Rae v Commissioner of Police, New South Wales Police Force

Victorian Civil and Administrative Tribunal|2011-03-16

REASONS FOR DECISION 1APPEAL PANEL (K. O'CONNOR, DCJ (PRESIDENT)): In this case the Equal Opportunity Division has ordered the applicant, now the appellant, to pay the whole of the respondent's costs, as assessed or agreed, with one minor exception (costs of the hearing conducted on 12 June 2009): Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254 (26 October 2010) at [114]. 2The applicant now appeals. An appeal may be made to the Appeal Panel in respect of a question of law, and, by leave, may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. As the issue of costs involves the exercise by the Tribunal of an 'ancillary function' the appeal may be heard by a presidential member sitting alone, ADT Act s 113 (2E). The Appeal Panel is so constituted on this occasion.

The Law 3Section 110 of the Anti-Discrimination Act 1977 (the AD Act) empowers the Tribunal to award costs under s 88 of the ADT Act in relation to proceedings brought under the AD Act. 4The primary rule is that each party to proceedings in the Tribunal bears their own costs. There is an exception permitting an award of costs to be made, but 'only if the Tribunal is satisfied that it is fair to do so'. Section 88 provides relevantly: (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. 5The exercise of a costs discretion by the primary tribunal is one that is very difficult to disturb on appeal. There is a broad judgement involved. As Beazley JA noted in Caladine v The Commissioner, NSW Health Care Complaints Commission [2007] NSWCA 362 at [59]: ... [I]n order for there to be appellate intervention, two matters need to be established. First, it would need to be established that there was error in the Tribunal 's exercise of its costs discretion in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 49 9 . Secondly, even if error was demonstrated, the Court will not intervene unless there is a miscarriage of justice. Error in the relevant sense may be one or more of the following: error of law; error of fact; failing to take into account relevant considerations; taking into account irrelevant considerations; or, a determination that the primary determination was so unreasonable that no reasonable tribunal could have arrived at it.

Costs Orders in the Equal Opportunity jurisdiction 6It has been most unusual for costs orders, especially full costs orders, to be made against a complainant in the equal opportunity jurisdiction. 7The equal opportunity jurisdiction serves the important social purpose of providing a facility for the resolution of grievances over perceived unlawful discrimination against individuals on the basis of irrelevant personal characteristics or attributes, such as gender, race and marital status. The making of costs orders may discourage people from airing their grievances. The primary rule reinforces these public interest objectives. The exception is not lightly to be applied. 8This Tribunal's costs rule is similar to the costs rule that applies in the Victorian Civil and Administrative Tribunal (VCAT): see Victorian Civil and Administrative Tribunal Act 1998 , s 109. Morris J, then President of VCAT, sitting in that Tribunal's Planning List, noted in Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059: It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that 'it is fair to do so' will influence the manner in which a particular jurisdiction operates. Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal. 9In my view, these considerations apply with additional force to a human rights jurisdiction of the kind that the Equal Opportunity Division is.

