Anti-Discrimination Decisions

[2008] TASADT 08

Catchwords:

Costs - Dismissal of a complaint under s99, application for costs by Respondent on grounds of Complainant's non-compliance with Tribunal directions - Relevant considerations for the award of costs under s95, 99A - Anti-Discrimination Act 1998 (Tas) ss95, 99, 99A

Representation:

Reasons For Decision

Application for Costs

Introduction

1. This decision concerns an application on behalf of the Respondent (the Department of Health and Human Services) for costs pursuant to s99A of the Anti Discrimination Act 1998 (Tas) (the "Act"). On 25 June 2007 the Tribunal gave an oral decision, dismissing Mr Hadfield’s complaint and rejecting the Respondent’s application for costs. The Tribunal’s decision with respect to costs was appealed to the Supreme Court on behalf of the Respondent. In a decision of Justice Evans (State of Tasmania v Anti-Discrimination Tribunal [2008] TASSC 23) (21 May 2008) this appeal was upheld on the grounds that the Tribunal had taken into account an irrelevant consideration, namely, an imbalance of resources between the parties, the Tribunal having noted that the Respondent’s resources were greater as reflected by Mr Hadfield’s lack of legal representation. Justice Evans accordingly set aside the order made by the Tribunal as to costs and ordered that the matter be referred back to the Tribunal for determination according to law.

2. On 22 May 2008, the Tribunal received a letter from Mr Turner advising as follows:

· that the State does not seek to be heard any further (other than as set out in this letter);

· that the State repeats the submissions previously made in support of its application for costs;

· The State contends that the law is plainly set out in paragraph 25 of his Honour’s reasons viz ".. ordinarily circumstances personal to the parties, and an imbalance between the capacities and the resources of the parties, are not relevant to the exercise of the costs discretion. This is not to say that they could never be relevant."

The contention of the State is that neither the resources (or lack thereof) of Mr Hadfield and the State nor the personal circumstances of Mr Hadfield are relevant to the proper exercise of the discretion as to whether or not to order costs.

3. The Tribunal wrote to Mr Hadfield and invited him to provide a response in writing to the decision on the costs appeal and Mr Turner’s response. Mr Hadfield responded by letter dated 22 July 2008 requesting the opportunity to make oral submissions before the Tribunal. The matter was listed for 25 August 2008, however Mr Hadfield contacted the Tribunal on that morning advising that he had another appointment and would not be able to attend and sought an adjournment. Mr Hadfield was informed that he would have to attend as scheduled if he wished to make oral submission on the costs issue and reminded that the matter had been listed at his request. He advised he would not be attending and advised he would put his submissions in writing. A further letter was subsequently received by the Tribunal but contained no relevant submissions as to costs.

Background to the Decision

4. By way of background to this costs application, it is appropriate to briefly set out the history of this matter. Mr Hadfield’s complaint, which was lodged in July 2004 against Ms Viki Rundle and the Department of Health and Human Services, inter alia contained allegations that he had been treated less favourably on the basis of his gender, parental status, family responsibilities and further, that staff of the Respondent Department had made comments to Mr Hadfield that constituted offensive conduct on the grounds of his gender, parental status and family responsibilities.

5. The chronology of events according to the Tribunal file is as follows:

· On 11 October 2005 substantive directions were made for the first time about delivery of list of documents, witness statements, and the like. These directions were followed up in writing by letter from the Tribunal.

· On 22 November 2005 Mr Hadfield did not attend the next scheduled Directions Conference and the matter was rescheduled for 30 January 2006 at which time Mr Hadfield indicated his intention to apply for his two children to be interviewed by a psychologist or psychiatrist and for this to be put forward as evidence before the Tribunal. Mr Hadfield was advised that he should put this request in writing (at this point other directions were put on hold).

· The Directions Conference was to resume on 16 February 2006 but was rescheduled by the Tribunal due to Mr Hadfield’s non-compliance. The matter was rescheduled for 10 April 2006 (Mr Turner appearing via phone link) and oral submissions were made to the Tribunal, in addition to the written submissions received, on the issue of evidence from the children. It was set down for a return date of 29 June 2006 but Mr Hadfield sought an adjournment on the grounds that Mr Greg Barnes was now representing him. The matter was adjourned to 28 July 2006, at which time the Tribunal gave its decision, rejecting Mr Hadfield’s application for the children to be interviewed by a psychologist or psychiatrist. The matter was adjourned for Mr Hadfield to seek advice from his counsel and a further Directions Conference was scheduled for 24 August 2006. At that Directions Conference, further directions were made to the same effect as previously concerning relief sought, documents to be relied upon, witnesses and the need for witness statements. Again, these directions were confirmed in writing by the Tribunal. The matter was set down for a further Directions Conference for 27 October 2006. On that occasion, Ms Rundle was deleted as a party to the proceeding. At that time, Mr Hadfield wanted the children to be added as what he described as co-complainants. This was rejected by the Tribunal and the children’s names were formally deleted from the complaint. A new timetable for compliance with the Tribunal’s Directions was set and this was followed up in writing by letter from the Tribunal.

