Anti-Discrimination Decisions
[2008] TASADT 004
Parties: |
DI BENEDETTO, Dino v WILSON, Kate and WILLIS, Ross (Costs) |
File No/s: |
100-0601002 |
Delivered on: |
30 May 2008 |
Decision of: |
C Rheinberger & V Rutter, Tribunal Member |
Catchwords:
Equal opportunity - Costs application - Whether costs awarded Party/Party or Solicitor/Client - Anti-Discrimination Act 1998 (Tas) ss99A and 95
Representation:
Counsel: |
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Complainant: |
Benedict Bartl |
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Respondent: |
Craig Mackie |
Solicitors: |
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| Complainant: | Hobart Community Legal Service Inc. |
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Respondent: |
Mackie Crompton |
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Decision Number: |
[2008] TASADT 04 |
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Number of paragraphs: |
12 |
Reasons For Decision
Application for Costs
1. This decision concerns an application on behalf of the respondents for costs pursuant to S99A of the Anti Discrimination Act 1998 (the "Act"). The application follows from the Tribunal’s decision to dismiss the complaint by the complainant after an inquiry.
2. In relation to the costs application both parties were represented, filed written submissions and oral submissions were made on 8 February 2008.
3. The complainant’s allegations against the respondents that they had discriminated against him based on race and/or incited hatred against him due to race were not substantiated at inquiry and the complaint was dismissed pursuant to S99(1) of the Act. The Tribunal is vested with powers to award costs pursuant to S95 and 99A of the Act.
Section 95 provides:
"Subject to sections 99A each party to an inquiry is to pay his or her own costs".
Section 99A provides:
"The Tribunal may make an order as to costs in relation to any inquiry or review before it if the Tribunal considers circumstances justify the order."
4. Justice Evans has recently canvassed the law relating to an award of costs in the Anti-Discrimination Tribunal in the State of Tasmania v Anti-Discrimination Tribunal (2008) TASSC 23. In particular he said at p6:
"The formulation, s99A, calls on the Tribunal to address before making an order for costs is whether it "considers circumstances justify the order". In Port Stephens Council v Sansom (2007) 156 LGERA 125, Spigelman CJ, Mason P, Beasley, Giles and Ipp JJA agreeing, at par51, said of the formulation "fair and reasonable" referable to a power to award costs, that it would be more accurate to describe it as calling for a judgment to be made, rather than a discretion to be exercised, although the evaluative process can be accurately described as conferring a wide discretion. For my part, I am comfortable with the use of the term "discretion" in this context. It has been so used for many years when describing the exercise undertaken when considering an order for costs.
In Oshlack v Richmond River Council (1998) 193 CLR 72, Gaudron and Gummow JJ, at par22, said of the Land and Environment Court Act 1979 9 NSW), S69(2)(b), which conferred a power to award costs, that:
"The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as ‘the subject matter and the scope and purpose’ of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to the ‘definitely extraneous to any objects the legislature could have had in view: Water Conservation and Irrigation Commission (NSW) V Browning (1947) 74 CLR 492 at 505’"".
5. In Sloey v State Transit (1999) NSWADT 40, Koppleman v Moore (2001) TASADT 02 and K v Office of the Director of Public Prosecutions and D J Bugg QC (2004) TASADT 01 the Tribunal has articulated matters to be taken into account when considering an application for costs. They include:
(i) whether the subject matter will impact on the community generally;
(ii) any imbalance between the parties;
(iii) whether or not proceedings can be characterised as malicious;
(iv) the conduct of the proceedings and whether such conduct lengthened the proceedings; and
(v) public interest factors.
6. The decision of State of Tasmania v Anti-Discrimination Tribunal makes it clear that the Tribunal must act judicially when considering whether to make an award for costs. This was the view also taken by the Tribunal in Coleman v Gourlay, delivered on 1 August 2006. The principles developed in Sloey v State Transit (1999) NSWADT 40, Koppleman v Moore (2001) TASADT 02, Buchanan v Lindisfarne RSL (2004) TASADT 02 and K v Office of the Director of Public Prosecutions and D J Bugg QC (2004) TASADT 01 assist the Tribunal when considering whether the circumstances of a particular case justify the award of costs.
