Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Shandil v Animal Welfare League NSW [2013] NSWADT 15 Hearing dates: 21 December 2012 (on the papers) Decision date: 24 January 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Mr Shandil is ordered to pay half the costs of the Animal Welfare League NSW in the sum of $5374.00 Catchwords: COSTS - application withdrawn - merits of application - pre-litigation costs Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131 Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Bevnol Constructions & Developments Pty Ltd v De Simone (Domestic Building) [2009] VCAT 546 Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215 Category: Costs Parties: Arun Shandil Animal Welfare League NSW Representation: Counsel A Douglas-Baker (Respondent) A Shandil (Applicant in person) Gadens Lawyers (Respondent) File Number(s): 121117 REASONS FOR DECISION Introduction 1The President of the Anti-Discrimination Board (ADB) declined Mr Shandil's complaint of disability discrimination against his former employer, the Animal Welfare League of NSW. The reason for declining the complaint was that Mr Shandil had signed Terms of Settlement in which he agreed to withdraw his complaint under the Anti-Discrimination Act 1977 and discontinue his application to Fair Work Australia after receiving a monetary settlement. Mr Shandil did not withdraw his complaint and insisted that the President of the Anti-Discrimination Board refer it to the Tribunal. The day before the hearing to determine whether leave should be granted for the complaint to go ahead, Mr Shandil withdrew his application. The Animal Welfare League seeks its costs. 2Despite the general rule that each party pays their own costs, it is it is fair to order Mr Shandil to pay half of the Respondent's costs. That is because despite knowing that he was legally obliged to withdraw his complaint to the ADB, Mr Shandil did not do so. He vexatiously continued to prosecute his complaint withdrawing it only on the day before the hearing. Complaint to the Anti-Discrimination Board 3Mr Shandil lodged his complaint of discrimination with the ADB on 7 March 2012. On 10 April he attended a conciliation conference at Fair Work Australia where the parties signed Terms of Settlement in which Mr Shandil agreed to discontinue the complaint under the AD Act. The Respondent advised the Anti-Discrimination Board on 18 May that Mr Shandil had agreed to discontinue his complaint but had not yet done so. 4On 5 June 2012 Mr Shandil wrote to the ADB saying that his application to Fair Work Australia was a separate matter which was resolved at conciliation. He says he was not represented at the conference and has since been advised that his complaint at the ADB should be conciliated separately. He did not say who had given him that advice. The President of the ADB declined the complaint on 23 August 2012 because Mr Shandil had signed a settlement agreement at Fair Work Australia which included an agreement to discontinue his complaint at the ADB. On 12 September Mr Shandil wrote to the ADB requesting that his complaint be referred to the Tribunal and saying that the subject matter of his disability discrimination complaint was not dealt with by Fair Work Australia. He also wrote that he lacked capacity to sign a formal agreement. Legal principles 5The Tribunal has power to award costs under s 88 of the Administrative Decisions Tribunal Act 1977 (ADT Act) in relation to proceedings brought under the AD Act: AD Act, s 110. The general rule is that each party pays their own costs. Costs may only be awarded if the Tribunal is satisfied that it is fair to do so having regard to the matters listed in s 88 of the ADT Act: (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. 6In AT v Commissioner of Police, NSW [2010] NSWCA 131 at [26], the Court of Appeal held that the criterion of fairness was "not qualitatively different" from "the exercise of an unfettered discretion". At [33], the Court emphasised the general principle that each party should bear its own costs adding that: 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. 7In relation to the objects of the ADT Act and the nature of the jurisdiction, the Appeal Panel has made the following observations about cases in the Equal Opportunity Division in Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30 at [6] - [9]: It has been most unusual for costs orders, especially full costs orders, to be made against a complainant in the equal opportunity jurisdiction. The equal opportunity jurisdiction serves the important social purpose of providing a facility for the resolution of grievances over perceived unlawful discrimination against individuals on the basis of irrelevant personal characteristics or attributes, such as gender, race and marital status. The making of costs orders may discourage people from airing their grievances. The primary rule reinforces these public interest objectives. The exception is not lightly to be applied. This Tribunal's costs rule is similar to the costs rule that applies in the Victorian Civil and Administrative Tribunal (VCAT): see Victorian Civil and Administrative Tribunal Act 1998, s 109. Morris J, then President of VCAT, sitting in that Tribunal's Planning List, noted in Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059: It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that 'it is fair to do so' will influence the manner in which a particular jurisdiction operates. Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal. In my view, these considerations apply with additional force to a human rights jurisdiction of the kind that the Equal Opportunity Division is. Costs application 8The Respondent applied for costs on the following basis: (1)the existence of a binding agreement disposing of the dispute between the parties; (s 88(1A)(e) (2)the relative strengths of the parties' cases in light of the existence of a binding agreement disposing of the dispute between the parties; s 88(1A)(c); (3)Mr Shandil's disobedience of the terms of the binding agreement in refusing to withdraw the complaint despite his agreement to do so; and (4)Mr Shandil vexatiously pursuing the complaint before the Tribunal (s 88(1A)(a)(vi). 9The Respondent provided evidence that since about 7 May 2012, it has incurred legal costs in trying to enforce the Terms of Settlement with Mr Shandil including by: (1)engaging solicitors to liaise with and prepare correspondence to be sent by it to Fair Work Australia and the Anti-Discrimination Board and Mr Shandil, with a view to enforcing the Terms of Settlement; ($4,482 plus GST) (2)instructing solicitors to represent it in these proceedings; ($7748 plus GST) and (3)briefing counsel to appear for it at the hearing on 4 December 2012; (estimated at $3,000 plus GST). Pre-litigation costs 10The Respondent's costs are divided into three categories: solicitor's costs incurred while the complaint was at the ADB, solicitor's costs incurred while the complaint was at the Tribunal and counsel's fees. The ADT Act defines costs in s 88(4) as 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. 