· On 31 October Mr Turner wrote to Mr Hadfield advising that an application for dismissal of his complaint would be made by reason of him failing to comply with the Tribunal’s orders. Again, on 27 November Mr Turner indicated his intention to so apply.

· On 4 December 2006 as there still had been no effective compliance (although some modest steps had been taken by Mr Hadfield), further directions were made for Mr Hadfield to comply with. These directions were confirmed in writing by the Tribunal. A further Directions Conference was held on 1 February 2007 during which Mr Hadfield raised the possibility that he may be able to organise legal representation through Legal Aid. This was challenged by Mr Turner and he sought to bring an application for the dismissal of Mr Hadfield’s complaint due to his repeated non-compliance; some submissions were heard on this but it was not adjudicated on at the time as the Tribunal felt it should give Mr Hadfield the opportunity to try and organise legal representation and Mr Hadfield was accordingly given more time and the matter was adjourned.

· The matter came back before the Tribunal on 17 April 2007 by way of Directions Conference at which time the Tribunal went to considerable lengths to explain to Mr Hadfield what was required in order for him to comply with the Tribunal’s directions and also, importantly, what the consequences would be if he did not comply. In particular, it was made very clear to Mr Hadfield that this was his last chance and if he again unreasonably failed to comply, his complaint would almost certainly be dismissed. Whilst Mr Hadfield had in the meantime made some contact with the Tribunal indicating his intention to comply with the Tribunal’s directions, he did not in fact comply with those directions. The matter was relisted on 25 June 2007 to allow the Tribunal to hear submissions.

6. In short, there has been a history of non-compliance on Mr Hadfield’s part and he has repeatedly failed to produce the required responses to the Tribunal’s directions. For these reasons, the Tribunal resolved it appropriate to exercise its power to dismiss the complaint pursuant to s99 of the Act as the Tribunal had formed the view that Mr Hadfield’s case was misconceived and lacking in substance (s99(2)(a)) and further, pursuant to s99(2)(b), because ‘dismissing the complaint would .. be just and appropriate’ given Mr Hadfield’s repeated and prolonged non-compliance with directions.

Submissions before the Tribunal

7. At the last Directions Conference held on 25 June 2007, Mr Turner had made submissions on behalf of the Respondent Department with regard to costs in the event that the Tribunal was minded to dismiss the matter. He submitted that the proceedings had been protracted because of Mr Hadfield’s repeated delay and non-compliance. He asserted that Mr Hadfield had been abusing process and impugning the integrity of professional persons. Mr Turner further submitted that the Tribunal should take account of the mendacious way Mr Hadfield had conducted himself in these proceedings and argued that there was a difference between what Mr Hadfield asserts about procedural steps and reasons for non-compliance and what actually occurred.

8. With respect to quantum, Mr Turner submitted that costs should be awarded at 90% of the Supreme Court scale, and referred to the case of Trident Seafoods Pty Ltd v Marlene Dorothy Dransfield [1993] TASSC 87 (17 August 1993), decision of Zeeman J in support of this submission.

9. In response, Mr Hadfield acknowledged there had been delays but claimed that there were extenuating circumstances, including difficulties obtaining documents through freedom of information. He told the Tribunal he had been in and out of other courts with regard to related matters; he explained that he had thought that this other litigation would be over 18 months ago and stated that he had probably been ‘jumping the gun’ with his proceedings in this Tribunal.

The Legislation

10. The relevant provisions are section 95 and section 99A which provide as follows:

"95 Costs -

Subject to section 99A, each party to an inquiry is to pay his or her own costs."

"99A Order for Costs -

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."

11. Section 99A was inserted on 16 November 2004. Prior to that time s95 had provided as follows:

"95(1) Subject to subsection (2), each party to an inquiry is to pay his or her own costs.

(2) The Tribunal may make an order as to costs if it considers circumstances justify the order."

