Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hughes v Narrabri Bowling Motel Limited (No 2) [2012] NSWADT 260 Hearing dates: On the papersSubmissions filed by 12 November 2012 Decision date: 10 December 2012 Jurisdiction: Equal Opportunity Division Before: G Furness SC, Judicial member A Lowe, Non judicial member M Nasir, Non judicial member Decision: Applicant's application for costs dismissed Catchwords: Costs - one complaint substantiated, five dismissed - withdraw of offer after accepted Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1977 Cases Cited: Salon Today Pty Ltd v M M I R Pty LtdHYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2009/71.html" \o "View Case"[2009] NSWADT 71 AT v Commissioner of Police, NSWHYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/131.html" \o "View Case"[2010] NSWCA 131 Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302 Wong v Office of the Board of Studies NSW (No 4)HYPERLINK "http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b2012%5d%20NSWADT%20128?stem=0&synonyms=0&query=application%20for%20costs" \o "View LawCiteRecord"[2012] NSWADT 128 Torchia v SwantonHYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2010/142.html" \o "View Case"[2010] NSWADT 142 Corrigan & Gibson v. Watson [2009] NSWADT 110 Barsoum v. Glebe Administration Board (No 2) HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2002/174.html" \o "View Case"[2002] NSWADT 174 Category: Costs Parties: Jennifer Hughes (Applicant) Narrabri Bowling Club Limited (First Respondent) Shay Welsh (Second Respondent) Dianne Welsh (Third Respondent) Representation: Merten Lawyers (Applicant) Bell and Johnson, Solicitors (Second and Third Respondents) Wilson & Co (First Respondent) File Number(s): 111071 REASONS FOR DECISION 1On 9 August 2012, the Tribunal found substantiated a complaint of sexual harassment in August 2010 by the Second Respondent, Mr Welsh and ordered him to pay the applicant $7,500: Hughes v Narrabri Bowling Motel Limited [2012] NSWADT 161. The Tribunal dismissed two further complaints of sexual harassment which were claimed to have occurred between January and August 2010by Mr Welsh. The Tribunal dismissed a complaint of victimisation against Mrs Welsh and dismissed two complaints of vicarious liability by the first Respondent. 2The Tribunal directed that any submissions as to costs be filed and served and a timetable was given. That timetable was subsequently amended so that the Applicant was to file and serve and submissions by 19 September, the Second Respondent by 11 October and the First Respondent by 1 November 2012. 3No submissions have been filed by the Second or Third Respondent and the First Respondent did not make any submissions for the reason given that the Applicant had advised that such an order was not sought against the First Respondent. Applicant's submissions 4The Applicant submitted that it relied upon its submissions made as to costs when it made its submissions as to the substantive matters in May 2012. Those submissions were that the First and Second Respondents should pay the Applicant's costs on a 'solicitor own client' basis. She submitted that the liability of the Bowling Club, the First Respondent for costs was exacerbated by its lack of any preventative action or other action to effectively investigate the complaints raised by the Applicant. 5In her submissions dated 27 August 2012, the Applicant submitted that the second Respondent had made admissions during the 'original conciliation proceedings'. Section 91A of the Anti-Discrimination Act 1977 provides that evidence of anything said or done in the course of conciliation proceedings under that section is not admissible in any subsequent proceedings relating to the complaint. Accordingly, the Tribunal has not taken into account this submission by the Applicant. 6The Applicant further submitted that on the eve of the second day of the two day hearing, the Respondent made an offer to pay the Applicant $15,000 in compensation and the 'Respondent' made a counter offer of $25,000 and said they would consider the matter overnight (we assume that this is in error and the Applicant intended to state 'Applicant' instead of Respondent made the counter offer and that she would consider the matter overnight). The following morning the Applicant accepted the offer of $15,000 but the Respondent withdrew their offer to settle and continued with the hearing, 7The Applicant submitted that her legal costs were nearly $12,000. "Given that the matter could have settled save for the Respondent Shay Welsh's position at 2 stages in the proceedings being the conciliation conference and the second stage being the morning of the first day of hearing, it is the submissions of the writer that the applicant's costs should be paid by the Respondent Welsh in full". 8It is not clear from the submissions which of the respondents made the offer, however, it seems likely that it was Mr Welsh. There were six complaints; three complaints against Mr Welsh, two complaints against the Bowling Club and one against Mrs Welsh. The legislative provisions 9Costs in any proceedings are governed by s 88 of the Administrative Decisions Tribunal Act 1977which provides:- 88 Costs (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 (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) 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, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of theLegal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 10Section 110 of the Anti-Discrimination Act provides that the Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint. 11Section s 88 sets a test of "fairness" in sub-s 1A, in contrast to the earlier provision, which stated that there should be 'special circumstances warranting an award of costs'. The current version became operative on 1 January 2009. 12In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 (a case decided under the Retail Leases Act 1994), the Tribunal stated at [72]:- What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant's entitlement to costs. ...