Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Brown v Bourke Bowling Club (No 2) [2013] NSWADT 74 Hearing dates: On the Papers Decision date: 08 April 2013 Jurisdiction: Equal Opportunity Division Before: Conley, J Judicial Member Decision: The respondent is ordered to pay the applicant's costs as agreed or as assessed within 28 days from the date of these reasons. Catchwords: Application for costs - successful applicant Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Cases Cited: Alramon Pty Ltd v Jonamill Pty Ltd (No 2)[2009] NSWADT, 302 ; AT v Commissioner of Police, NSW [2010] NSWC, 131; Cooper v Western Area Local Health Network[2012] NSWADT 39; Wong v Office of the Board of Studies NSW (no4) NSWADT 128 Category: Costs Parties: Patricia Brown (Applicant) Bourke Bowling Club (Respondent) Representation: Counsel P Battley (Applicant) Legal Aid NSW (Applicant) Lovett & Green Pty Ltd (Respondent) File Number(s): 101108 REASONS FOR DECISION Background 1This was a claim by the applicant who is an Aboriginal woman, of race discrimination by the respondent, which is a Registered Club. The Tribunal determined that the respondent discriminated against the applicant on the grounds of her race. Written reasons for decision were provided and the respondent was ordered to pay the applicant compensation in the sum of $8,000. The respondent was also ordered to provide a written apology. 2The Tribunal directed that any submissions as to costs be filed and served and a timetable was given. The Tribunal received submissions in writing from both the applicant and the respondent. Applicant's submissions 3The Applicant submitted that in line with the principles identified by the Court of Appeal in AT v Commissioner of Police, NSW [2010] NSWCA 131, it would be "fair" to order the respondent to pay the applicant's costs of the proceedings "with reference to the compensatory purpose of costs" as noted by Basten J. The purpose being to compensate the successful party for being caused by the other to have recourse to proceedings to obtain his or her rights. 4The applicant submitted that the respondent's failure to comply with Tribunal directions and delay in responding to summonses unreasonably prolonged the preparation of the matter for hearing and contributed to the adjournment of the hearing set down for 23 and 24 November 2011. The applicant relies upon a "procedural chronology" to "establish that on several occasions, the Respondent failed to adhere to Tribunal timetables for the filing and service of documents and that there were repeated delays by the Respondent in its compliance with summons to produce documents". Of significant relevance the applicant claims that "The critical document sought under the summonses was ultimately provided to the Applicant on 22 November 2011, the day before the matter was due to commence for 2 days hearing. On 23 November the Respondent sought and was granted an adjournment of the hearing when the Applicant sought to tender the documents including the material produced on summons." 5In the procedural chronology the applicant identified 9 case conferences whereby the respondent had not complied with Directions of the Tribunal by failing to provide as ordered, the Points of Defence, witness statements and/or documents required under summons. 6It is also claimed that the applicant was wholly successful in her claim. The respondent's contention that the applicant was a "serial offender" was rejected. As noted above the applicant relies upon AT v Commissioner of Police, NSW [2010] NSWCA 131, submitting that it would be "fair" to order the respondent to pay the applicant's costs of the proceedings "with reference to the compensatory purpose of costs" the purpose being to compensate the successful party for being caused by the other to have recourse to proceedings to obtain his or her rights. 7It was submitted that the proceedings were factually complex. It was additionally claimed that the location of the hearing resulted in considerable costs of conducting the proceedings because of the cost of travel for legal representatives. Respondent's submissions 8It was submitted by the respondent that it did not fail to comply with an order or direction of the Tribunal without reasonable excuse. The respondent submitted that it did not unduly delay the production of material as it was produced "as soon as possible after it was received" and any delay incurred did not unnecessarily prolong the proceedings or disadvantage the other party. It was also submitted that the adjournment at the commencement of the hearing in Dubbo on 23 November 2011 did not unnecessarily disadvantage the other party. The respondent also noted that the applicant sought to have the proposed hearing dates of 26 to 28 March vacated. In summary the respondent submitted that any delay which occurred during the proceedings did not disadvantage unnecessarily the other party. 9The respondent disputes the contention that the applicant's claim was wholly successful. It was claimed by the respondent that it , "had no option but to defend what was a very large claim of $100,000". The determination of the Tribunal was that the respondent was only ordered to pay the applicant the sum of $8,000. 10It was submitted that the applicant's costs of legal "staffing" were "excessive and unjustified". The applicant had an instructing solicitor and counsel as well as a paralegal. In summary it was submitted that the respondent has not conducted the proceedings in a way to disadvantage the other party and it would not be fair to be ordered to meet the applicant's costs. The legislative provisions 11Section 110 of the Anti-Discrimination Act provides that the Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act (the ADT Act) 1997 in respect of proceedings before the Tribunal in relation to a complaint. Section s 88 sets a test of "fairness" in sub-s 1A. 12Section 88 of the ADT Act 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 the Legal 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. The Decision 13In Alramon Pty Ltd v Jonamill Pty Ltd (No 2)[2009] NSWADT, 302 [11] 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." 