Magick v Orange Local Aboriginal Land Council

Court of Appeal (NSW)|2011-08-31

Introduction 1EQUAL OPPORTUNITY DIVISION (N HENNESSY , LCM (DEPUTY PRESIDENT)): The respondent, the Orange Local Aboriginal Land Council, has applied for a costs order against the applicant, Ms Magick. 2The applicant complained to the President of the Anti-Discrimination Board (ADB) that the respondent, who was her former employer, had discriminated against her on the grounds of her race (Aboriginal). The applicant said that she had been subjected to racist comments by co-workers because of a perception that she is not a Wiradjuri person and has no right to practice or teach Wiradjuri dance. She also said that she had been victimised after she complained. 3The President of the ADB referred the complaint to the Tribunal. The first case conference was held on 29 September 2010. Although the applicant initially had legal representation, her lawyers ceased to act in November 2010. After several further case conferences the matter was listed for hearing in July 2011. Following a letter dated 6 July 2011 from the applicant's new lawyers, those hearing dates were vacated. Her lawyers advised that since they had only recently been instructed, they were not in a position to act unless the Tribunal granted an adjournment. The respondent consented but sought their costs thrown away by reason of the adjournment. 4Directions were made for the filing and service of evidence and the matter was re-listed for hearing in September 2011. The applicant's evidence was due to be filed on 5 August 2011, but by letter of 11 August her lawyers advised that their client was withdrawing the complaint. 5By letter of 16 August 2011, the respondent applied for costs either of the entire proceedings or for the costs thrown away by reason of the adjournment of the hearing in July 2011 and the late discontinuance of the proceedings. The applicant opposed that application. 6The costs application has been determined 'on the papers': Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76.

Costs provisions 7The Tribunal has power to award costs in relation to these proceedings: ADT Act , s 88 (3) and AD Act , s 110. However, the general rule is that each party to proceedings is to bear their own costs: ADT Act , s 88 (1). Costs may only be awarded if the Tribunal is satisfied that it is fair to do so having regard to the matters set out in s 88(1A ): ADT Act , s 88(1A ). Section 88 states the general rule and then sets out the circumstances in which it may be considered fair to award costs. Section 88 also defines the term "costs" and gives the Tribunal power to determine by whom and to what extent costs are to be paid. 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A ) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs . (4) In this section, " costs " includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

Basis for application 8Mr Tancred, representing the respondent, submitted that it was fair and reasonable to award costs on the following grounds: (1)The hearing set down for 25, 26 and 27 July 2011 was vacated on the application of the Applicant. Costs were thrown away by reason of this vacation of the hearing date and at the very least these costs should be paid by the Applicant. (2)The proceedings brought by the Applicant had no tenable basis in fact or in law. The complaint made by the applicant fell into two categories. (1) Racial abuse at the hands of a person by the name of Annette O'Neill. The evidence overwhelmingly points to a conclusion that there was no racial discrimination committed by Annette O'Neill and that the nature of the conflict between the Applicant and Annette O'Neill was merely a personality clash. (2) Discrimination committed or allowed to have been committed by the respondent at a meeting of the Orange Local Aboriginal Land Council community in December 2009. The evidence overwhelmingly points to a conclusion that persons challenged the applicant at this meeting to prove her Wiradjuri heritage but that no discrimination occurred. The Respondent was in a position to call over 10 witnesses at the hearing in support of its contention in this regard. (3)The Respondent is a Land Council established under the Aboriginal Land Rights Act 1983 and relies entirely on government funding. The Respondent has incurred significant costs to date in respect of conciliation, then mediation of the complaint and is now in respect of the proceedings in the Tribunal. The Applicant wishes to discontinue these proceedings one month out from the hearing and it is unreasonable in the circumstances for the respondent to bear its costs.

Consideration 9In AT v Commissioner of Police [2010] NSWCA 131, at [33] Basten J emphasised that the general rule is that each party pays his or her own costs . However, the criterion of fairness represented a "relatively low hurdle for an applicant seeking an order." His Honour went on to say that: The criterion of "fairness" will take into account the compensatory purpose of an award of costs , which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act. 10The nature of the Tribunal's jurisdiction in the Equal Opportunity Division is that it is a human rights jurisdiction designed to provide a remedy for discrimination, harassment, vilification and victimisation. The objects of the ADT Act include "to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair." Both these matters suggest that in the Equal Opportunity Division, the compensatory purpose of an award of costs, will generally not be enough to make it 'fair' for costs to be awarded. 11After her first lawyers ceased to act, the applicant was self-represented. When pro bono lawyers were engaged, about 8 months later, they applied for an adjournment of the hearing in accordance with the Tribunal's Practice Note No 4 (PN4/00) "Application to Change Hearing Dates". That Practice Note provides that a hearing date will only be changed where it can be shown to the satisfaction of the Presiding Member that circumstances have arisen which are beyond the control of the parties. On 6 July 2011 the Tribunal consented to the adjournment application. 12Causing an adjournment and asking for an adjournment as a result of failing to comply with directions are both matters which are listed in s 88(1A)(a) as examples of conduct which may make it fair to award costs. However, in the circumstances of this case, the adjournment was occasioned by the fact that it took the applicant considerable time to find lawyers who were prepared to act for her pro bono. 13While the applicant "caused an adjournment" I am not satisfied that it is fair to award costs against her. There is no evidence of the efforts the applicant made to obtain legal representation or of her circumstances during that time. Nevertheless, she did eventually obtain pro bono representation and an adjournment was necessary. 14The respondent's alternative submission was that the applicant should pay its costs because her claim had no tenable basis in fact or law. For the Tribunal to conclude that that is the case, it must either be plain on the face of the documents or some inquiry must have been made to enable the Tribunal to reach that conclusion. Neither of those circumstances applies here. While the respondent's solicitors maintained that it would have adduced evidence from 10 witnesses in support of its assertion, the fact is that the matter did not proceed to hearing. In addition, the fact that the applicant withdrew her complaint does not necessarily mean that it lacked merit. 15In relation to the respondent's third point, the financial circumstances of the parties are not generally relevant. 16I am not satisfied that it is fair to make a costs order having regard to all the circumstances.

Order The respondent's application for costs is refused.

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 November 2011

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