7. Mr Mackie on behalf of the respondents submitted that there were a number of circumstances, which justified the making of an order for costs. Firstly that the complainant made false allegations against both respondents to the Anti-Discrimination Commissioner, lied to the Tribunal and generally misled the Tribunal. The Tribunal found that some of the evidence given by the complainant was misleading and could not have occurred as described by the complainant, specifically this relates to the complainant’s evidence which alleged conduct by the respondents at a time when the respondents were not known to each other which led to a finding that the Tribunal was not prepared to accept evidence from the complainant unless it was corroborated by independent and cogent evidence. The Tribunal accepts the submission that the complainant misled the Tribunal.
8. There is also merit to the further submission by Mr Mackie that the motives of the complainant were designed to cause distress to the respondents. There was evidence that the complainant believed the respondent, Mr Willis was responsible for frustrating the complainant’s building plans with the Hobart City Council. Further there was evidence that the complainant had approached the respondent, Ms Wilson on a number of occasions and told her that the claim was not about her but about Mr Willis and that he expected Mr Willis to lose his job. The complainant also suggested to Ms Wilson that if she sold him a portion of her land that he would discontinue the claim against her. This evidence led to another finding that the complainant had strong motivation to pursue a false claim against the respondents, to cause them distress, obtain some of Ms Wilson’s land and cause serious problems for Mr Willis.
9. The Tribunal accepts that the complainant held feelings of animosity towards the respondents, in particular, Mr Willis and as a consequence his motive in pursuing his claim culminated in at least some of the evidence from the complainant being false. The respondent’s conduct in responding to the allegations has been entirely appropriate throughout the proceedings and the Tribunal is satisfied that given the above matters the circumstances of the case justify an award of costs in favour of the respondents.
10. Mr Mackie made a further submission that if a costs order was made in favour of the respondents that the costs should be solicitor and client costs. It is rare for an order of solicitor and client costs to be made. In Law Society of Tasmania v Richardson (No. 2) (2003) TASSC 71 Crawford J. set out the principles applicable to such an award. At p6 he said:
"There must be some special or unusual feature in a case to justify the exercise of the discretion to order costs on a solicitor and client basis. Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400, 401; Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 at 254-257; connect.com.au Pty Ltd v GoConnect Australia Pty Ltd [2000] FCA 1148;(2000) 178 ALR 348 AT 360, 361; Crockett v Roberts [2001] TASSC 106. In Electrona Carbide Industries Pty Ltd v Baillieu Bowring (Tas) Pty Ltd B9/1987 at 2 it was said that the case should be "very special", relying for that proposition on Bartlett v Barclays Bank Trust Co Ltd (No. 2) [1980] Ch 515 at 547 and Bowen-Jones v Bowen-Jones [1986] 3 All ER 163 at 165.
What makes a particular case sufficiently special to justify other than the usual order has been discussed in a number of cases. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (supra) at 401, Woodward J thought it would be appropriate to award "solicitor and client" or "indemnity" costs whenever it appeared that a proceeding had been commenced or continued in circumstances where the applicant, properly advised, should have known that there was no chance of success. However, his Honour appeared to modify the force of that statement by adding that "in such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law". I would not make such a presumption in this case.
Subsequently, in Council of the Municipality of Botany v Secretary Department of the Arts, Sport, The Environment, Tourism and Territories (1992) 34 FCR 412 at 415, Gummow J rejected a requirement that an order of this character can only be made against an ethically or morally delinquent party. In J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch, Federal Court of Australia, 19 Feb 1993 unreported, at 5, French J said that it is not a necessary condition for the making of the order that there be established that there was a collateral purpose or some species of fraud. His Honour considered that the discretion could be enlivened if for whatever reason, a party persisted in what should have been, on proper consideration, to be a hopeless case.
The exercise of the discretion is of course, an unfettered one, although I have received guidance from a number of reported cases, including some to which I have not referred".
11. The Tribunal does not believe that such an order should be made. The matters dealt with during the inquiry essentially related to credit and whilst there may have been some insincere motives on the part of the complainant the Tribunal is not satisfied that there is a special or unusual feature, which sufficiently warrants such an order.
12. Pursuant to Section 99A, the complainant shall pay the costs of the respondents from the date of the complaint. Such costs shall be calculated on a party and party basis at 80% of the scale of fees presently allowed to counsel and practitioners under Part 1 of Schedule 1 of the Supreme Court Rules 2000.