Russell -v- Commissioner of Police, New South Wales Police Service & Ors (No 2) [2002] NSWADT 252

Court of Appeal (NSW)|2000-11-30

CITATION: Russell -v- Commissioner of Police, New South Wales Police Service & Ors (No 2) [2002] NSWADT 252 DIVISION: Equal Opportunity Division APPLICANT The Late Edward John Russell brought on his behalf by Helen Russell and Ted Russell RESPONDENTS Commissioner of Police, New South Wales Police Service Senior Constable Mewburn Constable First Class Hook PARTIES: Senior Constable Mountford Senior Constable Bellamy Sergeant Healey Constable Gow Senior Constable Griffiths Detective Keogh Constable Morris Senior Constable Callaghan FILE NUMBER: 001016 HEARING DATES: 20/06/2001 SUBMISSIONS CLOSED: 07/12/2001 DATE OF DECISION: 12/02/2002

BEFORE: Ireland G - Judicial Member; Farmer L - Member; Taksa L - Member APPLICATION: Costs MATTER FOR DECISION: Application ancilliary to principal matter; contribution; costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Commissioner of Police v. The Estate of Edward John Russell & Ors [2002] NSWCA 272 Burke vs Tralaggan & Anor [1986] EOC92-161 Gulliver vs The Council of the City of Sydney & Anor [1987] EOC92-185 CASES CITED: V v. Y & anor; X v. Y & anor [2002] NSWADT 7 De La Rosa & Anor; Exparte Norgard vs Rodpat Nominees Pty Ltd [1991] 31FCR83 Sky Channel Pty Ltd vs Tszyu (No. 2) (unreported - 30 November 2000) Gallagher vs NSW Police Service [1998] NSW EOT APPLICANT M Tibbey, solicitor REPRESENTATION: FIRST RESPONDENT W Haylen QC, barrister SECOND TO ELEVENTH RESPONDENTS C Birch SC, barrister ORDERS: 1. The Tribunal does not have the power to examine the rights of contribution between the Respondents' arising as a consequence of the application of s.53(2) of the Anti-Discrimination Act, 1977 for the payment of the award of damages in favour of the claimant; 2. That the First to Eleventh Respondents pay to the Applicants an amount in respect to the costs and expenses incurred by the Applicant in relation to these proceedings and in these applications and that the amount of such costs and expenses be determined in accordance with the provisions of the Legal Profession Act, 1987 if the parties are unable to reach agreement as to the amount to be paid.

Background 1 This Decision relates to two ancillary matters arising out of a decision of the Tribunal delivered on 26th February 2001 in which it found the First Respondent and the Second to Eleventh Respondents unlawfully discriminated against the late Mr Edward Russell under Sections 7(1)(a) and 19 of the Anti-Discrimination Act 1977 ("the Act"); and that those Respondents had unlawfully vilified the late Mr Edward Russell under Section 20C of the Act. The Tribunal ordered that the Estate of the late Edward Russell be paid compensation for the unlawful conduct of the First to Eleventh Respondents in the sum of thirty Thousand dollars ($30,000.00) and the order stated: "That the liability of each of the Police Service and the relevant Respondents be joint and several. It is noted that the effect of this direction will be that the Estate of the late Edward Russell will be entitled to recover the amount of $30,000.00 from any one of the Respondents. The question of the rate of contribution between the Respondents for the amount awarded was not addressed to the Tribunal and the Tribunal will consider a direction as to contribution if the Respondents make an Application to the Tribunal." 2 In its Decision the Tribunal ordered that the Police Service and the other Respondents respectively apologise in the form of apology annexed to the Decision, to the parents of the late Edward Russell. 3 The Decision also reserved to the parties the right to make further representations to the Tribunal as to whether an order for costs should be made in favour of the Applicant. 4 The Tribunal has now heard an application by the Police Service (the first Respondent) for an order for the apportionment of the amount awarded for damages, amongst the Respondents. The Tribunal has also heard an application by the Applicant for an Order for costs of the original hearing and of the hearing on 20 June 2001 in relation to this application. 5 The delivery of its decisions on these applications has been delayed at the request of the parties, until appeals against the original decision of the Tribunal had been completed. The appeal processes were concluded on 20 August 2002 with the judgment of the Court of Appeal in Commissioner of Police v. The Estate of Edward John Russell & Ors [2002] NSWCA 272. As a result of the decision of the Court of Appeal, the original decisions of the Tribunal remain in force. Accordingly, on the 30 October 2002, the Appeal Panel made the following orders:- Any submissions on the effect of the Appeal Court decision re apportionment of damages be filed in 14 days, 13 November 2002. The Tribunal to hand down its reasons on costs and apportionment of damages within a further 28 days, by 11 December 2002. After considering the further submissions made pursuant to that order, the Tribunal now publishes its decisions and reasons on the issues of contribution and apportionment, and on costs arising out of the applications heard on 20 June 2001 Right of Contribution or Apportionment of Damages 6 The First Respondent (the NSW Police Service) makes application to the Tribunal for an Order that the amount of damages of $30,000.00 be apportioned amongst the First to Eleventh Respondents. It was submitted that an appropriate apportionment would be to direct that 50% of the amount of damages be payable by the First Respondent and 50% by the Second to Eleventh Respondents. 