JOHNSTON v AINSLIE FOOTBALL CLUB LTD [2018] ACAT 130 | Case summary

The respondent provided a detailed written submission on costs dated 30 November 2018 and also filed a supporting statement by the solicitor on the record dated 30 November 2018. The applicant provided no substantive submissions about costs. The respondent seeks costs under section 48(1) of the ACT Civil and Administrative Tribunal Act 2008 (the Act) in a fixed sum, being indemnity costs of $93,334.79, or party/party costs of $60,000 (both inclusive of GST), or at the discretion of the Tribunal.[1]
Section 48(1) and (2)(b) of the Act states that parties will bear their own costs unless the Tribunal orders otherwise, and the Tribunal may order otherwise if it "considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application..."
The respondent referred to the case of Bell & De Castella and Rob De Castella's Smartstart for Kids Pty Ltd [2013] ACAT 66 (Bell case). In that case the Senior Member awarded costs against the applicant due to the manner in which they conducted their case, applying principles summarised as follows: "Unreasonable delay or obstruction can arise from the manner in which the party conducts their case and would encompass bringing an unmeritorious action, where the bringing of an action amounted to bad faith or abuse of process...."[2] The respondent referred to Rampala v The Owners - Unit Plan 1330 [2018] ACAT 35 where the Senior Member observed that costs could be awarded where the applicant "being duly on notice, insists on persisting with an application... that is so clearly without merit that the only intention or consequences is obstruction or delay..."[3] The respondent referred to Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 where the Presidential Member awarded costs against the applicant, but disagreed with the interpretation of the term 'obstruct' in the Bell case and stated it meant to "impede or hinder, to retard or to oppose... the objects of the ACAT Act".[4] In the case of Carew-Neill v Bower [2016] ACAT 54, also referred to by the respondent, the Senior Member awarded costs against the applicant because the applicant "knew, or ought reasonably to have known, that her application was lacking in substance... and that her refusal, until the day of the hearing to acknowledge that the respondent was not an appropriate party, amounts to unreasonable delay and obstruction...".[5]
The respondent submitted that the applicant's conduct during the proceedings warranted a costs order against him, including as follows: that he failed to provide the particulars of his claim before the hearing; he failed to adduce evidence about his disability before the hearing, his evidence during the hearing claiming that various elements of the respondent's evidence were fabricated; he failed to present evidence of a causal nexus between his disability and the issuing of the Notice by the respondent; the absence of evidence about his claim for damages and; his history of litigation in other matters.[6] The respondent points out that much of the reasoning and findings by the Tribunal in its decision about the substantive issue of discrimination in Johnston v Ainslie Football Club Ltd [2018] ACAT 104 supports the latter observations by the respondent. On this basis the respondent submitted that "there are circumstances of sufficient weight to justify departure from the prima facie approach under section 48(1) of the ACAT Act that each party bear their own costs."[7]

The Tribunal accepts that there are circumstances where the conduct of a party to proceedings results in a costs order against them, and some of those circumstances are illustrated in the cases referred to by the respondent as summarised above (refer to paragraph [4]). However, this is not one of those cases.
The Tribunal accepts that many of the issues raised by the respondent in regard to costs are fairly presented, for example, that the evidence about the disability alleged by the applicant was not fully presented until the hearing. However, the applicant's disability was established in the case, being in the form of a loss of mental function - the respondent also accepted this - being post-traumatic stress disorder, an acquired brain injury following a car accident, and anxiety. This disability in the Tribunal's view has to be considered in any determination about a costs order.
All of the cases referred to by the respondent involve applicants where there is no findings about loss of mental function by them. The disability of the applicant in this case is a critical distinguishing fact. Added to this is the fact that the disabled applicant was not legally represented. The applicant undoubtedly found the requirements of the proceedings challenging given these circumstances, and there were consequences for the respondent.
The Tribunal does not suggest that anyone with a loss of mental function can never be subject to a costs order against them. In this case however the applicant's motivation to pursue a discrimination case was triggered by the wrongful issuing of the Notice by the respondent, and the Tribunal also found that there were irregularities in the manner in which the respondent's staff dealt with the applicant.[8] Given these circumstances, the Tribunal dismisses the respondent's application for a costs order against the applicant.

JOHNSTON v AINSLIE FOOTBALL CLUB LTD

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Judgment (16 paragraphs)

JOHNSTON v AINSLIE FOOTBALL CLUB LTD (No. 2) (Discrimination) [2018] ACAT 130 (19 December 2018)

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Legislation Cited (1)