Bignell v NSW Casino Control Authority & Anor

COUNSEL : Ms S Winters (Plaintiff) Ms C Ronalds (First Defendant) SOLICITORS : Ms S Winters (Plaintiff) Ms M Tregurtha - Crown Solicitor ( First and Second Defendants) CATCHWORDS : Costs - appeal from Equal Opportunity Tribunal - statutory test to be applied in determination of costs Sections 114,118 Anti-Discrimination Act 1977 (NSW) LEGISLATION CITED : Section 111,155 Casino Control Act 1992 (NSW) Section 117 Family Law Act 1975 (Cth) Penfold v Penfold (1980) 144 CLR 311 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 505 Absolon v TAFE [1999] NSWCA 311 CASES CITED : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 661 Wu Shan Liang v Minister for Immigration (1996) 185 CLR 258 at 272 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 273 R v Associated Northern Collieries (1910) 11 CLR 738 at 740 DECISION : Summons dismissed.; Each party pay their own costs.

• 7 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

27 SEPTEMBER 2001 30127 of 1997 MARYANNE BIGNELL Plaintiff

NEW SOUTH WALES CASINO CONTROL AUTHORITY First Defendant

1 This is an appeal from a decision of the Equal Opportunity Tribunal in relation to costs. Costs before the Tribunal are provided for in s 114 of the Anti-Discrimination Act 1977 Act, which provides: 114(1) Except as provided by section 111(2) and subsection (2) each party to an inquiry shall pay his or her own costs.

114(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

2 The appeal is brought pursuant to s 118 of the Act as it was at the time of the Tribunal's decision.

3 The plaintiff lodged a complaint of marital status discrimination with the President of the Anti-Discrimination Board against the Authority. The complaint concerned the Authority's decision not to grant the plaintiff a "special employees" licence so that she could be employed at the Sydney Casino. The Authority asserted to the President that s155 of the Casino Control Act 1992 prevents the Anti-Discrimination Board and the Equal Opportunity Tribunal from reviewing, or hearing an appeal against a decision of the Authority. The President did not accept the Authority's assertions, but referred the complaint to the then Equal Opportunity Tribunal to conduct an inquiry into the complaint.

4 The Authority applied to have the complaint dismissed pursuant to s111(1) of the Act on the ground that the Tribunal lacked jurisdiction to entertain the complaint. By a decision dated 15 September 1997 the Tribunal ruled that it did have jurisdiction to conduct an inquiry into the complaint. The Authority appealed from the Tribunal's decision to the Supreme Court. That appeal was upheld by his Honour Acting Justice Black on 22 May 1998. The plaintiff appealed from that decision to the Court of Appeal and by a decision dated 15 March 2000 that appeal was upheld. The decision of Black AJ was set aside, and in lieu the Court dismissed the Authority's appeal to the Supreme Court.

5 After the Tribunal rejected the Authority's application that the complaint be dismissed on jurisdictional grounds on 15 September 1997, the plaintiff made an application for costs of the proceedings before the Tribunal. That application was heard on 10 December 1997 and was dismissed. The Tribunal ordered each party pay their own costs. It is that order for costs that is the subject of this appeal. The plaintiff appealed from that costs decision to the Supreme Court and filed a notice of motion seeking orders that the costs appeal be heard together with, but following the hearing of the Authority's appeal of jurisdictional issue. Those orders were made on 10 February 1998.

6 The hearing of the jurisdictional appeal extended over a number of days and the parties agreed not to proceed with the costs appeal pending the outcome of the Authority's jurisdictional appeal. As a result of that appeal being upheld by Black AJ but subsequently appealed to the Court of Appeal, the present costs appeal remained in the Holding List pending the decision of the Court of Appeal. The complaint of discrimination on the ground of marital status in the area of employment is pending before the Administrative Decisions Tribunal, the successor to the Equal Opportunity Tribunal.

7 It is not in contention that the appeal is limited to questions of law. The errors of law alleged are that the Tribunal misdirected itself as to the statutory test to be applied in determining the plaintiff's application for costs, that it failed to take into account relevant considerations, and that it took into account irrelevant considerations.

The Tribunal's Reasons 8 The Tribunal member stated in the Tribunal's reasons, "There was nothing in the conduct of either party in this case to cause the Tribunal to depart from the general principle of s 114." He went on to say, "I note of course that s114 has to be read subject to sub-section 2 but sub-section 2 requires that there be some circumstances in relation to the case that justify the making of an order. There must be something about the case, something about its length, its difficulty, it significance or what - have - you which justifies the Tribunal in departing from 114."

9 The Tribunal went on to say a few moments later, "The Tribunal is, under sub-section 2, given power to depart from that provision if something is demonstrated in relation to the nature of the case or the circumstances in which it is being conducted. I confess, listening to the arguments, that I have not found anything in the nature of this case, the way it was conducted, circumstances in which it arose or such like, to justify departing from the principle laid down in s 114(1) so that the decision of the Tribunal is that there will be no order as to costs."

