Laycock v Commissioner of Police, NSW Police [2006] VCAT 299 | Case summary

REASONS FOR DECISION Introduction 1 In this case the Tribunal dismissed the applicant's complaints that his former employer, the Commissioner of Police, unlawfully discriminated against him on the ground of his disability at various times between September 2002 and March 2004. The Tribunal published reasons for its decision on 6 September 2006 (Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261). 2 The second and third orders made by the Tribunal on 6 September 2006 permitted the respondent to make an application for costs and set out a timetable for written submissions in the event that the respondent chose to pursue an order for his costs. The respondent has now made an application for costs and the parties have filed written submissions in accordance with the timetable set out in its earlier orders. 3 The Tribunal's power to make an order for the payment of costs is contained in s 110 of the Anti-Discrimination Act 1977 which provides as follows: (1) Each party to an inquiry is to pay his or her own costs, except as provided by this section. (2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such orders as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. 4 While this section establishes the presumption that each party must pay their own costs, it also gives the Tribunal a discretionary power to depart from that presumption when "there are circumstances that justify it doing so". There is a significant amount of case law in which the discretionary power to award costs in s 110 of the Anti-Discrimination Act has been considered. Some of the older cases can be confusing because prior to the re-numbering of parts of the Anti-Discrimination Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 the costs power was contained in s 114 of the Act. Many of the considerations which have guided the Tribunal in the use of its costs power were summarised in Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35: [21] An examination of previous cases where costs have been awarded in favour of an applicant suggests that as a general proposition a combination of circumstances is required in order to justify an award of costs. See, for example, Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No 2) NSWADT 252; Peck v Commissioner of Corrective Services (No 2) [2002] NSWADT 244; Gallagher ; V v Y & Anor; X v Y & Anor [2002] NSWADT 7 ; Duggan v Shore Inn Pty Limited (1993) EOC 92-483; Willis v State Rail Authority of New South Wales (No 3) (1992) EOC 92- 456; Holdaway v Qantas Airways Limited (1992) EOC 92- 430; Squires v Qantas Airways Ltd (1985) EOC 92-135. See also the Appeal Panel's remarks in Cleary at paras 86-87 [ Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001] NSWADTAP 10]. [22] In combination with other factors, the kinds of circumstances which have been regarded in previous cases as justifying the making of a costs' award include: Whether the applicant's costs exceed or are disproportionate to the amount of damages awarded ( Russell; Peck; V y Y & Anor; X v Y & Anor; Duggan; Willis; Holdaway; cf Nowland v TNT Skypak & Anor (1994) EOC 92-560). The manner in which the parties have conducted the proceedings (Russell; Peck; V v Y & Anor; X v Y & Anor; Duggan; Holdaway). Whether the case raises any important public policy or public interest considerations (Willis; Holdaway). Whether the proceedings determine or clarify an important question of law (Russell; Squires). [23] The circumstances listed above appear to reflect an overall concern that the substantial rights and protections conferred by the ADA should not be undermined by the cost of vindicating them. See, for example, Gallagher; Duggan . The list is not intended, however, to be an exhaustive account of the kinds of circumstances which may be considered relevant to a costs' award. 5 Costs orders are rarely made against unsuccessful applicants in anti-discrimination matters and an Appeal Panel has observed that "the sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved" (Tu v University of Sydney (No 2) [2002] NSWADTAP 22 at [42]). Practice Note 12, which was first issued by the President on 4 March 2003, sets out various circumstances that may justify making a costs order. One of those circumstances is "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". 6 Counsel for the respondent, Ms Eastman, relied upon this statement from Practice Note 12 in support of her arguments that a costs order should be made against the applicant. Ms Eastman submitted that "the inescapable conclusion is that the applicant's case lacked any tenable basis". 7 In his submissions in response to those made by the respondent, the applicant referred to the fact that he had received legal assistance from the NSW Police Association until he ceased being a police officer and a member of that Association. He went on to assert that "at no time in my exhaustive attempts to have the complaints resolved was any malice intended to the respondent". 