12. On 16 November 2004, s95 was amended to its present form, and s99A was added to the Act. These changes were part of a package of amendments that extended the power of the Tribunal to award costs to reviews of rejections and dismissals, and gave the Tribunal the power to require a complainant to pay security for costs. Notably, s99A continues the position previously contained in s95 (using the same wording that the Tribunal may make an order as to costs if it ‘considers that the circumstances justify the order’) but extending the power to order costs to reviews of rejections and dismissals; thus the substance of the section remains the same.

Tribunal’s Evaluation of the Complainant’s motive

13. One of the circumstances the Tribunal takes into account in an application for costs is the Tribunal’s assessment of the Complainant’s motive. The Tribunal does not accept the assertion made on behalf of the Respondent that Mr Hadfield has been ‘mendacious’ or that his approach in these proceedings has amounted to a deliberate abuse of process. Rather, it takes the view that Mr Hadfield has perceived that he and his children have been discriminated against and he has sought to redress this through the proceedings in the Tribunal, as well the proceedings in other jurisdictions.

14. It is true to say that Mr Hadfield has been somewhat misguided in his conduct of these proceedings with various applications made that proved fruitless (for example, to have the children independently examined and interviewed with a view to bring their evidence before the Tribunal; to have the children as parties to the proceedings), and further, that he has failed to comply with the most basic requirements for preparing a matter for inquiry. However, the Tribunal does not regard his conduct as amounting to vexatious behaviour or an abuse of process which would call for the Tribunal’s intervention through a costs order. Rather, the Tribunal would characterise Mr Hadfield’s conduct as misconceived, no doubt exacerbated by the fact that he is self-represented. Indeed, it is because of his lack of legal representation that the Tribunal has sought to be accommodating and patient with Mr Hadfield, and this has no doubt contributed to the fact that proceedings have been protracted.

15. It must be remembered, the effect of s95 of the Act is that whilst there is a power to make a costs order in an appropriate case under s99A of the Act, the general rule is that each party bear their own costs. This will be the case unless the court is satisfied pursuant to s99A that there are circumstances that justify the making of the order. Although, as noted, s99A is the product of amendments introduced in 2004, the amendments were not material to this issue, so consequently, Tribunal decisions predating the 2004 amendment remain relevant.

Supreme Court decision in State of Tasmania v Anti-Discrimination Tribunal and other case law

16. As Justice Evans noted in State of Tasmania v Anti-Discrimination Tribunal [2008] TASSC 23 (21 May 2008) the power to order costs is statutory and discretionary. Adapting a passage from the High Court decision in Penfold and Penfold (1980) 144 CLR 311, his Honour commented that it is an accurate description of s95 of the Act to say that it expresses a general rule that parties are to pay their own costs, provided that it is firmly understood that this rule is not paramount to the Act, s99A. His Honour went on to state (at paragraph 9):

"As s95 is expressed to be subject to s 99A, the former must yield whenever the Tribunal finds in a particular case that there are circumstances justifying the making of an order for costs."

A useful summary of the principles that can be drawn from this decision was set out by Tribunal member Michael Brett in the case of Cutler v Mayne and Department of Health and Human Services and Cutler v Martin and Department of Health and Human Services [2008] TASADT:

(a) Section 95 expresses a general rule that parties are to pay their own costs.

(b) However, that rule must yield whenever the Tribunal finds in a particular case that there are circumstances justifying the making of an order for costs.

(c) The power to award costs under these provisions can be distinguished from an unconstrained grant of power. The outcome of the proceedings will not have the same primacy that is accorded when exercising an unconstrained discretion as to costs.

(d) The power must be exercised judicially, and not arbitrarily, capriciously or so as to frustrate the legislative intent.

(e) The costs discretion must not be exercised on a ground unconnected with the proceedings. For example, the financial circumstances of a party, or an imbalance between the financial resources of the parties, will ordinarily not be relevant to the exercise of the discretion with respect to costs.

Other Relevant Tribunal Decisions

17. A review of these decisions, and case law from other Australian jurisdictions supports the proposition that in such Tribunal proceedings, parties will normally be expected to pay their own costs unless there are special circumstances justifying the making of a costs orders: see the decision of the Tribunal in Buchanan v Lindisfarne R & SLA Sub-Branch & Citizens Club and the Returned Services League of Australia Ltd (Costs) [2004] TASADT 02 which adopted the High Court reasoning in Penfold and Penfold (1980) 144 CLR 311 regarding the costs section (s117) in the Family Law Act 1975 (Cth); also Sloey v State of Transit (1999) NSWADT 40. In Sloey v State of Transit it was noted that s114(1) of the NSW Anti-Discrimination Act provides that the usual practice in the Equal Opportunity Tribunal (which was where, at the time, hearings under that Act occurred) ‘is that parties will be responsible for their costs.’ This was interpreted in Sloey v State of Transit as creating a ‘presumption’ which a party contending for costs must rebut, that each party pay their own costs.