The Plaintiff's Challenge to the Tribunal's Reasoning 10 The core of the plaintiff's argument is that the Tribunal applied s114(1) as a rigid rule or principle. It assumed that only in an extreme case would justify the Tribunal making an order for costs. In support of this argument the plaintiff relied on the authority of Penfold v Penfold (1980) 144 CLR 311 where the High Court considered a similar provision (s117) in the Family Law Act 1975. The majority stated that s117(1) expresses a general rule, provided that it is firmly understood that the sub - section is not paramount to s117(2). As sub - s (1) is expressed to be subject to sub - s (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

11 The High Court disagreed with the test applied in the decision under review before it that it was only in a "clear case" in which s117 (2) was invoked.

12 Penfold was applied by the Court of Appeal in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497. In the context of discussing Penfold's case at 505 F Kirby P stated "An applicant for costs was under no obligation to show a 'clear case' for an order for costs".

13 In the present case the passages from the Tribunal's decision set out earlier in these reasons and phrases such as the "power to depart" point, the plaintiff argues, to the Tribunal treating s 114 as paramount. The plaintiff also contends that the Tribunal failed to consider all the circumstances to see whether they justified the making of an order for costs.

14 Misconstruction of the statute in the manner submitted by the plaintiff would amount to an error of law in coming to a decision which would directly vitiate it as being legally wrong and reversible. The error being of the kind discussed in Absolon v NSW TAFE [1999] NSWCA 311 at para 67.

15 In the context of this case the Court has to decide whether the Tribunal applied the wrong test. If it did so then the proceedings should be remitted back to it to be decided in accordance with law. It is this course that is urged upon the Court by the plaintiff.

Discussion and Conclusions 16 In the Court's opinion the phraseology used in the tribunal's reasons is of the kind referred to in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The Court is not to be concerned with, "looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts." In that case the Court went on to say, "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error:" (287.3). Pozzolanic Enterprises was cited with approval in Attorney-General(NSW) v X (2000) 49 NSWLR 653 at 661.5 when discussing the issue of a question of law or fact.

17 The Tribunal's short judgement taken as a whole, indicates that the Tribunal was properly considering the relationship between the two sub-sections of s114. The word "principle" in the context as described by the Tribunal does no more than communicate that it is a general rule and that s114(2) provides a limited exception. The use by the Tribunal of the phrase, "what-have-you" indicates to the reader that the Tribunal is referring in a compendious way to the matters referred to in sub-section 2.

18 The Court is not persuaded that the Tribunal misconstrued s 114 and applied the wrong test in considering the costs application. This is both on the "clear case" argument and the contention that the Tribunal misconstrued s114(2) to require that there be "something about the case, something about its length, its difficulty, its significance or what-have-you which justifies the Tribunal in departing from s114(1)".

Error of Law - Relevant and Irrelevant Considerations 19 The plaintiff contends that the Tribunal failed to take into account relevant considerations, and that it took into account irrelevant considerations. It is not in issue that to do so would amount to an error of law. The defendant argues that any errors in the reasons are errors of fact.

20 The Tribunal's powers in considering 114(2) were wide. It might make such order as to costs as it thought fit where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so. It gave short extempore reasons for its decision on costs. It is the adequacy of these reasons that comes under scrutiny.

21 Paraphrasing the words employed by the High Court in Wu Shan Liang v Minister for Immigration (1996) 185 CLR 258 at 272.3 the Court has considered the Tribunal's decision without being "over-zealous" by seeking to discern inadequacy from the way in which the reasons are expressed.

22 The adequacy of a decision makers reasons was discussed by Justice Powell in Absolon's case (supra) at para 66: Although there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions…it seems to be accepted that, at least in relation to administrative tribunals which, by the statutes creating them, are required to give reasons for their decisions, it is appropriate to apply the rules - and, in particular, the rules relating to the giving of reasons - which are ordinarily to be regarded as an incident of the judicial process. 23 Justice Powell referred to a decision of Mahoney JA, Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, 273 where his Honour said: There is, I think no formula the application of which to the instant case will indicate what, in that case, the judge must do…And, in my opinion it will ordinarily be sufficient if, - to adopt a formula used in a different part of the law: see R v Associated Northern Collieries (1910) 11CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline of the constituent facts of the reasoning on which he has acted. 24 Applying the above guidance this Court considers that any mistake in the reasons is a mistake as to finding based on reasons that are not felicitously expressed. In a sense this Court is being asked to revisit the merits argument before the Tribunal.

25 The Court is not persuaded that the Tribunal was fettering its discretion by identifying certain matters such as length, difficulty and significance of the case. These appear in the reasons as illustrative of relevant considerations.

26 The Tribunal incorporated all of the submissions of the parties by noting that it had "listened" to the arguments of the parties.

27 No question of law is raised by these matters. The plaintiff has not demonstrated any error of law on the Tribunal's part.

28 The defendant is entitled to have the Summons dismissed.

Costs 29 The Court has already noted the reasons for the Tribunal's decision were not felicitously expressed. This led to the challenge by the plaintiff. The Court considers the appropriate order for costs in these circumstances is that each party bear their own.

Orders 30 The Court orders:

1. Summons dismissed
2. Each party pay their own costs.

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