11The Tribunal has never determined the issue of whether costs incurred while a complaint is before the President of the ADT constitutes a "proceeding" under s 88(4)(b). Neither party made submissions on that point. 12A related issue was examined in detail in a case in the Revenue Division of the Tribunal: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 at [77] and following. The Tribunal decided that a key ingredient of a "proceeding" was "the presence of an independent person who reaches a decision after considering matters put to him or her by contending parties in accordance with some recognised (though not necessarily formal) procedure: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 at [94]. 13The Tribunal concluded in that case that neither the review of the assessments of payroll tax nor the Commissioner of State Revenue's determination of the applicant's objections to the assessment of payroll tax was a "proceeding." In both cases the decision makers were administrators, not an independent arbiter. Furthermore, no established procedure applied to the decision making process: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 at [106]. The Tribunal held that it had no power to award costs in relation to these two administrative processes. 14The Tribunal mentioned at [98] that an inquiry conducted by the Anti-Discrimination Board was a "possible instance" of a "proceeding" under s 88(4). That remark arose from a submission that conciliation proceedings that take place under the AD Act may constitute "proceedings" because they are formal proceedings of a court-like character, in which the parties involved may be required to attend and give evidence. There is no need to make a finding as to whether a conciliation conference under the AD Act falls within the definition of a "proceeding" because there was no conciliation conference under the AD Act in this case. 15In relation to decisions made by the President, such as a decision to decline a complaint, I accept that the President of the ADB is an independent person who makes that decision after considering matters put to him by contending parties. Unlike the Tribunal's merits reviews jurisdiction, the decision maker is not a party to proceedings in the Tribunal. 16Although the President of the ADB is an independent person, the procedure adopted to determine whether a complaint should be declined is not a recognised or established procedure. My understanding is that the procedure adopted by the President of the ADB is for parties to write to him setting out their point of view and, if relevant, enclosing documents. No written or oral evidence is formally given nor are written or oral submissions formally made. There is no provision for legal representation. 17While these are not essential requirements of a "proceeding", the level of informality and the lack of statutory detail as to the content of those procedures, suggest that this case falls outside the test proposed in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21. See also, Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 at [40] to [54]. 18I make this finding somewhat tentatively given that no submissions were made in relation to it. Another occasion may arise when the issue can be re-visited. Mr Shandil's submissions 19Mr Shandil responded to the application for costs by defending the merits of his complaint. He said, [T]he fact remains that my services were terminated when I was still on sick leave for about 2 weeks; hence it was a clear cut case of disability discrimination." He does not refer to the fact that he received a monetary settlement after agreeing to withdraw his complaint to the ADB. He made the following additional points: (1)I withdrew my application from ADT because I was not feeling well at the time. (2)I withdrew my application which could have given rise to compensation payments to me by AWL. (3)My application was neither vexatious nor frivolous. It was genuine and did not lack substance. Mr Shandil also asks the Tribunal to award him compensation for lost wages for unfair dismissal on the ground of disability. Consideration 20Mr Shandil signed Terms of Settlement agreeing to withdraw his complaint before the Anti-Discrimination Board. He did not do so and the President had no option but to decline his complaint and refer it to the Tribunal at Mr Shandil's request. I must determine whether, in those circumstances, it is fair to award costs. 21The general rule that each party bears its own costs and, particularly in the Equal Opportunity Division, it is important not to discourage people who cannot afford legal representation and who are unsuccessful in obtaining free legal assistance, from bringing a case in the Tribunal. But applicants must not lightly engage in conduct which will lead a respondent to incur costs unnecessarily. 22Despite his excuses, I am satisfied that Mr Shandil knew that he was legally obliged to withdraw his complaint after signing the Terms of Settlement. Both the Respondent and the ADB told him that that was the case. There is no merit in Mr Shandil's complaint: ADT Act, s 88(1A)(c). I am also satisfied that Mr Shandil has vexatiously conducted the proceedings: ADT Act, s 88(1A)(a)(vi). 23Vexatiously conducting the proceedings refers to the manner in which the proceedings were conducted. In Bevnol Constructions & Developments Pty Ltd v De Simone (Domestic Building) [2009] VCAT 546, when interpreting the equivalent provision in the Victorian Civil and Administrative Tribunal Act 1998 Ross J held at [27] that "[A] proceeding may be said to have been conducted in a vexatious way 'if it is conducted in a way productive of serious and unjustified trouble or harassment, or conduct which is seriously and unfairly burdensome, prejudicial or damaging." (See also Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215 at [14].) 24Mr Shandil knew that his complaint could not possibly succeed because he was legally bound to withdraw it after receiving the settlement monies. Despite that, he directed the President of the ADB to refer his complaint to the Tribunal. The day before the hearing to determine whether leave should be granted for the complaint to proceed, Mr Shandil withdrew his complaint. The Respondent should be compensated, at least in part, for its costs. 25I am satisfied that it is fair to award the Respondent part of its costs. Given that the Equal Opportunity Division is a human rights jurisdiction and applicants should not be discouraged from lodging and pursuing legitimate complaints, a partial costs order is appropriate. I consider half the amount claimed to be fair in this case. Order 26Mr Shandil is ordered to pay half the costs of Animal Welfare League NSW in the sum of $5,374.00. ********** 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: 24 January 2013