Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McKellar v Bourke Bowling Club Ltd [2015] NSWCATAD 262 Hearing dates: On the papers Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Conley Senior Member, J Goodman Delahunty, General Member, I O'Connell, General member Decision: The respondent's application for costs is refused. Catchwords: Costs – Respondent's application for costs – whether it is fair to award costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Tribunal Act 1997 Cases Cited: R v Kelly (Edward) [2000] QB 198 San v Rumble No2 [2007] NSWCA259 Council of the Law Society of New South Wales v Gallego (No 3) [2015] NSWCATOD37 Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20 Legal Services Commissioner v O'Connor (No 2) [2006] LPT 002 Texts Cited: Loke v Department of Education and Communities (No2) [2015] NSWCATAD (1 October 2015); Da Rin v Duffy (No3) [2015] NCWCADTOD 88. Borsak V Cheung [2006] (No2) NSWADT 208 (7 July 2006); Hendrikson v Yarra Bay 16ft Skiff Sailing Club (No2) NSW ADT 204; Alramon Pty Ltd v Jonamill Pty Ltd (No 2)[2009] NSWADT, 302; AT v Commissioner of Police, NSW [2010] NSWCA 131; Wong v Office of the Board of Studies NSW (No 4)[2012] NSWADT 128 Category: Costs Parties: Clancy McKellar (Applicant) Bourke Bowling Club Ltd (Respondent) Representation: Solicitors: Western NSW Community Legal Centre (Applicant) Booth Brown Legal (Respondent) File Number(s): 131040 Reasons for decision Background 1. The applicant is an Aboriginal and is married to an Aboriginal woman. They were both members of the respondent Club, which is a Registered Club located in Bourke New South Wales. He brought proceedings against the respondent claiming that the respondent discriminated against him on the ground of his race. His wife also made a complaint that the respondent had discriminated against her on the ground of her race and marital status. Their complaints arose out of the same factual events and so were directed to be heard together. They were listed together in case conferences and heard together over two days in Dubbo in the Administrative and Equal Opportunity Division of this Tribunal. The decision was reserved and on 5 August 2015, the applicant's complaint and that of his wife husband were dismissed by the Tribunal. In the orders, the Tribunal made directions for the filing and service of any application for costs, if any costs application were to be made. The Tribunal further directed that if such an application were to be made, then it would be dealt with on the papers. 2. The respondent subsequently filed an application for an order for the payment of costs. The applicant filed written submissions opposing any order for costs against him. 3. In the reasons for the decision in the substantive matter, the Tribunal noted that the President of the Anti-Discrimination Board had referred the applicant's complaints to the former Administrative Decisions Tribunal (the ADT). The complaint was filed in this Tribunal on 21 May 2013. On 1 January 2014, the ADT was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act (the ADA) 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal, pursuant to the Civil and Administrative Tribunal Act 2013, (the CAT Act) Schedule 3, cl 3(1). The matter was heard on 18 and 19 March 2015. The Tribunal reserved its decision. The Tribunal noted that in accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, the application was "part heard proceedings". 4. In relation to this application for costs, because of the application of the transitional provisions, the provisions of s88 of the Administrative Decisions Tribunal Act 1997 in force immediately before the commencement of the Civil and Administrative Tribunal Act apply. Loke v Department of Education and Communities (No2) [2015] NSWCATAD (1 October 2015); Da Rin v Duffy (No3) [2015] NCWCADTOD 88. Relevant Legislation 1. 5 Section 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. 2. (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: 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: 1. failing to comply with an order or direction of the Tribunal without reasonable excuse, or 2. 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 3. asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or 4. causing an adjournment, or 5. attempting to deceive another party or the Tribunal, or 6. vexatiously conducting the proceedings, 1. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, 2. 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, 3. the nature and complexity of the proceedings, 4. any other matter that the Tribunal considers relevant. 1. The Tribunal may: 1. determine by whom and to what extent costs are to be paid, and 2. 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. 1. 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. 2. In this section, costs includes: 1. costs of or incidental to proceedings in the Tribunal, and 2. the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. Submissions 1. The provisions of s88 of the ADT Act apply in relation to this application for costs. The respondent filed submissions based upon section 60 of the CAT Act. It is noted that those submissions made reference to the previous provisions found in s88 of the ADT Act. Reference was also made to the fact that it would be "fair" to make an order for costs. The respondent identified grounds upon which it claimed were sufficient to establish an entitlement to an order for costs. There are some common criteria in both s60 of the CAT Act and s88 of the ADT Act. The Tribunal had regard to the factual matters upon which the respondent claimed it's costs application was based and the reference to s88 of the ADT Act. 2. The Tribunal notes the applicant subsequently filed submissions in response to the respondent's submissions. The applicant therefore addressed the provisions of section 60 the CAT Act, rather than s88 of the ADT Act. The applicant also made submissions in respect of factual matters in relation to the costs application. The Tribunal has had regard to those submissions in respect of the factual matters. The relative strengths of the claims made by each of the parties, including whether the applicant has made a claim that has no tenable basis in fact or law 1. The respondent noted that the applicant failed to discharge the necessary evidentiary burden and the complaint was dismissed. It was claimed that the relative strength of the applicant's case was from the outset questionable. There was no direct evidence of discrimination and no causal link to establish the treatment complained of was on the ground of race. The Tribunal found that no such inference could be drawn. The respondent submitted that the complaint was "tenuous". 