CEU v University of Technology Sydney

NCAT Administrative and Equal Opportunity|2016-08-19

The applicant represented herself until 9 June 2016
The mere fact that a litigant has exercised the right to represent herself in proceedings is not a bar to a finding of special circumstances, or to a costs order, if such a finding or order is otherwise justified.

4, 5. Pension, 'noblesse oblige'

The applicant's submissions under these headings appear were not clearly articulated. They appear to amount to an argument that a costs order should not be made, because the applicant is impecunious - being a single mother with a young child who has emigrated from Korea - and the University is an institution of financial substance. Impecuniousness might, in some circumstances, be a relevant factor. However, in this case her allegation is not supported by any evidence as to her assets, liabilities or income. I am unable to make any finding based on this allegation.
Even if I she is unable to meet a costs order, no attempt has been made to explain why her assets, liabilities and income excuse or explain the conduct complained of, or should otherwise dissuade the Tribunal from making a costs order which is justified by her conduct.
There is no basis for finding that a party should be disqualified from applying for its costs because it has substantial assets at its disposal, or that its application should for that reason be given less weight.

Consideration and findings

I am satisfied that special circumstances exist, because: 1. the applicant's claims that Health Privacy Principles were breached by the respondent were not tenable in fact; 2. the applicant unnecessarily prolonged the proceedings, by failing to comply with the Tribunal's orders of 17 November 2016 until 9 June 2016, when she was represented by counsel; and 3. by filing and serving voluminous documentation on 4 January 2016, 15 March 2016 and 4 April 2016 which did not comply with the Tribunal's orders, the applicant unnecessarily disadvantaged the respondent by forcing it to incur the costs of reading and advising on the material, in effect giving the respondent little alternative but to apply for dismissal of the proceedings.
A finding of special circumstances empowers the Tribunal, in the exercise of its discretion, to grant a costs order if it thinks fit.
For the reasons already given, I am not satisfied that the matters raised by the applicant in her submissions weigh against a costs order.
As indicated, the first basis for the finding of special circumstances was that the applicant's claims were untenable in fact. It cannot be said, however, that there was no evidence to support her allegations. She herself supported her allegations by her own eye witness accounts, albeit informally in part. In the events which have occurred, her account has not been accepted.
If a costs order were to follow whenever an applicant fails to establish allegations of fact central to her claim, there would be little difference between this costs scheme and that which prevails in Courts where costs follow the event. That is not the legislative intention behind section 60. A mere failure to establish factual allegations, without more, does not compel a costs order, even where special circumstances exist. The absence of any evidence to prove the facts on which a claim is based might do so, but that is not the case here.
The second and third bases for the finding of special circumstances were the applicant's failure to comply with the Tribunal's orders of 17 November 2016 until 9 June 2016, and her filing of voluminous material on 4 January 2016, 15 March 2016 and 4 April 2016, which did not comply with the Tribunal's orders. This put the respondent in the position where it did not know the case it had to meet, and presented it with little option but to apply for dismissal.
The applicant submitted that her failure to comply with the Tribunal's orders, and the nature of the documents she filed on those three dates, resulted from her lack of legal expertise and language skills. In circumstances where she has been enrolled in a degree course, requiring the completion of assignments in English, and having regard to the facility with language disclosed in her written submissions, I am not persuaded that a lack of familiarity with the English language explains her failure to comply with the Tribunal's orders, or her actions in filing the documents which she did.
Similarly, the choice to represent herself up to 9 June 2016 is not a matter upon which she can rely to evade a costs order which is otherwise appropriate. As Bryson J, sitting in the Court of Appeal, has observed in the context of the failure of a self-represented to comply with the orders designed to let the other party know the case it has to meet (Malouf v Malouf [2006] NSWCA 83 at [183]): Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers, or to retain none. ... Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the Court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. The compliant also have an entitlement to consideration, and their compliance should not be disregarded … by treating their opponent's obligation to comply with the Court's directions as less than important, or as superfluous. Procedural directions in this case, including Registrar Berecry's five directions to the appellant to file and serve his statements, were made so as to give reality to the opportunity to know in advance of trial the case which the respondents were to meet. ... There was nothing onerous in directing [the appellant] to reveal his evidence in chief in advance of trial. There are advantages in not complying with such directions, as one's opponent could prepare to meet the evidence if it were disclosed: if advantages are achievable by non-compliance, non-compliance is likely to occur.
In these circumstances, it is appropriate that the applicant pay the respondent's costs thrown away by her failure to comply with the Tribunal's orders of 17 November 2016 until 9 June 2016. Such costs are to include the respondent's costs of filing and appearing on its application for dismissal up to and including 9 June 2016 (notwithstanding the fact that the dismissal application was ultimately unsuccessful), including preparation, and its costs of considering, taking advice on and responding to the material filed by the applicant on 4 January 2016, 15 March 2016 and 4 April 2016, which did not comply with the Tribunal's orders.
Having regard to the 'underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs' (eMove at [48]), I am not persuaded that it is appropriate to extend the costs order beyond this.
The University has sought its costs on an indemnity basis. As the Appeal Panel observed in eMove at [59]: Indemnity costs are only awarded in limited circumstances. The discretion to do so must be the subject of careful reasoning (Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354) and caution should be exercised in making such an award: Leichhardt Municipal Council v Green [2004] NSWCA 341; Ng v Chong [2005] NSWSC 385 at [13].
The respondent submitted that the 'gravity of [the applicant's] conduct', described in detail in its written submissions, warranted such an order. It noted that the applicant had been put on notice by the Calderbank letter of 14 March 2016 that it might apply for such an order.
Generally speaking, factors justifying such a costs order on an indemnity basis include the following: 1. unreasonably refusing a genuine offer of settlement, 2. commencing or continuing a claim with no prospect of success, 3. abuse of process, or 4. serious misconduct or unreasonable conduct - for instance, by unnecessarily prolonging proceedings, making allegations of fraud or improper conduct without foundation, and behaviour which causes unnecessary anxiety, trouble or expense such as failure to follow proper procedure: Mendonca v Tonna [2017] NSWCATAP 176 at [60]-[64].
In this case, by failing to comply with the Tribunal's orders of 17 November 2015 until 9 June 2016, and by filing and serving voluminous documentation which did not comply with those orders on 4 January 2016, 15 March 2016 and 4 April 2016, the applicant unnecessarily prolonged the proceedings. By failing to adhere to the procedure ordered by the Tribunal on 17 November 2016, the applicant put the respondent to unnecessary trouble and expense. Those are factors which weigh in favour of a costs order on the indemnity basis.
I am persuaded, having regard to all the matters above, that it is appropriate to order the applicant to pay the respondent's costs, to the extent they are ordered to be paid, on an indemnity basis. The costs application will otherwise be dismissed. 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: 15 September 2017