History of the Costs Application 10The appellant's complaint named 23 officers of the New South Wales Police Force as having engaged in conduct that he claimed constituted unlawful racial discrimination and unlawful racial vilification (he asserting that he is an aboriginal person or a person imputed to be aboriginal). The respondent, the Commissioner of Police, applied for summary dismissal. The Tribunal struck out the case in relation to all but 5 of the officers. 11Further directions were given, and the case was fixed for hearing for three days at Lismore commencing Wednesday 2 June 2010. 12On Friday 21 May 2010 the solicitors for the respondent made an offer, on behalf of their client, to waive any claim for costs if the appellant withdrew his application by 4.00pm Friday 28 May 2010. 13The appellant withdrew his application on Monday 31 May 2010 at approximately 9.46am. The hearing was vacated, and a formal order for dismissal entered on 30 June 2010. 14Following the withdrawal of the application, the respondent proceeded to apply for its costs, and lodged submissions in support on 8 July 2010. The submissions attached detailed annexures, including all the written communications between the parties in the period 21-31 May 2010. 15The respondent referred to the considerations listed in s 88(1A), in particular: (a)(i) (non-compliance with directions); (c) (no tenable basis in fact or law); (b) (unreasonable conduct causing the proceedings to be prolonged); and (e) ('any other matter', such as the unreasonable rejection of a settlement offer). 16In its reasons the Tribunal set out in detail the background to the litigation, the way the proceedings were managed, the inadequacy of the appellant's response to numerous directions designed to have the case in a fit shape for the respondent to furnish evidence in reply, conduct on his part which unnecessarily prolonged the litigation and the nature of the legal issues. The Tribunal recounted a long history of non-compliant and non co-operative conduct by the appellant. 17Also relevant to an understanding of the history of the proceedings are two earlier decisions of the Tribunal in the proceedings: Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183 (13 July 2009) (dealing with appellant's application for summons, the matter the subject of the hearing on 12 June 2009); Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 (5 February 2010) (dealing with respondent's strike-out application, granted in part). 18The Tribunal accepted the respondent's submissions in relation to item (a)(i), non-compliance with directions, and item (b), unreasonable conduct, but not as to the other two matters.

Jurisdiction 19The appellant in his notice of appeal submitted that the order for costs was made in error, his grounds being that the Tribunal lacked jurisdiction or the proceedings were void in other respects. 20The conduct of which he complained had a connection with Queensland in the instance of two of the five police officers that remained as respondents. He had complained about conduct that they had engaged in when they visited him at his workplace in Brisbane. 21It is well established that a Tribunal may deal with costs applications made in respect of proceedings with which it has dealt, even if it is later discovered that the application founding the proceedings was beyond the Tribunal's jurisdiction: see, for example, Law Society of New South Wales v Carver [2003] NSWADT 158 at [20]. It is unnecessary to consider this submission any further.

Disqualification 22His second ground makes various personal criticisms of the presiding member, and suggests that he should have disqualified himself. The appellant did not specify with particulars any conduct that might cause a reasonable person, informed as to the role and function of a judicial member, to form a reasonable apprehension that the proceedings might be affected by bias or an absence of impartiality. This ground is rejected.

Whether the Offer of Waiver of Costs was a Relevant Consideration 23At hearing, I raised the issue of the way the Tribunal dealt with the relevance or otherwise of the respondent's offer of compromise, and the practical fact that the ahead-of-trial withdrawal offer sought had been obtained. 24There is no doubt, in light of the history recounted by the Tribunal, that the respondent had a strong case for a costs order as at 21 May 2010. But the respondent made a strategic decision at that point to sacrifice this advantage and make an offer which might bring the case quickly to an end, and avoid the further costs and administrative inconvenience that would be involved in a trial. 25The respondent's submissions to the Tribunal (8 June 2010, the decision was made on the papers) did not raise the question of whether the making of the offer and the withdrawal (albeit out of time) were factors militating against the case they put for a full award of costs. The submissions appear to have proceeded on the premise that as the offer had expired on 28 May 2010, the subsequent withdrawal of the proceedings ahead of trial was not a relevant consideration. The Tribunal did not, as I read the reasons, address this assumption. 26I will set out the relevant communications.

