noting also that the Crown Solicitor acted for the respondents in all three complaints. 37 As mentioned above at [18], the Applicant, in his letter of 10 December 2009 to the Registrar, expressed the opinion that the first HCCC complaint and the present complaint could usefully be heard concurrently. 38 On 20 January 2010, during a case conference in the Medical Board complaint at which Mr Eaves appeared for the Applicant, the question of consolidation of the three complaints was given consideration. It was directed, inter alia, that the matters to be dealt with at a hearing in the Medical Board complaint previously set down for 22 and 23 February 2010 should be confined to the following: (a) any argument on the adequacy of the Points of Claim and Points of Defence that had been filed in this complaint, (b) any application made by the Applicant to have this complaint heard concurrently with any other matters; and (c) any application made by the respondent in this complaint (i.e., the Medical Board complaint) for summary dismissal of the complaint under section 102 of the AD Act. It was also directed that any consolidation application by the Applicant should be filed and served by 29 January. 39 On 1 February 2010, the Crown Solicitor asked in a letter to Mr Eaves whether it should be assumed that no consolidation application was being made since no such application had been served within the period specified. Mr Eaves contacted the Crown Solicitor and advised that this was incorrect, since his client still desired that the three complaints should be heard concurrently. On the same day, he wrote to the Registrar confirming that his client sought consolidation and setting out arguments in support of this course of action. He did not send a copy of this letter to the Crown Solicitor. 40 At a case conference in the present complaint held on 3 February 2010, various directions were given regarding the filing of evidence and the complaint was set down for hearing on the merits on 30 March. 41 On 12 February 2010, with reference to the Medical Board complaint, the Crown Solicitor wrote to Mr Eaves advising that at the hearing on 22 and 23 February the Medical Board would apply for an order that the complaint be summarily dismissed under section 102 of the AD Act. 42 On 18 February 2010, the Crown Solicitor faxed to Mr Eaves a letter headed 'Without prejudice save as to costs'. It indicated that the respondents to the three complaints opposed the consolidation application and set out a number of reasons why it should be rejected. These included the fact that the complaints were 'at different stages of progression' and an argument that prejudice would be occasioned to the Respondents in the present complaint and the respondent in the Medical Board complaint if consolidation were to be ordered. In this letter, the Crown Solicitor also conveyed an offer by the Respondents in the present complaint and in the first HCCC complaint, namely, that they would not seek their costs with respect to their preparation for the hearing of the consolidation application if the Applicant agreed to the withdrawal and dismissal of this application. The letter stated that this offer was made subject to the principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333 and remained open for acceptance until 5 p.m. on the following day, 19 February. No reply to this letter was received. 43 At the hearing before me on 22 February 2010, appearances were entered by Mr Eaves for the Applicant, by Ms Oakley for the Respondents in the present complaint and by Mr Lynch of counsel for the Medical Board. However, the Tribunal's list of hearings for the day referred only to the Medical Board complaint. 44 The question on which I first heard argument was the order in which the three matters set down for hearing (these are indicated at [38] above) should be dealt with. Mr Lynch suggested that I should hear the consolidation application first. Mr Eaves indicated that he had not expected to be asked on that day to put forward his submissions in support of this application and was therefore not properly prepared to undertake this task. The reasons that he gave were (a) that the Medical Board had not formally conveyed a response to the application and (b) the Tribunal had listed only the Medical Board complaint for hearing. Ms Oakley argued that the consolidation application should be heard first, on the grounds that (a) both in the directions given on 20 January and in prior correspondence (for example, Mr Eaves letter of 1 February to the Registrar), it was clearly indicated that the application was to be argued on 22 February, (b) she had therefore come prepared to argue it and (c) there was no other reason why the Respondents to the present complaint would have attended the hearing. 45 I ruled that the Medical Board's application for summary dismissal of the complaint against it should be heard first. In so ruling, I attached significant weight to the statement by Mr Eaves that he was not properly prepared to address the consolidation application. I adjourned the hearing of the consolidation application until the following day, 23 February 2010. 46 The hearing of the Medical Board's application for summary dismissal of the Applicant's complaint against it concluded on the afternoon of 22 February. I reserved my decision. 47 Later that afternoon, I was informed that the Tribunal's reserved decision on the application for summary dismissal of the first HCCC complaint (see [18] above) had just been received in the Registry. The order made by the Tribunal (with reasons furnished) was that the complaint should be dismissed under section 102 of the AD Act: see O'Sullivan v Pehm [2010] NSWADT 57. 48 At the commencement of the hearing on 23 February, I handed to Mr Eaves, Mr Lynch and Ms Oakley copies of this decision of the Tribunal. I then granted a short adjournment of the hearing. 49 When the hearing resumed, Mr Eaves sought a further adjournment of the hearing of the consolidation application, on the ground that his client needed time to consider the implications of the Tribunal's decision dismissing the first HCCC complaint. He submitted that making this decision available to the parties on that particular day was 'oppressive' to the Applicant and that there would have been no disadvantage in delaying delivery of the decision until the next day. He added that the Applicant wished to take counsel's advice regarding a possible appeal against it. 50 Mr Lynch opposed any further adjournment of the consolidation application. 51 Ms Oakley submitted that the application should be dismissed with costs. She argued that a hearing of the present complaint on the merits, set down to commence on 30 March 2010, should not be further delayed. 