This decision concerns the respondent's application for its costs of the appeal lodged by the appellant from the internally appealable decision of the Tribunal, in the Administrative and Equal Opportunity Division, to dismiss her claim of disability discrimination under section 49L of the Anti-Discrimination Act 1977 (NSW) (AD Act).
We determined the appellant's appeal on 7 August 2024 by refusing to extend the time within which the appellant was to lodge her Notice of Appeal and dismissing her appeal: see FSO v Secretary, Department of Education [2024] NSWCATAP 154 (the Appeal decision).
We made this decision primarily on the grounds that the appellant's appeal lacked merit: see Appeal decision at [8].
In addition to making an order not to extend the time within which the appellant was to lodge her appeal we made:
1. an order, under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), prohibiting the disclosure of the name of the applicant and her children, on whose behalf the appellant had lodged the discrimination complaint that was the basis of the application that was before the Tribunal below (see order (3) in the Appeal decision); and
2. an order as to the costs of the appeal as follows:
(4) If the respondent seeks an order for costs, the following orders are made:
(a) The respondent is to file and serve an application for costs together with supporting submissions within 28 days of the date of this decision, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
(b) If the appellant opposes any application for costs made by the respondent, the appellant is to file and serve any submissions in response within 14 days of receipt of the respondent's submissions, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
(c) Any submissions in reply by the respondent are to be filed and served within 10 days of receipt of the appellant's submissions.
On 2 September 2024, the respondent provided his submissions on costs and consented to the matter being determined on the papers.
In his submissions, the respondent contended that there were special circumstances warranting an order for costs because:
1. the appellant's appeal was found to lack merit/substance;
2. inconsistent with the guiding principle in section 36(1) of the NCAT Act of the just, quick and cheap resolution of the real issues in her appeal, the appellant's approach was to place before the Appeal Panel 'voluminous' and 'unpersuasive and disorganised materials' and thereby thwarted the Appeal Panel's best endeavours to 'facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings': NCAT Act section 36(4); and
3. the appellant's failure to adhere to the practice and procedure of the Tribunal.
On 30 September 2024, the respondent provided a supplementary note in which he noted that, contrary to order (4)(b) above, the appellant had failed to provide any written submissions in response to those provided by the respondent. In his supplementary note, the respondent submitted that, in the circumstances, as his application for costs of the appeal was unopposed it should be determined on the papers.
On 1 October 2024, we made the following order:
1 By 11 October 2024, the appellant is to provide the Tribunal and the respondent with any submissions in response to the respondent's 2 September 2024 application for costs. In her submissions the appellant is to indicate whether she is of the opinion that the respondent's application for costs is suitable for determination on the papers and in the absence of a hearing.
The appellant has not provided any written submissions. This does not mean that the respondent has an automatic right to a cost order in his favour. Instead, as indicted in the submissions of the respondent, an application for costs is to be determined in accordance with the applicable law and the relevant established facts.
In this regard, we are satisfied that the issues for determination in the respondent's costs application can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal without a hearing and, we make an order accordingly, under section 50(2) of the NCAT Act, dispensing with a hearing on the issue of costs.
[2]
Background
The appellant's disability discrimination claim was brought by her on behalf of three of her school aged children. Each of the three school aged children has a disability and the appellant's claim related to the events that occurred at the children's school on 6 August 2021.
The Tribunal dismissed the appellant's claim on 2 May 2023.
The appellant's claim was heard over two days, on 16 September 2022 and 13 February 2023. The appellant was self-represented and appeared by AVL on the first day of hearing but did not enter an appearance on the second day of hearing.
On 2 June 2023, the appellant, on behalf of her children, lodged a Notice of Appeal seeking to appeal the 2 May 2023 decision of the Tribunal.
The appellant's appeal first came before the Appeal Panel (Principal Member Suthers) at a call-over on 30 June 2023. At this call-over the Appeal Panel made the usual orders for the filing and serving of evidence and submissions. In this regard the appellant was directed to:
2 … lodge with the Appeal Registry and give to the Respondent by 28 July
2023:
(a) All the evidence given to the Tribunal at first instance on which it is intended to rely;
(b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely;
(c) The Appellant's written submissions in support of the appeal; and
(d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing.
An order (order 3), in similar terms, was made for the respondent to provide, by 16 August 2023, his evidence, submissions and a typed transcript and sound recording of the hearing below, unless already provided by the appellant. And the appellant was directed (order 4) to provide any written submissions in reply by 25 August 2023.
The Appeal Panel also listed the appellant's appeal for hearing, by AVL, for half a day on 1 September 2023, commencing at 2.15 pm (order 5) and directed (order 6) that the issues as to whether the Appeal Panel should extend time for filing her Notice of Appeal, give leave to appeal on grounds other than a question of law, or allow fresh evidence is to be determined at the hearing of the appeal.