7 It was correctly pointed out by Mr Haylen QC for the First Respondent that in the written submissions made at the hearing the First Respondent had addressed the question as to an Order for apportionment of any damages which the Tribunal might seek to award in favour of the complainant. In its decision, the Tribunal did not accede to that request and directed that the Respondents were liable jointly and severally for the whole of the amount of $30,000.00 awarded as compensation to the Complainant. The Tribunal reserved to the Respondents the right to seek from the Tribunal a direction for the rate of contribution to be made between the Respondents for the amounts payable by them to the Complainant. 8 In making the orders and directions in the terms that it did, the Tribunal relied upon the provisions of sub-sections (1) and (2) of Section 53 of the Act. Those sections are in the following terms: "53. Liability of principals and employers An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. ....." 9 Mr Haylen submitted that notwithstanding the terms of Section 53(2), it was open to the Tribunal to make orders for the apportionment of the amount awarded, amongst the Respondents. Reliance was placed on earlier decisions of the Tribunal in which orders for apportionment of damages had been made: Burke vs Tralaggan & Anor [1986] EOC92-161; Gulliver vs The Council of the City of Sydney & Anor [1987] EOC92-185. 10 The submission proceeded to assert that the powers under the Act to make an order for damages are wide enough to allow the Tribunal to order apportionment of damages between Respondents who are found liable under the Act. The power of the Tribunal to make orders, once it has found the complaint to be substantiated, is governed by Section 113 (1) (b) of the Act. The relevant provisions of that Section, so far as this application is concerned, is as follows: "113 Order or other decision of the Tribunal (1) After holding an inquiry, the Tribunal may: (a) ............. (b) find the complainant substantiated and do any one or more of the following: (i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (ii)make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the Respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, ..." 11 It was submitted that the concept of joint and several liability, as contained in section 53(2), means that a complainant may sue one or more of the parties who are subject to such liability, separately or all of them together at his or her option. The submission proceeds, that applying Section 53(2) in that way, it does not follow that the Tribunal is prevented by Section 113 from apportioning damages amongst numerous respondents according to their culpability. 12 Counsel for the Second to Eleventh Respondents opposes this application and relies on a literal construction of the powers of the Tribunal under Section 113 which, according to the submission, does not permit the Tribunal to make orders directing the manner in which, if more than one Respondent is found guilty of unlawful discrimination under the Act as a consequence of the application of section 53(1), to order the manner in which those Respondents should contribute to the amount of damages awarded by the Tribunal. This submission refers directly to the terms of the orders made by the Tribunal against the First to Eleventh Respondents in its decision on 2nd February 2001. The Tribunal found that the First Respondent, as the employer of the Second to Eleventh Respondents, under Section 53(1) of the Act, was deemed to have done the discriminatory act, and the Tribunal found that the Second to Eleventh Respondents had acted unlawfully under Section 52 of the Act by aiding and abetting the contravention of the Act by the First Respondent. The First Respondent and the Second to Eleventh Respondents, were, in the terms of Section 53(2) of the Act, subject to a liability arising under the Act. The Tribunal accordingly directed that the First Respondent and the Second to Twelfth Respondents were jointly and severally subject to that liability, as directed by Section 53(2) of the Act. 13 As noted by the Tribunal in the Orders that it made, the effect of a finding of joint and several liability under Section 53(2) of the Act, is that the complainant has the right to elect to recover the amount of damages from one or more of the Respondents and to determine whether to recover the whole of the amount of the award against any one or more of the Respondents or in such other proportion amongst the Respondents as the complainant may elect. This right of election in the complainant, is a valuable attribute to the complainant's rights, especially where one or more of the Respondents are more likely to have assets capable of responding to the claimant's right of recovery. 14 The right of election arising out of a joint and several liability amongst several respondents, is to be contrasted with the exercise of a power of apportionment of damages amongst several respondents. In the case of an order for apportionment of damages, the Complainant is restricted to recovering the amount apportioned against each Respondent, irrespective of the Respondent's capacity to fully respond to that liability. The distinction between the rights flowing from an order for apportionment on the one hand and the rights flowing to a complainant entitled to exercise a right of recovery jointly and severally against several respondents, is important not only in its recognition but in its practical application in the exercise by the complainant of rights flowing from orders made by the Tribunal. 15 The cases of Burke and Gulliver referred to by Counsel for the First Respondent, did not address this distinction. The Burke decision was concerned with the breach of section 48 of the Act which it was stated: "deals with unlawful discrimination in respect of accommodation, and refers to an unlawful act as being by a 'principal or agent'". 