18. In Sloey v State of Transit and the Penfold and Penfold, the provisions were further interpreted as requiring analysis of the relevant circumstances to determine whether there are circumstances justifying a costs order to be made, but expressly noting this does not entail any special onus for a party or the existence of ‘special circumstances’. This reasoning was endorsed by this Tribunal in the Buchanan v Lindisfarne RSL case, had rejected the argument put to the Tribunal that a costs order could only be made in ‘exceptional’ circumstances.

19. As was recently noted in the case of Di Benedetto v Wilson and Willis, Complaint No. 100-0601002, 30 May 2008, in Sloey v State of Transit, Koppleman v Moore ex parte Costs (2001) TASADT 02 and K v Office of the Director of Public Prosecutions and Bugg (2004) TASADT 01, the Tribunal has articulated matters to be taken into account when considering an application for costs and which are of assistance to the Tribunal when considering whether the circumstances of a particular case justify the award of costs. (The Tribunal had identified these factors in its originals costs decision; with the exception of the issue of imbalance of resources of the parties, there was no challenge to these factors, but they are included here for the sake of completeness.) They include:

(i) whether the subject matter will impact on the community generally;

(ii) any imbalance between the parties (such as an imbalance in the capacities or resources of the parties)

(iii) whether or not the proceedings can be characterised as malicious;

(iv) the conduct of the proceedings and whether such conduct lengthened the proceedings; and

(v) public interest factors.

20. There is nothing to suggest (i) applies and (ii) has been ruled to be irrelevant (Evans J in State of Tasmania v Anti-Discrimination Tribunal). Of the remaining matters, those which have potential relevance to this case are ‘whether or not the proceedings can be characterised as malicious’ and ‘the conduct of the proceedings and whether such conduct lengthened the proceedings’ which are dealt with below.

21. Further to the Tribunal’s conclusions above regarding Mr Hadfield’s motives, the Tribunal finds that the proceedings cannot be characterised as ‘malicious’. With regard to the issue of conduct and whether such conduct lengthened the proceedings, the Tribunal has found that the Complainant’s conduct, in particular his delay and non-compliance with directions made by the Tribunal, did lengthen the proceedings, and as noted, ultimately resulted in the dismissal of his complaint. However, the Tribunal has found that whilst Mr Hadfield has been misguided and ineffectual in his efforts to represent himself with this complaint, it has accepted that he has not acted vexatiously, or deliberately abused process which would call for the Tribunal’s intervention through a costs order.

Conclusion

22. In practice, costs orders have been made very rarely in this jurisdiction. Recent examples include Di Benedetto v Wilson and Willis, Complaint No. 100-0601002, 30 May 2008 where the Tribunal had found that the Complainant had misled the Tribunal; and Koppleman v Moore ex parte Costs (2001) TASADT 02 which involved a successful claim of harassment and subsequent victimisation, the Tribunal having accepted inter alia, that conduct by a respondent which is designed to discourage a complainant from pursuing a remedy under the Act for harassment is a relevant consideration, and justified the Tribunal considering whether in these circumstances a failure to award costs may compound the burden faced by complainants and operate as a disincentive to pursue these sorts of cases. There are many more examples, however, where the Tribunal has decided not to exercise its discretion to make a costs order (eg Cutler v Mayne and Department of Health and Human Services and Cutler v Martin and Department of Health and Human Services [2008] TASADT).

23. Although from the Respondent and counsel’s point of view (as indeed for the Tribunal), this matter has been protracted and frustrating to be involved in given the lack of progress, having carefully considered the relevant case law, as well as submissions before the Tribunal, the Tribunal takes the view that it lacks the features which would justify the making of a costs order. Whilst Mr Hadfield’s initiation and carriage of the complaint has been misguided and completely ineffective, there is nothing to suggest that he has deliberately acted in bad faith. Indeed, the Tribunal accepts that he has been motivated out of concern for his children and his desire to be reunited with them. In these circumstances, the general rule that each party should bear their own costs applies, as the Tribunal is not satisfied in this case that there are circumstances justifying the making of an order for costs.

24. The Tribunal has decided to make no order in respect of costs and Mr Turner’s application on behalf of the Respondent is accordingly rejected.