On 31 July 2023, Principal Member Simon, made an order, in chambers, extending the time within which the appellant was to lodge her evidence and submissions, by three days. And on 31 August 2023, by consent, Principal Member Simon extended the time within which the appellant was to lodge her written submissions in reply to 1 September 2023.
We heard the appellant's appeal on 1 September 2023. The appellant was again self-represented and appeared by AVL. The respondent appeared in person and was represented by senior and junior counsel and an instructing solicitor.
At the conclusion of the hearing, we reserved our decision. On 7 February 2024, the respondent made an application seeking an order for this appeal and other matters the appellant had before the Tribunal to be dismissed on the grounds of a settlement agreement having been entered between the respondent and the appellant's husband and father of the children.
In March 2024, the appellant opposed the respondent's dismissal application on the grounds that she had not been a signatory to the settlement agreement. The respondent did not press its dismissal application any further in so far as it related to this appeal, and we did not consider it in determining the appellant's appeal: see Appeal decision at [10].
As we have already noted, on 7 August 2024, we determined the appellant's application for an extension of time within which to lodge her appeal.
[3]
Relevant law
In proceedings (including appeals) before the Tribunal, the usual rule is that each party to proceedings is to pay the party's own costs: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) section 60(1).
However, section 60(2) of the NCAT Act provides that the Tribunal may award costs if and only if it is satisfied that there are 'special circumstances' warranting an award of costs. The word 'costs' is defined in section 60(5) of the NCAT Act to include:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
Section 60(3) of the NCAT Act sets out the following matters the Tribunal may have regard to in determining whether there are special circumstances:
(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.
Section 60(4) of the NCAT Act provides:
(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.
In summary, the accepted relevant principles to the application of section 60 of the NCAT Act are:
1. the usual rule is that a party is to pay his, her or its costs of the proceedings before the Tribunal;
2. the Tribunal's task is to determine whether there are special circumstances that warrant an order for costs in the proceedings: McDermott v Wang [2022] NSWCATAP 325 (McDermott) at [39];
3. special circumstances are circumstances that are out of the ordinary but need not to be those which are exceptional or extraordinary: Megerditchian v Kuurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11];
4. ultimately whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 at [57];
5. the onus is on the party seeking an order for costs to satisfy the Tribunal in the exercise of its discretion under section 60(2) that there are special circumstances warranting an order for costs in his, her or its favour: McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38];
6. the 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: McDermott at [41]; eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48];
7. a cost order is compensatory and not punitive: McDermott at [42];
8. the fact that a party is unsuccessful in his, her, they or its claim does not of itself give rise to special circumstances: Jubian v Clark (No 2); Clark v Jubian (No 2) [2016] NSWCATAP 153 at [29]; and
9. a decision to award costs pursuant to section 60(2) involves two discretionary decisions - the first being a decision by the Tribunal that it is satisfied that there are special circumstance warranting an award of costs and if being so satisfied, the Tribunal may then make an award of costs. That is, under section 60(2), a satisfaction that there are special circumstances does not mandate that an order for costs be made: Brodyn Pty Ltd v Owners Corporation - Strata Plan SNP 73019 (No 2) [2016] NSWCATAP 224 at [24].
[4]
Consideration
The essence of the respondent's submissions is that there are special circumstances warranting an award of costs in his favour because:
1. the appellant's appeal lacked merit/substance: NCAT Act section 60(3)(c);
2. the 'voluminous' amount of 'unpersuasive and disorganised' material the appellant had lodged in support of her appeal was inconsistent with section 36(4) of the NCAT Act: NCAT Act section 60(3)(g); and
3. the appellant's failure to adhere to the practice and procedure of the Tribunal: NCAT Act section 60(3)(g).
We will separately deal with each of the grounds which the respondent contends amount to special circumstances.
[5]
Appeal lacked merit/substance
In his submissions the respondent accepted that the appellant's failure to articulate a question of law in her Notice of Appeal did not of itself establish special circumstances.
As we noted at [34] of the Appeal decision, it is accepted that, where an appellant is not legally represented, the Appeal Panel is nevertheless required to consider, having regard to the grounds of appeal articulated by the appellant as to whether a question of law has in fact been raised. In this case, we found that no question of law was raised in the appellant's Notice of Appeal.
We agree with the respondent that a finding made in these circumstances does not amount to special circumstances.
However, the respondent went on to submit that our findings that each ground of appeal lacked merit (see at [8], [51], [62], [75] and [84] in the Appeal decision) 'overwhelmingly amounts to special circumstances warranting the exercise of the Appeal Panel's discretion to award the Respondent its costs of the appeal'.