8 If this was a jurisdiction in which we were obliged to apply the 'usual' costs rule - which is that the unsuccessful party should pay the costs of the successful party in the absence of any special circumstances - we would have no hesitation in making a costs order against the applicant because there are no relevant circumstances which would justify a departure from that rule. But the NSW Parliament has decided that the 'usual' costs rule should not apply in cases in the Equal Opportunity Division of this Tribunal. The costs rule which applies in this jurisdiction stands in marked contrast to the rule which applies in Commonwealth anti-discrimination litigation (see eg Fetherston v Peninsula Health (No 2) [2004] FCA 594) and in anti-discrimination litigation in some States, such as Queensland (see eg I on behalf of BI v State of Queensland [2006] QADT 19). Yet in other states, such as Victoria, the costs rule is remarkably similar to that which prevails in NSW (see eg Deckert v Victorian Institute of Dryland Agriculture [2006] VCAT 299). 9 This difference in approach is no doubt brought about by the fact that there is no easy solution to the problem of determining where responsibility for the payment of legal costs should lie in anti-discrimination cases. While it is difficult to refute the claim that injustice is caused to a respondent who must bear his or her own legal costs despite succeeding in litigation, the highly important legal rights that are granted to members of the community by the Anti-Discrimination Act are less likely to be asserted if an unsuccessful applicant faces a costs order unless there are special circumstances which warrant departure from the 'usual' rule. The NSW Parliament has chosen a costs regime which advances protection of the rights set out in the Anti-Discrimination Act. 10 In this case it is necessary to balance our concerns about the possibility that these proceedings may have been an abuse of process with the fact that the legal issues involved were difficult, complex and arguable. As we recorded in paragraph 1 of our earlier decision, the applicant did not leave the NSW Police of his own volition. The respondent exercised his power under s 181D(1) of the Police Act 1990 to remove the applicant from the NSW Police because he had lost confidence in his suitability to serve as a police officer. Ultimately, the respondent chose not to lead any evidence about the circumstances which caused him to remove the applicant from the NSW Police, even though a suggestion had been made in earlier correspondence to the President of the Anti-Discrimination Board (included in the President's report to the Tribunal) that the applicant's complaints of discrimination were linked to the conduct which lead to his removal from employment as a police officer and were not genuine. The Commissioner, very fairly, chose to respond to the merits of the applicant's claims rather than to attack either, or both, his motives in pursuing these complaints and his credibility as a witness. 11 While we concluded in our earlier decision that the applicant's complaints lacked merit, we noted on numerous occasions that some individual claims seemed to have been based on the applicant's misunderstanding of the legal obligations imposed upon an employer by the Anti-Discrimination Act. Much of Part 4A of that Act, which deals with discrimination on the ground of disability, is notoriously complex. The interaction of Part 4A of the Anti-Discrimination Act with occupational health and safety laws and workers compensation legislation is not clearly explained in any of the relevant statutes. In this case the applicant was faced with the difficult task of trying to reconcile an employer's obligations under s 49 of the Workplace Injury Management and Workers Compensation Act to provide an injured worker with suitable employment, with the employer's obligations under s 49D(2) of the Anti-Discrimination Act not to discriminate against an employee on the ground of disability. That reconciliation is not easy. It merits legislative clarification. 12 On balance there is insufficient evidence to satisfy us that there was no tenable basis to the applicant's complaints. We are satisfied that the legal issues involved in this case were difficult and not readily answerable on the face of the relevant legislation. The Tribunal's decision in this case may provide some greater certainty for the respondent when seeking to ascertain the precise nature of his obligations under Part 4A of the Anti-Discrimination Act. We are not satisfied that there are circumstances which justify departing from the presumption in s 110 of the Anti-Discrimination Act that the parties must accept responsibility for their own costs. 13 The Tribunal makes the following order: The Respondent's application for costs is dismissed.

Laycock v Commissioner of Police, NSW Police

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