52 On the grounds that the consolidation application was once more not being pressed by Mr Eaves and that an important assumption on which it was based (namely that the merits of the first HCCC complaint might still need to be determined) was no longer valid, I ordered that it should be dismissed for want of prosecution, but without prejudice to the right of the Applicant to make a similar application in the future. 53 In a decision delivered on 22 March 2010 (O'Sullivan v NSW Medical Board [2010] NSWADT 75), I held that the Medical Board complaint should be summarily dismissed under section 102 of the AD Act. The Applicant has appealed against that decision. The parties' submissions 54 In contending in her written submissions that the Applicant should pay the Respondents' costs of the consolidation application, Ms Oakley pointed to conduct of the Applicant and of Mr Eaves of the following kind: (i) Addressing correspondence to the Tribunal but without furnishing copies to the Respondents or otherwise informing them of its contents. (ii) Making applications informally and without prior notice to the Respondents. (iii) Seeking adjournments on dates when the application was listed for hearing, again without prior notice to the Respondents. (iv) Failing to accept the Respondents' offer that no costs order would be sought if the consolidation application was withdrawn. (v) Unreasonably delaying conclusion of the matter. 55 With regard to paragraph (i) in this list, Ms Oakley referred to Mr Eaves' failure to serve on the Crown Solicitor a copy of his letter to the Registrar dated 1 February 2010. With regard to paragraph (ii), she referred to the fact that this letter, as distinct from a formal application, constituted the means whereby the Applicant applied to the Tribunal for a concurrent hearing of his three complaints. With regard to paragraph (iii), she referred to Mr Eaves' applications for adjournments made on 22 and 23 February 2010. The basis that she put forward for paragraph (iv) was the Applicant's failure to accept, or even respond to, the offer made in the Crown Solicitor's letter of 18 February 2010 (see [42] above). She maintained that if the Applicant had accepted this offer, the Respondents' legal representatives would not have had to prepare for and attend the hearings on 22 and 23 February. 56 In opposing Ms Oakley's contentions, Ms Donnelly put forward arguments to the following effect: (a) the reason why the hearing of the consolidation application was adjourned from 22 to 23 February was that I preferred to give priority to the hearing of the Medical Board's application under section 102; (b) it was reasonable for the Applicant, who had no prior notice of the timing of the Tribunal's decision regarding the first HCCC complaint, to determine on 23 February 2010 that, because this decision went against him and because I had reserved my decision regarding the Medical Board complaint, he should not proceed with the consolidation application; and (c) at the time when the Applicant was required to consider the offer contained in the Crown Solicitor's letter of 18 February 2010, the Medical Board had not yet filed its application for summary dismissal. My conclusions 57 In my judgment, the Applicant should pay the Respondents' costs of attendance at the Tribunal hearing on 22 February 2010, but should not be ordered to pay the costs of preparing for that hearing or any other costs of the Respondents relating to the consolidation application. 58 In ruling that it is 'fair' that the Applicant should be required to pay these costs, I take particular account of a matter referred to above at [45]. This is that when deciding at the hearing on 22 February 2010 that the Medical Board's application for summary dismissal of the complaint against it should be heard before the consolidation application, I attached significant weight to the statement by Mr Eaves that he was not properly prepared to address this application. Because the Respondents to the present complaint had attended that hearing, as required by prior directions, in order to deal with that application, and for no other purpose, my inclination would otherwise have been to give it priority. But Mr Eaves' lack of readiness to put forward the Applicant's arguments relating to it persuaded me that the proper course was to adjourn it. 59 I would regard this as an instance of 'causing an adjournment' under section 88(1A)(a)(iv) of the ADT Act, providing grounds for the conclusion that it is 'fair' to make a costs order. 60 I will add that I attach no importance to the fact that the Tribunal did not include the present complaint in its listing notice for that day. Indeed, this aspect of the matter was not mentioned in Ms Donnelly's submissions. 61 My reasons for reaching the opposite conclusion regarding the remaining costs associated with the consolidation application are as follows. As Ms Donnelly submitted, the Applicant had no control over, and could not have foreseen, the timing of the Tribunal's decision dismissing the first HCCC complaint. Had it been delivered some time earlier (for example, a week before the hearing on 23 February), he might well have decided not to proceed with this application and he would have been in a position to notify the other parties accordingly. Had it been delivered after the hearing, it must be assumed that Mr Eaves would not have sought on 23 February to have the application adjourned yet again, but would have put forward his arguments in support of it. In these circumstances, a costs order against the Applicant would not satisfy the statutory criterion of 'fairness'. 62 I will add three further observations, as follows. 63 First, the offer contained in the Crown Solicitor's letter of 18 February 2010 was not, in my view, an offer of compromise falling within the principles in Calderbank v Calderbank. The Applicant's decision not to accept it does not provide any ground for making a costs order against him. 64 Secondly, I reject the contention by Mr Eaves that the timing of the delivery of the Tribunal's decision on the first HCCC complaint was 'oppressive'. The content of that decision was of very great significance for the consolidation application that he himself had put before the Tribunal on behalf of the Applicant. To have deferred delivery of the decision would have caused the hearing of that application to proceed on an entirely false premise, namely, that a hearing on the merits of the first HCC complaint might in due course be required. 65 Thirdly, some of the alleged conduct of the Applicant and his legal representative on which Ms Oakley relied in her submissions – for example, what she described as 'the repeated and unexplained failure by the Applicant to comply with directions and orders of the Tribunal' – might well, if sufficiently established by evidence, be relevant to costs determinations made at some future stage in these proceedings. My partial rejection of the costs applications to which this decision relates is not intended to preclude the Respondents from relying in such a context on alleged conduct of that nature. 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