The appellant's grounds of appeal were those set out at [4] in the Appeal decision as follows:
1. The evidence filed by the Applicant was not available to the Tribunal at the initial hearing, resulting in disadvantage to the Appellant.
2. The conduct of the Tribunal Member was dismissive at the initial hearing, prior to having considered the evidence of the applicant, indicating a bias towards the respondent.
3. The conduct of the Tribunal Member was unsupportive of an unrepresented Applicant, resulting in the Applicant being unable to attend the final hearing.
4. The Tribunal failed to take into consideration the decision of the Tribunal in FSO v Secretary Department of Education.
That these grounds of appeal failed to identify a question of law did not of itself mean that the appellant's application for leave to appeal on grounds such as those relied on by the appellant lacked merit.
In summary, grounds 1-3 of the appellant's grounds of appeal contended that she was disadvantaged (ground 1), dismissed (ground 2) and unsupported (ground 3) by the Tribunal when hearing her application, and in determining her application.
As noted by the respondent, we found that each of these grounds of appeal lacked merit. These findings were made primarily based on the transcript of the hearing before the Tribunal below. That transcript having been provided by the respondent, on 18 August 2023, in accordance with the orders made at the appeal call-over on 30 June 2023. We note that 18 August 2023, was two weeks before the hearing of the appellant's appeal.
In our view, our findings that the appellant's appeal grounds of having been disadvantaged (ground 1), dismissed (ground 2) and unsupported (ground 3) by the Tribunal below lacked merit, do not, of themselves individually or collectively give rise to special circumstance that warrant an award of costs in favour of the respondent.
As we have already noted, the appellant always has been self-represented in her claim before the Tribunal below and in her appeal. She is not legally qualified and at the time the appellant lodged her appeal she did not have a copy of the transcript or sound recording of the hearing before the Tribunal below. Yet, there was no dispute that at the commencement of the hearing before the Tribunal below, on 16 September 2022, the Tribunal did not have before it the material the appellant had provided in support of her claim. Nor was it disputed that the appellant did not enter an appearance on the second day of hearing on 13 February 2023.
While it was open for the appellant to obtain a copy of the recording of the sound recording of the hearing before the Tribunal below on these days, the cost of having these transcribed may have been prohibitive for the appellant. As we have noted above, at the 30 June 2023 appeal call-over the respondent was also directed to provide his evidence (including the sound recording and transcript of the hearing below) and submissions by 16 April 2023. In compliance with that order, the respondent provided his evidence (which included the transcript and sound recordings of the hearing before the Tribunal below) and submissions on 18 August 2023, which was two weeks before the hearing of the appellant's appeal.
We are not critical of the respondent, and we accept that the provision of the material complied with the order that had been made.
Prior to the hearing of the appellant's appeal on 1 September 2023, the respondent having lodged his Reply to Appeal together with his evidence and submissions did not seek to have the appeal dismissed on the grounds the appeal was lodged out of time or that it lacked merit. Instead, the respondent did not object to time being extended for the appellant to lodge her Notice of Appeal and went on to consent to time being extended for the appellant to lodge her submissions in reply.
Again, we are not critical of the respondent. However, as we have already noted, in our opinion, in the circumstances of this case, we are not persuaded that our findings that the appellant's grounds of appeal of having been disadvantaged (ground 1), dismissed (ground 2) and unsupported (ground 3) by the Tribunal below lacked merit, amount to special circumstances that warrant an award of costs in his favour.
The appellant's fourth ground of appeal had been a live issue before the Tribunal below in that it related to the concept of 'detriment' in that the appellant had contended before the Tribunal below that the decision of the children's school to have its School's Student Learning Support Officer (SLSO) attend a nearby athletics event, on 6 August 2021, had an adverse impact on her children's learning outcomes that day as the SLSO was not at the school to support them in achieving the outcomes set out in their respective personal learning support plan (PLSP): see Appeal decision at [93] and FSO v Secretary, Department of Education [2023] NSWCATAD at [107]. This contention of the appellant was based on an assertion that she had made in another application she had made under the AD Act involving one of her children: FSO (obo FSN) v Secretary, Department of Education [2023] NSWCATAD 15 (FSN). In that matter, the appellant asserted that there was an 'agreement' between herself and her husband and the school that their children would be supported by the SLSO in implementing their respective PSLP.
As we noted at [86] of the Appeal decision, the Tribunal's decision in FSN was made a month prior to the 13 February 2023 adjourned hearing of the appellant's claim in this matter before the Tribunal below. While the decision in FSN had been determined the transcript of the hearing on 13 February 2023 in this case makes it clear that the decision had not been published at that time, nor was it available to the Tribunal below.
