The facts giving rise to this application were that it was alleged that on 15 November 2017 a conversation occurred between Mr Daniel Comensoli and Ms Julie Passas concerning a large rainbow flag that had been hung over balcony balustrades by Mr Comensoli at his unit to celebrate the 'yes' vote in the same-sex marriage postal vote. Mr Comensoli alleged that Ms Passas made homophobic statements about the flag and that there were subsequent incidents of homophobia or unpleasantness. Ms Passas denies any homophobic or unpleasant conversation or other conduct.
Mr Comensoli posted an item on his Facebook page about these events, which were reported that same day in various newspapers, including the Daily Telegraph and the Sydney Morning Herald.
In reliance on the Facebook post and newspaper reports, Mr Burns lodged a complaint with the Anti-Discrimination Board ('ADB') on 27 November 2017. The proceedings were referred to the NCAT, evidence was filed and served and the matter was listed for hearing.
On the day of hearing, 28 May 2018, the respondent sought that the application be dismissed on the basis that Mr Comensoli had made his own complaint to the ADB. The respondent argued that if the application of Mr Burns proceeded, the respondent could be exposed to having to meet the same case twice at different times, with potentially the same witnesses and same allegations, that there would be duplication and that having separate hearings was contrary to the guiding principle of the Tribunal as set out in s 36(1) of the CAT Act, namely the "just, quick and cheap" resolution of the real issues in dispute.
The Tribunal heard argument as to whether or not the hearing of the matter should proceed on that day. During that hearing, and subsequently in his written submissions, the costs respondent, Mr Burns, says that he was unaware that Mr Comensoli had filed his own complaint until the day of hearing, when the respondent's solicitor so advised the Tribunal.
Mr Burns sought that the hearing proceed, on the basis that the Act permitted more than on complaint based upon the same facts, that it was unclear whether the complaint of Mr Comensoli would be referred to NCAT and that there was a public interest in determination of the issues raised in the proceedings he had commenced.
The Tribunal determined that Mr Burns' application should be adjourned until it was clear whether the complaint of Mr Comensoli would be referred to the Tribunal and, if so, that as the two complaints appeared to arise from the same facts, it was desirable that the two complaints be heard either consecutively ("back to back") or together. The hearing on 28 May 2018 was vacated.
Subsequently Mr Burns wrote to the Tribunal stating that he wished to withdraw his application in light of Mr Comensoli having filed a complaint with the ADB arising from the same facts.
On 29 June 2018, both Mr Burns' application and Mr Comensoli's application came before the Tribunal for directions. The respondent was advised that Mr Burns had written to the Tribunal advising that he wished to withdraw his application. That application was not opposed and Mr Burns' application was dismissed on 29 June 2018.
[2]
Costs Decision 'on the papers'
On 27 August 2018 the respondent wrote to the Tribunal requesting an order for costs of the proceedings. The parties agreed that the application for costs could be determined on the basis of written submissions.
On 31 August 2018 the Tribunal ordered that the respondent (costs applicant) file and serve written submissions in support of her application for costs, clearly identifying the "special circumstances" relied upon. By 14 September 2018 the applicant (costs respondent) was to serve submissions in reply. Both sets of submission were filed as ordered
I am satisfied, as required by s 50(2) of the CAT Act, 2013 (NSW), that the application for costs can be determined by considering the written submissions and other material filed in the Tribunal. A determination of this issue 'on the papers' is consistent with the "just, quick and cheap" resolution of the real issues in dispute as set out in s 36(1) of the CAT Act.
[3]
Written submissions
The parties have each filed written submissions in relation to the costs application.
The respondent in the substantive proceedings was the costs applicant (and will be referred to in these reasons for decision as the 'costs applicant'). The costs applicant filed written submissions setting out the history of the matter and stating that:
1. although the costs applicant had not sought costs at the hearing or within 28 days of the hearing, as the Guideline for the Administrative and Equal Opportunity Division states ought to be done, and had made such application on 27 August 218, this ought to be overlooked as the reason for the delay was that Ms Passas, Deputy Mayor of the Inner West Council, was seeking payment of her costs by the Council and only made her application to NCAT for costs when that application was refused.
2. The costs applicant's costs, prepared on an indemnity basis, are $3,457.00 pursuant to a tax invoice appended and dated 27 April 2018 and a tax invoice dated 5 July 2018 in the sum of $ 3,088.00, a total of $6545.00.
3. That if the Tribunal was not minded to order costs on an indemnity basis, that costs be awarded "on a party-party- basis as agreed or assessed."
The costs applicant submitted that for the purposes of s 60 (3) of the CAT Act, the following matters constituted "special circumstances" warranting an order for costs:
1. That the applicant brought the proceedings and withdrew them at an advanced stage and "failed to prosecute" them;
2. That the applicant "failed to adequately consult with Mr Comensoli, who was a witness in his proceedings and whose statements the Applicant had filed and served in the Tribunal, resulting in duplication of the proceedings.