[T]he result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors. 13The provisions relating to fairness were examined in AT v Commissioner of Police, NSW[2010] NSWCA 131 where the Court of Appeal said:- [33] That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act. 14In Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302, [11] (Rickards JM) the Tribunal said: The decision as to whether or not costs should be awarded, does not simply involve a balancing exercise to determine what is fair. To reiterate, s 88 provides that each party is to bear its own costs unless there is some particular circumstance which makes it fair to order a party to pay the costs of another party and, if such circumstance exists, the Tribunal may then order costs but only if it considers in its discretion that it is appropriate to do so. 15In Wong v Office of the Board of Studies NSW (No 4)[2012] NSWADT 128, the Tribunal referred to AT v Commissioner of Police and noted the relevance to the Objects of the Administrative Decisions Act including sub-ss 3(b) and (c) which provide:- (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner... Consideration 16The Applicant did not refer to s.88 in either of its submissions. The Tribunal has considered whether any of the matters raised by the Applicant fall within any of para (a), (b) or (d) of s.88. The Tribunal is of the view that none do fall within those paras, and in particular, the proceedings were not attended by any particular complexity. 17In relation to para (c), that is the relative strengths of the claims made, Mr Welsh did not deny he used words similar to those claimed that he used by the Applicant, however he denied any sexual overtones. In light of the findings of the Tribunal, the Tribunal is not of the view that the relative strengths of the claims made by each party is applicable in determining whether it is fair to award costs. 18In order for the Applicant to be successful, therefore, in its application, the matters raised by her in her submissions must be matters that the Tribunal considers relevant: para (e). 19As indicated above, the Tribunal has not and cannot take into account any words said during conciliation before the Anti-Discrimination Board. What remains are the negotiations between the parties which commenced after the first day of hearing and concluded on the morning of the second and last day of hearing. 20In Torchia v Swanton[2010] NSWADT 142, the Tribunal stated as follows: 39 That Tribunal [inCorrigan & Gibson v. Watson[2009] NSWADT 110] observed that the principles in Calderbank v. Calderbank [1975] 3 All ER 333 "may be a relevant matter when the Tribunal is determining whether it is fair to make an order for costs. However, unlike the (Victorian Civil and Administrative Tribunal Act) the (Administrative Decisions Tribunal Act) does not contain a specific provision which creates a presumption that costs will be awarded if certain settlement offers are rejected and the Tribunal subsequently makes orders that are not more favourable to the other party than the offer: VCAT Act s.112 ... the question of whether we should exercise our discretion to award costs based on the Respondent's letter does not arise in this case because the letter is not a Calderbank offer. A Calderbank offer must involve "a real and genuine element of compromise" ... and an offer that merely dismissal of proceedings and payment of costs lacks any element of compromise - it is a demand for capitulation designed solely to trigger an entitlement to indemnity costs ... (and in any event) the proceedings were withdrawn before the Tribunal made an order of any kind. ... 41 As I pointed out in Barsoum v. Glebe Administration Board (No 2)[2002] NSWADT 174 at [40] that I did "not think that it makes any difference whether an offer was made in open court, by some form of letter or by some formal Offer of Compromise pursuant to particular rules of a particular court. The real issue is whether in all the circumstances the offer was properly made (having regard to the whole course of the litigation) and whether it was unreasonably rejected". 21The facts in this case are somewhat unusual in that an offer was made, accepted and then the offer was withdrawn. The Tribunal agrees that the making of an offer and its acceptance and then the withdrawal of the offer is a relevant matter to take into account in considering whether it is fair to award costs. 22The Tribunal does not have the benefit of any submissions from any of the Respondents as to the negotiations referred to by the Applicant. Indeed, it is not at all clear from the Applicant's submissions which Respondent made the offer, the precise terms of any offer and whether it was limited in time. Further, the offer was accepted, albeit following that acceptance it appears it was withdrawn, thus there was no rejection of the offer so as to give rise to consideration of whether any rejection was reasonable. The offer which was withdrawn was double the amount which was ultimately awarded by the Tribunal against the Second Respondent and hence is not a matter which necessarily favours the Applicant in considering matters of fairness. 23In addition, there are other relevant matters to be taken into account. The Applicant made and pursued six complaints against three Respondents. She was successful only on one complaint against one Respondent. She was unsuccessful in two other complaints made against that same Respondent. The length of the hearing was related to the number and content of the complaints made. Most of the evidence concerned one or more of the five complaints which were dismissed. The evidence and law in relation to the successful complaint was not complex. 24The Applicant's submissions do not reveal a breakdown of the costs incurred, however, it must be the case that costs were incurred in relation to preparation of evidence in support of the five unsuccessful complaints. 25The Tribunal is not satisfied that, having taken into account these matters, it would be fair to award the costs to the Applicant equal to the amount she has incurred. Her complaints were largely unsuccessful and the amount offered was double the amount ultimately awarded by the Tribunal. The Applicant's counter offer was significantly greater that the amount offered by a Respondent. 26The question remains whether any smaller amount should be awarded to compensate the Applicant for the decision to uphold one complaint of sexual harassment. 27The Tribunal is not persuaded that any amount should be awarded. As stated by the Court of Appeal, the general principle that each party should bear its own costs is still applicable. The Applicant was successful in part only and the circumstances of the offer, acceptance and withdrawal as detailed in the submission by the Applicant does not satisfy the Tribunal that it would be fair to award her costs. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** 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. Decision last updated: 10 December 2012