2. The applicant denies his claim was tenuous and claims he had an arguable case which he failed to prove. It was submitted by the applicant that even if a complaint is found to be "tenuous", this is not sufficient to warrant an order for costs. Whether the applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings/ failing to comply with a direction of the Tribunal 1. It was claimed by the respondent that the applicant had been responsible for prolonging the proceedings and failed to comply with Directions of the Tribunal in relation to the filing and serving of documentary material. 2. The applicant concedes that there was non-compliance with Directions of the Tribunal which resulted in delays. It submitted that the applicant and his wife are an elderly couple who live in a remote area of New South Wales and have low literacy. This resulted in them having difficulty acting proactively and resulted in delays in the progression of their complaints. 3. It was also submitted that the respondent equally failed to comply with the Directions for the filing and serving of witness statements and Points of Defence and failed to appear (by telephone) in case conferences. It was noted that the respondent undertook to enquire and provide documentary material in the form of Board Minutes, but did not do so for a period of approximately three months. In summary the applicant submitted that the conduct of the respondent also resulted in a prolongation of the proceedings. It was submitted that the respondent Club does not have the same reasons for it's own very lengthy delays in progressing it's case. Any other matter 1. The respondent submits that it is a community Club and a not for profit organisation providing a benefit to it's members. It was conceded that there is a public interest objective against discouraging applicants from "airing their grievances in this Division", but it was submitted however that the purpose of costs are to ensure that parties conduct their cases in a way that costs are not unnecessarily incurred or forced on others and referred to Hendrikson v Yarra Bay 16ft Skiff Sailing Club (No2) NSW ADT 204 (Hendrikson). 2. It was also claimed that the applicant's conduct of the matter led to avoidable costs. It was submitted that it was "fair in the circumstances" to make an order for costs in favour of the respondent as the applicant's conduct of the matter led to avoidable costs, relying upon Borsak V Cheung [2006] (No2) NSWADT 208 (7 July 2006). Should the Tribunal make an order for costs 1. In 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. 1. The provisions of s88 of the ADT Act were considered by the Court of Appeal in AT v Commissioner of Police, NSW [2010] NSWCA 131, where it was stated by Basten JA: 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. 1. In 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... 1. S.88 provides that the general rule is that parties bear their own costs, unless the party seeking an order for costs can establish that one or more of the criteria specified in s 88 of the ADT Act have been met and that it is "fair" to make an order for costs. The Tribunal notes the compensatory nature of costs must be taken into account. 2. The Tribunal considered the grounds identified by the respondent including the relative strengths of the claims of each party and whether the applicant's claim had no tenable basis in fact or law. The applicant's complaint was not proven on the requisite standard, on the available evidence. The Tribunal does not accept that the applicant's complaint was untenable in either fact or law, nor does the respondent claim this to be the case. It is not uncommon in complaints of discrimination that there is no direct evidence that the conduct upon which the complaint is based was on the ground alleged in breach of the provisions of the ADA. While it cannot be said that the applicant had a strong claim on the evidence, the Tribunal accepts the applicant had an arguable claim. 3. The Tribunal considered whether the applicant unnecessarily disadvantaged the respondent because of failing to comply with a Direction of the Tribunal for the filing of his Points of Claim and evidence. The Tribunal finds that the applicant did not comply with all the Directions of the Tribunal. There was no compliance with the Directions made at the first two case conferences. There was however no appearance of the respondent at both those case conferences. Following the third case conference, the applicant was late filing witness statements and the Points of Claim were not filed until much later. This did result in a delay in the proceedings coming before the Tribunal for hearing. 4. The Tribunal must however also have regard to the conduct of the respondent which also resulted in a delay in the proceedings being listed for hearing. In particular as noted above, there was no appearance of the respondent at the first two case conferences. The respondent also was very late in filing witness statements. Material the respondent undertook to produce, was produced late. The Tribunal therefore also finds that the respondent's conduct in the proceedings resulted in a delay in the finalisation of proceedings. 5. The hearing itself was however completed within the time allocated on the days listed. The applicant did not allege matters outside the scope of the complaint or jurisdiction. 6. The Tribunal notes that the facts here are clearly distinguishable from the facts in Hendrikson relied upon by the respondent. In that matter the applicant conducted her case in a manner which caused considerable disadvantage to the respondent. This included a failure to notify the respondent until the first day of hearing that she was not intending to proceed with part of her claim, thus leading to unnecessary costs incurred preparing a defence which was not necessary. She also filed a voluminous amount of late material on the last working day before the hearing. It was found that much of her evidence was focused upon matters irrelevant to the scope of the complaint and she maintained matters in her complaint which were bound to fail because they were outside the scope of the ADA. 7. The circumstances of this matter do fall within the scope of matters identified in s88. The applicant conducted the proceedings in a way which unnecessarily disadvantaged the respondent by failing without reasonable excuse comply with a Direction of the Tribunal. He was also responsible for prolonging unreasonably the time take to finalise the proceedings. The Tribunal has found however that both parties conducted the proceedings in a manner which led to delays and avoidable costs in relation to participation in the case conferences and compliance with Directions. The Tribunal does not accept that it would be fair to depart from the general rule that each party bear their own costs, where both parties have engaged in similar conduct. 8. S 88(1A) (e) provides that the Tribunal may have regard to any other matter. The Tribunal does not accept that it would be fair to make an order for costs because of the fact that the respondent is a not for profit Club. 9. The application for costs is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 11 December 2015