3. That the Applicant filed extensive material of an historical nature seeking to establish that the respondent had a history of homophobia, including in connection with her holding public office, which was denied by her,
4. that this material was not relevant and significantly increased the respondent's costs and that;
5. after such material had been responded to, the applicant advised the Tribunal that he no longer intended to press the historical allegations.
The costs respondent (applicant in the substantive proceedings) states in his submissions that:
1. he initiated his application against the respondent in the public interest,
2. that it was only on the date set for hearing that he learned that Mr Comensoli had filed a complaint sometime after his complaint was filed,
3. that he withdrew his application to save costs, so there would not be a duplication of proceedings, causing costs to rise;
4. that he conducted himself within the rules and the law;
5. as Campbell J stated in Burns v Corbett (2018) NSWSC 1347 at [12] "the Court is obliged to have regard to "the chilling effects" of a costs order made against an individual complainant who "makes a complaint in the public interest in a jurisdiction that seeks to protect and provide observance of fundamental human rights: Tu v University of Sydney (No 2) (2002) NSWADTAP25 at [39]."
6. each party should bear his or her own costs.
[4]
Consideration
The costs applicant's arguments relied on ss 60(3)(a),(b) and (g) only. The Tribunal can therefore assume that there is no argument by the costs applicant that any of ss 60(3) (c), (d), (e) or (f) were engaged in any argument as to whether there are 'special circumstances' justifying a departure from the costs regime set out in s 60(1) of the CAT Act.
[5]
Significance of lack of merit determination
This matter did not progress to a determination on the merits. The Tribunal will not, therefore have regard to the relative strengths of the claims made by each of the parties, as set out in s60(3)( c ): Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD at [35], [55].
[6]
The duplication argument
It was argued by the costs applicant that the costs respondent had failed to sufficiently "co-ordinate" with Mr Comensoli, resulting in the two sets of proceedings being advanced, and leading to "duplication".
The costs respondent stated, both at the date set for hearing and in his written submissions, that until the costs applicant advised of it at the commencement of the hearing, he was not aware that Mr Comensoli had lodged a complaint with the ADB. There was no evidence to the contrary and the Tribunal accepts that was the case.
There is no legal obligation on one complainant to "co-ordinate" with another and to inform any other person that a complaint has been lodged with the ADB. That is so even though Mr Comensoli is a witness in Mr Burns' proceedings. Whether Mr Comensoli chose to tell Mr Burns that he had lodged a complaint is not something for which Mr Burns can be held responsible.
On the other hand, in their submissions, the costs applicant stated that on 1 May 2018 the ADB wrote to Ms Passas enclosing two complaints made by Mr Comensoli, dated 22 March 2018 and 26 April 2018 respectively, the second alleging victimisation by Ms Passas.
Thus, the costs applicant was aware of the two complaints of Mr Comensoli from around 2 May 2018 and could have drawn this to the attention of the Tribunal and/or Mr Burns before the date set for the hearing of Mr Burns' matter. This was not done.
This ought to be taken into account in considering the argument of the costs applicant that Mr Burns ought to have co-ordinated more closely with Mr Comensoli and that a failure to do so ought to displace the usual rule as to costs in the Tribunal.
The reference to "duplication" needs to be more closely considered. If two complaints to the ADB arise from the same facts, it is possible that each of the two complaints may rely upon different evidence. It is also possible that different breaches of the Anti-Discrimination Act may be alleged. One complaint would not necessarily replicate the other.
Even if the separate complaints by two persons were identical, the Tribunal would be obliged to manage the two applications in accordance with the guiding principle of providing access to "just, quick and cheap" determination of the real issues in dispute, as set out in s36 of the CAT Act.
In this case, it appears from the submissions of the costs applicant that Mr Comensoli alleged victimisation in addition to any other breaches of the Anti-Discrimination Act. This means that his complaint is not precisely the same as that of Mr Burns. It is therefore not the case that the Comensoli application "duplicated" the Burns application, as claimed by the respondent.
Two complaints arising from the same facts can both proceed to a determination. In this case, the complaint of Mr Comensoli was not identical to that of Mr Burns, for the reason set out above. It was not the case that Mr Burns was obliged to withdraw his application once it became known that Mr Comensoli had lodged a complaint.
[7]
Did withdrawal of the claim warrant a departure from the usual rule as to costs?
If Mr Burns had sought to proceed with his claim, arguably would probably have been heard either immediately following, or together with, the claim of Mr Comensoli (assuming that was referred to NCAT). This possible way forward was indicated to the parties by the Tribunal on the date set for hearing, 28 May 2018.
In his written submissions, one of the reasons Mr Burns gave for withdrawing the application was that he sought to attempt to limit costs. It is quite possible that withdrawing the application would have reduced the possible length and/or complexity of the proceedings, given the other application.