The Communications in relation to the Offer and the Withdrawal of the Complaint 27The letter of 21 May 2010 covered several subjects in relation to the forthcoming hearing, and ended as follows: Instruction to withdraw your claim We have been instructed to invite you to withdraw your claim. Should you withdraw your claim, prior to 4.00pm on 28 May 2010, we are instructed that the respondent will not make any application in relation to costs it has incurred up to date. If you withdraw your claim within that time frame, the respondent would avoid incurring significant costs in the next phase of the litigation, being appearing at the hearing in Lismore from 2 June 2010 to 4 June 2010. We reserve the right to tender this letter in support of any application for costs. We urge you to carefully consider your position and seek legal advice. 28The exchanges which followed included communications from the appellant marked by the vituperation and personal abuse that has typified many of his filings in this matter; and also occurred in the course of his submissions to me. 29The appellant replied on Sunday 23 May 2010 'rejecting' the offer. The message went on to make a counter-offer to settle the proceedings and proposing various orders to which the respondent is asked to consent. 30As at Wednesday 26 May 2010, the respondent had not replied to this counter-offer. The appellant wrote again advising that he regarded the non-reply as indicating that the matter would go to trial, and that he would be briefing a barrister. 31The solicitors replied to the counter-offer by letter dated Thursday 27 May 2010 emailed to him that morning. The letter rejected the counter-offer but kept the negotiations open. The respondent replied by email marked 11.41am. He said he would be briefing his barrister that afternoon. 32In an email marked 3.53pm, the solicitor, Ms Barry, replied. She advised she would be representing her client at the hearing. She continued: 'As far as the respondent is concerned, unless you withdraw your claim, the hearing will be going ahead'. The appellant replied at 5.52pm saying that he was 'looking forward in meeting you at the hearing on Wednesday' [i.e. 2 June 2010]. There were no written communications on the Friday, the final day set by the offer. 33On Monday morning, 31 May 2010 at 9.28am (email marking), the appellant sent a message to Ms Barry, informing her of his intention to withdraw the matter. She replied by email bearing the time 10:06am: I have just telephoned the Registry. They tell me that they have not heard from you. Please contact them as soon as possible. Until you notify the ADT that you are withdrawing, we will continue our preparation for the hearing (and therefore continue to incur costs). 34As it happened between the time of these two communications, the appellant had emailed the Registry. It may not have been seen, or opened at the time Ms Barry called. 35The appellant replied by email bearing the time 10:25am: Ms Barry The below email was sent to the ADT. As far as we are concerned notification has been sent. AS for other jurisdictions the relevant paperwork is now being drafted and will be served accordingly. 36The attached email was from the appellant to the ADT Registry and bore the time 9:46am: The Registrar This is notification that it is our intention to withdraw from this matter, effective immediately, to pursue this matter within other jurisdictions.

Consideration 37The Tribunal in its reasons considered the significance or otherwise of the appellant's withdrawal of the proceedings to the question of costs. It did so in response to submissions made by the respondent as to the unreasonableness of the appellant's conduct (item (b) of sub-section (1A) under the heading 'The implications of late withdrawal of its proceedings' (paras [64] ff)). The Tribunal referred to four cases where different Divisions of the Tribunal had dealt with the relevance to the opposite party's costs application where a party withdraws their claim late in the proceedings or it is dismissed because of non-attendance. 38At [81] of its reasons the Tribunal drew the following perspectives from these cases: 81 In my opinion, the broad outcome of these decisions, read in conjunction with the cases outlined above at [40 - 41], is as follows. The withdrawal of proceedings under the AD Act by the applicant shortly before the scheduled hearing provides grounds for the making of a costs order against him or her under section 88(1A) of the ADT Act (in its current form) unless there are reasonable grounds justifying the withdrawal at such a late stage. This form of conduct by the applicant can properly be regarded as an instance of 'prolonging unreasonably the time taken to complete the proceedings' under paragraph (b) of section 88(1A). Alternatively, it should be treated, in the light of case law interpreting the earlier costs provisions, as a relevant consideration under paragraph (e). But by virtue of those particular features of proceedings under the AD Act on which the Tribunal in Tu , Murtough and Jenkins placed strong emphasis, it does not necessarily follow that the applicant should be ordered to pay all the costs of the respondent. 39Earlier at [40-41] the Tribunal had referred to the reservations expressed in a number of Tribunal decisions over the making of costs orders in the equal opportunity jurisdiction, having regard to its role in securing and protecting fundamental human rights; reservations similar to those expressed by me earlier in these reasons at [6]-[9]. 40As I read the Tribunal's reasons, it construed the appellant's withdrawal as 'late' in the sense of it having come a very long time after the proceedings were commenced (the President of the Anti-Discrimination Board referred the matter under the power relating to matters unable to be resolved by conciliation on 30 April 2008). There is no doubt the withdrawal was 'late' in that sense, being more than 2 years later. 41But this is a case where the respondent had drawn a line under the costs it had incurred (no doubt considerable) up to 21 May 2010, and was prepared to write them off. It made the settlement offer. The withdrawal came 10 days' later. The withdrawal was not, as I see it, a 'late' one, viewed in that way. 42Certainly it was later than the deadline set. But the degree of lateness was small - on one view, less than two business hours later than the deadline (of course, a weekend had intervened). 43For the respondent the appellant's withdrawal very early on the Monday morning still provided the principal benefits which the offer had sought to achieve - vacation of the hearing dates and dismissal of the proceedings. 44In my view, it was not relevant as the Tribunal went on to do, to have regard to the appellant's motivation for withdrawal. The appellant presented his withdrawal in a truculent way, threatening further proceedings elsewhere. But the respondent obtained the advantage to which its offer was so clearly directed and in sufficient time to avoid most of the costs, and all of the inconvenience that would go with the trial. 45A respondent on the cusp of a major trial is served by a withdrawal whether or not the applicant has reasonable grounds for the action or is ill-motivated. None of the cases to which the Tribunal referred had the special features present in this case of an offer to waive costs made close to the hearing date in return for withdrawal, with the withdrawal being furnished albeit a little later than the deadline set, but critically before the trial commenced. 46In my view these were considerations of significance favouring limitation of the costs award, and, in my view, they were not taken into account by the Tribunal. I will extend the appeal to the merits.