REASONS FOR DECISION

In 2014 and 2015, the applicant was an enrolled student of nursing in the respondent university. On 22 June 2015, she complained to the University that it had breached a number of Health Privacy Principles in collecting and disclosing her health information. She was dissatisfied with the University's decision in relation to her complaints, and commenced these proceedings, seeking review of the University's conduct. On 13 March 2017, the Tribunal found that the University had not breached any of the Health Privacy Principles, and determined to take no further action.
The University later applied for an order that the applicant pay its costs of the proceedings, on an indemnity basis. The application is opposed. The University has filed and served written submissions in support of its costs application. The applicant has filed two sets of written submissions in opposition to it.
Section 60 of the Civil and Administrative Tribunal Act 2013 confers on the Tribunal power to award costs in certain circumstances, as follows. 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
As the section makes plain, costs in the Tribunal do not follow the event. To justify an order for costs, an applicant must first satisfy the Tribunal that there are 'special circumstances' warranting it. To establish special circumstances, 'it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional': Gaynor v Burns [2015] NSWCATAP 150 (overturned on different grounds in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3, but remaining a useful guide to the section); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
The matters to which the Tribunal may have regard in determining whether special circumstances exist are set forth in subsection (3). They include 'any other matter that the Tribunal considers relevant'.
If the Tribunal is satisfied that special circumstances exist, it has a discretion to award costs. It is not obliged to do so. As the Appeal Panel observed in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]: [T]he discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.

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Judgment (3 paragraphs)

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Cases Cited (10)

Cited By (8)