Andrews v Australian Rail Tram & Bus Industry Union

Relevant principles

1. The usual position is as stated in s60(1). Any departure from this general position requires the party making the application to demonstrate the Tribunal should depart from what is termed as the 'usual rule' (see s60(3); Curwood Homes Pty Limited v Spiteri [2015] NSWCATAP 48 at [18]).
2. 'Special circumstances' are circumstances out of the ordinary but not necessarily extraordinary or exceptional; Younan v Commissioner of Fair Trading (No. 2) [2016] NSWCATOD 60 at [7].
3. In determining an application for costs the Tribunal must weigh whether those circumstances are sufficient to amount to 'special circumstances' which justify the departure from the usual rule that each party bear its own costs. (See Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Limited v Commissioner of Police, NSW Police Force [2018] NSWCATAD at [37] citing Obieta v Australian College of Professionals Pty Limited [2014] NSWCATAP 38 at [81]).
4. When considering an application for costs the Tribunal is to take into consideration the guiding principle as set out in s36 of the CAT Act.

Costs decision 'on the papers'

1. Pursuant to s50(2) of the CAT Act the Tribunal can determine an application on the papers. In accordance with that provision the parties consented to the Tribunal proceeding to determine the matter without further hearing.

Written submissions

1. Each party has filed written submissions in relation to the costs application. The RTBU essentially seeks to rely upon s60(3)(c) and (e) of the CAT Act. In doing so the RTBU contends that at no time during Ms Andrews' employment with the Rail Authority, did she consider the RTBU had acted in a discriminatory way towards her. As noted at paragraph [19] of the Decision, Ms Andrews as recently as 1 March 2017 was positively flattering towards the RTBU and the members of its staff. It was not until her retirement dinner in 2018, at paragraph [27] of the Decision, that Ms Andrews says she formed a basis for a contention that the RTBU's conduct towards her was influenced by her race, gender or disability.
2. Putting aside the complexities of pleading a case of unlawful discrimination, when looking at the complaint and the points of claim filed in the proceedings, the only reasonable view that can be formed is that the approach taken by Ms Andrews was a 'scatter gun' approach as referred to in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAB 29 at [39] to [40].
3. The RTBU costs exceed $30,000 but it seeks an order that Ms Andrews pay its costs in an amount fixed at $25,301.56, within 28 days of the order, or, in the alternative, that Ms Andrews pays its costs in amount agreed or, failing agreement, as assessed.

Ms Andrews' response to the application for costs

1. Ms Andrews filed written submissions in response to the RTBU's application for costs. She draws to our attention the Tribunal's jurisdiction is ordinarily a no costs jurisdiction. She contends that the RTBU was well aware she was representing herself and questioned the use by the RTBU of a lawyer and a barrister in defending the matter which has resulted in significant costs incurred by the Union. She says that the RTBU's decision to employ the services of a solicitor and barrister was 'unnecessary' and also 'extravagant'. She goes on to state: 'It is clear now how hypocritical the RTBU are in regards to payment for legal services. The RTBU claim to be a non-profit organisation, and yet they have, or will, happily pay for the services of another lawyer and a barrister, but would not allow me, at the time an innocent financial member, the same courtesy, even when the RTBU already has a legally trained employee on the payroll.'
2. Ms Andrews submits that the RTBU should not succeed in its application for costs and makes some criticism as to the late service of submissions with respect to the application for costs.

Consideration

1. As set out in the Decision, notably at paragraphs [56] and [57], [59] and [60], we have found that Ms Andrews' claim was entirely misconceived and lacking in substance. It had no tenable basis in fact or law and was for those reasons dismissed. We took into consideration the fact that Ms Andrews was not legally trained. Her points of claim were therefore not articulated in a form that would be expected of a legal practitioner. Despite the lack of particularity of the claim, the evidence brought in the substantive proceedings failed to prove and establish that she was the subject of 'less favourable treatment' in relation to the alleged benefit or service provided to her by the RTBU. The evidence also did not support Ms Andrews' claims that the RTBU refused or failed to provide a service to her in a particular way.
2. Having considered, particularly the matters set out in sections 60(3)(c) and (e), we are satisfied that there are special circumstances warranting an award of costs. We do not need to find that the special circumstances are extraordinary or exceptional (Younan v Commissioner of Fair Trading (No. 2)). We find that due to Ms Andrews' claim having no tenable basis in fact or law and being otherwise misconceived or lacking in substance, that the RTBU should be entitled to an order for costs.
3. We have considered the RTBU's submissions that costs of the proceedings are in excess of $30,000. However, the RTBU seeks an order for costs in costs in a fixed amount of $25,301.56. We are not satisfied that we should undertake a costs assessment exercise, despite having considered the matters set out in 203 Castlereagh Street Pty Limited.
4. Ordinarily, the Tribunal is a no costs jurisdiction (s60(1) CAT Act). However, for the reasons set out above, we have found there are special circumstances which warrant a costs order being made in favour of the RTBU pursuant to s60(2) of the CAT Act. To balance the interest of the parties, namely NCAT being a no costs jurisdiction, our finding concerning 'special circumstances' and to bring the proceedings to finality, we find that the respondent's legal costs should be fixed in an amount of $5,000.
5. The order of the Tribunal is that the applicant is to pay the respondent's costs fixed at $5,000 plus GST.

Orders

1. The Tribunal orders as follows: 1. A hearing of the respondent's costs application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act, 2013. 2. The applicant is to pay the respondent's costs in the amount of $5,000 plus GST pursuant to s60(2) of the Civil and Administrative Tribunal Act, 2013.

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: 07 December 2021