The Merits 47Had the appellant acted promptly on the 21 May 2010 offer, the respondent would have avoided the costs that went with dealing with the various communications over the period 21-31 May 2010, and the costs that went with continuing to prepare for the trial (including those incurred for work done over the weekend of 29-30 May 2010). In my view, the respondent should have an award of costs for that work, and for preparation of the application for costs at first instance. For a discussion of the position in relation to costs that continue to accumulate while an offer is on foot, see Bilbarin Nominees Pty Ltd, Mistiglen Pty Ltd v Di Mella Constructions Pty Ltd [2004] VCAT 1816. 48The applicant was a litigant in person. While an offer of the kind set out earlier might properly be ignored in disputes between represented parties, in my view a less strict approach should be adopted in the situation of a litigant in person. I noted earlier the solicitor's reply on the morning of 31 May 2010. It referred to the subject of costs as follows: Until you notify the ADT that you are withdrawing, we will continue our preparation for the hearing (and therefore continue to incur costs). 49This text referred here to the central object of the offer of 21 May 2010. But there is nothing said as to the continuing status or otherwise of the offer. In circumstances of this kind involving a litigant in person, it is desirable for there to be an explicit statement, if that is the view of the offeror, that the offer is no longer on the table. In saying this, I am not suggesting that an offer the subject of such a statement would therefore have no relevance at all to the costs discretion but the making of that statement would be a factor weighing more heavily against the significance to be given to the withdrawal of the proceedings. 50(Finally, I note that the appellant asserted in his submissions and at the hearing before me that he did in fact telephone Ms Barry's office on the afternoon of Friday 28 May notifying withdrawal, and that the calls were not returned. He provided no evidence in support of those assertions. As all the key communications from Monday to Thursday were by email as they were again the following Monday morning, it seems surprising that he would have confined himself to oral contact on such a critical matter.) 51My conclusion is that the order for costs should be confined to the period commencing 21 May 2010.

ORDER

Appeal allowed.
In lieu of the order of the Tribunal substitute the following order: Appellant to pay the respondent's costs of the proceedings, as agreed or assessed, for the period commencing 21 May 2010 until dismissal of the proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar/Associate 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 August 2011

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