14The issue was of fairness was considered by the Court of Appeal in AT v Commissioner of Police, NSW [2010] NSWCA 131, where it was stated: [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. 15In Wong v Office of the Board of Studies NSW (No 4)[2012] NSWADT 128, the Tribunal made reference 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... 16In the decision of Cooper v Western Area Local Health Network (No2) [2012] NSWADT 138 the Tribunal considered an application for costs. The Tribunal looked at the decision of AT v Commission of Police, NSW [2-1-] NSWCA 131 and determined that "three propositions" could be drawn from the decision. a) no costs must be ordered if the Tribunal is not satisfied that it is fair to do so; b) the relevant fairness must be grounded in one of the criteria set out in the Act; and c) the compensatory nature of costs must be taken into account when assessing the "fairness" and that consideration will "generally" favour the successful party. 17The applicant has provided a detailed schedule of a "procedural chronology" in this matter. The respondent claimed that in respect of the information sought by the applicant, it was forwarded to the applicant's legal representative as soon as possible after it was received. The respondent however does not otherwise dispute the facts as detailed in the applicant's schedule. 18This is a matter which has had an extraordinary number of case conferences in preparation for hearing. The applicant's schedule of "procedural chronology" identified 9 case conferences where the respondent has not complied with Directions and or summons or has been evasive or obstructive in relation to material sought under summons. The schedule shows the applicant clearly sought material for a relevant comparator and sought material in relation to members "barred" from the respondent Club. The material sought was critical for the applicant's claim and was ultimately produced to the applicant. The Tribunal does not accept the respondent's submission that the documents were produced as soon as they became available, because they were documents which were in the respondents control and possession. 19The applicant claims that the late production led to the late filing of the material which resulted in the respondent seeking the adjournment of the hearing in November 2011. The adjournment on 23 November 2011 was at the comment of a regional hearing which had been set down for 2 days in Dubbo. There was clearly an excessive number of case conferences and a two day regional hearing adjourned at the commencement of the hearing. The Tribunal finds that the respondent has failed to comply with directions of the Tribunal without reasonable excuse and it's conduct has been responsible for prolonging unreasonably the time taken to complete the proceedings. The Tribunal does not accept the respondent's submission that the applicant would not have been unnecessarily disadvantaged by the delays. The respondent has conducted the proceedings in a manner which has disadvantaged the applicant. 20The Tribunal notes that the respondent's reference to the hearing dates vacated in March 2012 at the request of the applicant. Those dates were vacated well prior to the hearing. The reasoning was entirely different, as the applicant's solicitor claimed that she had not been consulted by the Registry in relation to the hearing dates and was not available on the dates listed. 21The applicant claims that she was "wholly successful in her claim". The respondent disputes this, claiming that while the applicant was successful the claim itself was excessive. The applicant sought a very large sum of $100,000 and was awarded only $8,000. The claim was successful except as to the quantum of the compensation awarded. The respondent does not dispute the applicant's claim that she declined to offer a compromise offer of settlement. 22The Tribunal notes that the respondent submits that the applicant's legal representation was excessive, being instructing solicitor, counsel and a para-legal. With the exception of the para-legal the respondent was also represented by instructing solicitor and counsel. The Tribunal does not accept that the staffing levels were excessive and unjustified. 23The Tribunal does not accept that the location of the hearing is a factor which disadvantaged the applicant as the hearing was held in Bourke at the request of the applicant. 24The general rule is that parties bear their own costs unless the party seeking the order for costs can establish that one of the criteria in section 88 of the ADT Act have been met and that it is fair to make an order for costs. In relation to this application the Tribunal finds that the respondent has failed to comply with directions of the Tribunal without reasonable excuse and it's conduct has been responsible for prolonging unreasonably the time taken to complete the proceedings. The respondent has conducted the proceedings in a manner which has disadvantaged the applicant. The Tribunal finds that criteria in section 88 have been met, the Tribunal may if it considers it is fair to do so make an order for costs. 25The Tribunal notes that the proceedings were complex and the applicant could not have dealt with her claim herself without representation. The Tribunal has regard to the compensatory nature of costs. In the circumstances the Tribunal finds that it would be fair to make an award of costs in favour of the successful applicant. 26The respondent is ordered to pay the applicant's costs as agreed or as assessed within 28 days from the date of these reasons. ********** 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: 08 April 2013