The decision in FSN was subsequently published and appealed by the appellant: see Secretary, Department of Education v FSO (obo FSN) [2023] NSWCATAP 160 (FSN Appeal decision). The FSN Appeal decision was published after the appellant had lodged her Notice of Appeal. Hence, at the time the appellant lodged her appeal the issue of 'agreement' and 'detriment' remained live issues for the appellant.
At the hearing of the appellant's appeal in this matter, the appellant continued to contend that the Tribunal had failed to consider the decision of the Tribunal at first instance in FSN.
At [94] of the Appeal decision we found, on the material before the Appeal Panel (including the transcript of the hearing on 13 February 2023), that the Tribunal did not fail to consider the appellant's submissions to the extent they related to the concept of 'agreement' or 'detriment' as had been articulated by the appellant in FSN.
Again, having regard to the circumstances of this case, we are not persuaded that our finding that this ground of appeal lacked merit gives rise to special circumstance that warrant an award of costs in favour of the respondent. As we have noted, the appellant is not legally qualified and has been self-represented. The application of the provisions of the AD Act can sometimes be misunderstood by self-represented applicants with little legal knowledge. While this is not an excuse for proceedings to become prolonged, in this case, the evidence is that the appellant prosecuted her appeal in accordance with the timetable that had been made at the 30 June 2023 call-over. That is, there is no evidence of the appellant delaying the proceedings.
Accordingly, we are not satisfied that our findings that the appellant's grounds of appeal lacked merit amounted to special circumstances that warrant an award for costs.
[6]
Voluminous materials
The respondent submits that the appellant's insistence on placing before the Appeal Panel a 'voluminous' amount of 'unpersuasive and disorganised' material was a matter relevant to the Tribunal's consideration as to whether there were special circumstances warranting an award of costs: NCAT Act section 60(3)(g).
At no time did we describe the material relied on by the appellant in support of her appeal to be 'voluminous', 'unpersuasive' or 'disorganised'.
As we explained in the Appeal decision, at [16(1)], the appellant had lodged two large bundles of material in support of her appeal. We noted that this material primarily consisted of the material the appellant had relied on in her application before the Tribunal. As we have noted above, at the call-over on 30 June 2023, the applicant was ordered to provide all the evidence given to the Tribunal at first instance on which she intended to rely in her appeal.
While not as extensive, at [18(1)] of the Appeal decision we noted that the respondent had also provided a large A4 folder containing a copy of the material the appellant had relied on before the Tribunal below.
While the respondent may have done so because it was concerned about the form in which that material had been provided by the appellant, in our opinion, it cannot be said that, in this case, the material provided by the appellant was inconsistent with section 36(1) or (4) of the NCAT Act.
While we accept that where a party provides a 'voluminous' amount of 'unpersuasive and disorganised' material is a matter that may fall within section 60(3)(g) of the NCAT Act, in our view, for the reasons set out above, we are not persuaded that, in this case, the appellant having lodged two large bundles of material gives rise to special circumstances warranting an award of costs.
[7]
Failure to adhere to practice and procedure
We make a similar finding regarding the respondent's submission concerning the appellant's alleged failure to adhere to practice and procedure of the Tribunal by not providing him with a copy of an email exchange she had with the Tribunal Registry following the first day of hearing of her application before the Tribunal below.
In the Appeal decision at [17], we noted that this email exchange had not been considered in our determination of the merits of the appellant's appeal for the purpose of determining whether time should be extended for the appellant to lodge her appeal.
In the absence of any submissions to the contrary, we do not consider it appropriate to consider the contents of this email exchange in this application of the respondent.
This leaves the issue as to whether the appellant having communicated with the Tribunal Registry, without providing a copy of that communication, to the respondent constitutes a breach of the Tribunal's practice and procedure. As we noted in the Appeal decision, the communication pre-dates the date on which the appellant lodged her appeal and is not a communication that arises from the appeal. While the appellant's Notice of Appeal, as contained in the Tribunal's file, has this email exchange attached to it, this does not mean that the appellant had attached it. Hence, in our view it would be inappropriate for us to make such a finding. In any event, for the reasons we have given above, we do consider this to be a matter relevant to consider, under section 60(3(g) of the NCAT Act, as to whether there are special circumstances warranting an award of costs.
[8]
Has the respondent established special circumstances that warrant the award of costs?
For the reasons set out above, we are not satisfied that the respondent has established special circumstances that warrant and award of costs.
Based on this finding, it is unnecessary for us to consider whether we should exercise our discretion as to whether to make an order as to costs.
Hence, the general rule that each party pay its own costs continues to apply.
[9]
Conclusion and orders
For the reasons set out above we are not satisfied we are not satisfied that the respondent has established special circumstances that warrant and award of costs. Hence, the respondent's application for costs should be dismissed.
On basis of our findings above, we order:
1. Pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of the respondent's costs application is dispensed with.
2. The respondent's application for costs is dismissed.
[10]
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: 11 February 2025