It is also likely that the costs applicant would have had to prepare responses to Mr Comensoli's application to the ADB and possibly NCAT in relation to most of the allegations made in the Burns application, as well as any allegations that differed from those in the costs respondent's claim.
Withdrawal of the application has not been demonstrated to have significantly increased the burden of response on the respondent, given the existence of the other application. But for the other application, the hearing and determination of the application would have proceeded on 28 May 2018.
The Tribunal finds that withdrawal of Mr Burns' claim is not a matter that amounts to a "special circumstance" that justifies an award of costs in favour of the costs applicant.
The Tribunal is not satisfied that the costs respondent conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (for the purposes of s 60(1)(a)), or unreasonably prolonged the time to complete the proceedings (s 60(1)(b)) or otherwise amounts to a "special circumstance" as set out in s 60(1)(g).
[8]
The 'historical material.'
The respondent also seeks an order for costs of the basis that Mr Burns filed "extensive" material alleging earlier homophobic conduct by Ms Passas,(referred to here as 'the historical material') which was denied. The historical material was not relevant to the facts in issue. The concession made by Mr Burns on the date set for hearing, 28 May 2018 that he would not rely on that material, was an appropriate concession.
The Tribunal has considered the nature and extent of the historical material and the responses made to it by the costs applicant. The Tribunal has also examined that material and the fee notes of Ms Passas, Otto Stichter and Associates, annexed to the written submissions of the costs applicant.
The Tribunal finds that responding to the historical material was not so onerous as to constitute a 'special circumstance' sufficient to displace the general rule that each part pay the party's own costs as set out in s 60(1) of the CAT Act.
[9]
Significance of delay in making costs application
In view of the findings above, it is not strictly necessary to consider the delay in the application for costs. The Tribunal has had regard to the "real issues in dispute" in reaching a decision in relation to costs. However even if an application was being made to a local council for costs, as argued by the costs applicant, a costs application could also have been made to the Tribunal within 28 days of dismissal of Mr Burns' application on 29 June 2018 and an adjournment sought. This would have had the advantage of putting the Tribunal and other party on notice of the application. The delay in notifying the application (made on 27 August 2018) could then have been avoided and the other party would not have been caught by surprise by the application being made after the expiry of the 28 day period referred to in the guideline.
As stated in the Guideline issued by the Tribunal regarding costs in this division of NCAT, an application made more than 28 days after a hearing may amount to a procedural unfairness. It is not necessary to determine that issue in this case.
[10]
Indemnity Costs
Given the findings set out above, it is not necessary to determine whether, if an adverse costs order had been made, indemnity costs should have been ordered, but for completeness, the Tribunal finds that, on the basis of the principles set out in Mendonca v Tonna [2017] NSWCATAP 176 at [59] - [64], it would not have been appropriate to order indemnity costs.
[11]
Conclusion
The Tribunal is not satisfied that the costs respondent conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (for the purposes of s 60(1)(a)), or unreasonably prolonged the time to complete the proceedings (s 60(1)(b)) or otherwise amounts to a "special circumstance" as set out in s60(1)(g).
[12]
Orders
The Tribunal orders as follows:
1. A hearing of the respondent's costs application is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013.
2. Each party is to pay the party's own costs of the proceedings pursuant to s 60(1) of the CAT Act.
[13]
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: 19 October 2018
The usual position is as stated in s 60 (1). Where a departure from this position is sought the party making an application for costs has the onus of proving to the Tribunal that such a departure from the "usual rule" is warranted, by reference to the matters set out in s 60(3): Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at [18].
As stated in Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAD at [37]:
37. The Tribunal must "weigh whether those circumstances are sufficient to amount to 'special circumstances' that justify departing from the ordinary rule that each party bear their own cost.": Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. Even where special circumstances exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made (Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21], [24]."
'Special circumstance' are circumstances out of the ordinary but not necessarily extraordinary or exceptional: Younan v Commissioner for Fair Trading (No 2) [2016] NSWCATOD 60 at [7].
As stated recently in Bakir v Roads and Maritime Services [2018] NSWCATAD 69 at [18]:
18. The objects of the CAT Act at section 3 and the Guiding Principles at section 36 of the CAT Act are relevant to the interpretation of the "special circumstances": Chan v Commissioner for Fair Trading [2015] NSWCATAD 62 at [35] to [38]; BHR and BHS v Biripi Aboriginal (sic) Children's Services (No2) [2015] NSWCATAD 109 at [29]; Yammatree Pty Ltd (Applicant); North West Local Land Service [2015] NSWCATAD 221 at [12]- [13].
Relevantly, Section 36 of the CAT Act states:
36 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it:
a) exercises any power given to it by this Act or the procedural rules, or
b) interprets any provision of this Act or the procedural rules.