16 The Tribunal in that decision noted that sections 52 and 53 are also relevant but it stated that: "the Tribunal has not found it necessary to rely on section 52 or 53 in concluding that the two respondents bear equal responsibility for the unlawful act." It stated "the terms of section 48 are clear enough." 17 In the Gulliver case, the Commissioners were dealing with a complaint under the Sex Discrimination Act, 1984 (Cth) . The report of the decision refers to the statements by the Commissioners that they considered the further question as to how responsibility for the payment of compensation should be allocated between the two respondents. It then states: "the Commission considers that the Attorney General of NSW should bear the largest share of responsibility because of his action in prohibiting the contest..... Accordingly the Commission considers that the Second Respondent, the Attorney General of NSW, should meet $5,000 of the compensation and the Council of the City of Sydney should meet the remaining $2,300." 18 The report of the decision gives no indication of the authority under which the Commission purported to make the apportionment of the compensation awarded. 19 It is clear, however, that neither decision addressed the issue of the application of the provisions of sections 53(2) of the Act or an equivalent provision. Neither decision is strong support for the proposition of the First Respondent that where section 53(2) of the Act applies, the Tribunal is entitled nonetheless to make an order for apportionment of damages amongst several Respondents. 20 The representatives of the parties were unable to point to any decision directly on the point that is now raised for consideration. The Tribunal has been unable to find any earlier decision on the point. However, after the hearing date of these applications the Tribunal, differently constituted, has addressed the issue of contribution and apportionment in V v. Y & anor; X v. Y & anor [2002] NSWADT 7. The Tribunal in that decision came to the same conclusion that it has reached in this application, namely that the Tribunal is not empowered to make an order for contribution between parties who are jointly and severally liable under Section 53 (2) of the Act, for the payment of an amount of compensation. 21 Reference was made to the decision in De La Rosa & Anor; Exparte Norgard vs Rodpat Nominees Pty Ltd [1991] 31FCR83. That decision involved consideration by French J. of an application for the joining by way of cross claim of additional respondents to an action for breach of the Trade Practices Act 1974 (Cth). Additional respondents were sought to be joined by the application of section 87(1)(A) of the Trade Practices Act 1974 which provides that a Court may order a person who engaged in conduct in contravention of the Act to pay compensation to the person who suffered loss as a result of that contravention. It was sought to join by cross-claim, respondents who it was alleged were obliged to indemnify or contribute to the loss suffered by the claimant. French J stated: "Now it was contended that this would extend to a person who has suffered a judgment for contravention of the Act in which contravention another person was involved. But the Act contemplates that the applicant for relief under s. 87(1)(A) is not the person who contravenes the relevant provisions of Part (iv)." 22 French J goes on to state that in his opinion there is no mechanism in s. 87 nor in the Act generally which would enable the Court to make orders for contribution or indemnity against other contraveners of the Act and against the persons involved primarily in the contravention. 23 French J also considered an application to bring a cross-claim against other respondents on the basis of equitable contribution. French J considered the history of the rights of equitable contribution, especially when they arise out of co-ordinate liabilities. He went on to hold: "In the present case it seems to me that the restitutionary claims against Redpat and Ferguson resting upon their participation in and benefiting from breaches of duty by Dolling and O'Neale, arguably give rise to a co-ordinate liability which can be the subject of contribution proceedings. I do not consider that an indemnity claim is open and certainly no claim based upon s. 87 of the Trade Practices Act. As to the question whether, on the basis that all parties may be joint wrong-doers, principles of public policy of the kind deriving from Merriweather vs Nixon (supra) should have any operation, that is best left to argument in the context of all the evidence." 24 French J concluded that the proposed third party cross claim disclosed an arguable case only against Dolling and O'Neale and he granted leave for a third party cross-claim to be brought against those persons. 25 Some observations that can be made about the application of that decision to the present circumstances, are firstly that the decision is useful to demonstrate that in the application of statutory powers, a court or tribunal is limited to the mechanisms provided within its statutory framework, to make orders or give directions. Secondly, the Federal Court had power to join parties by way of cross claim in order to bring before it persons who it was alleged had a co-ordinate liability which would give rise to claims of contribution. 26 Generally, the Tribunal does not find the De La Rosa decision is of direct assistance in determining the issues that the Tribunal now has to determine. Similarly, the decision to which it was referred of Young J in Sky Channel Pty Ltd vs Tszyu (No. 2) (unreported - 30 November 2000), is useful only if the Tribunal decides that it has the authority to examine the basis of contribution amongst the Respondents. That decision is not helpful on the preliminary question whether the Tribunal has jurisdiction to deal with that issue. Jurisdiction of the Tribunal to examine and determine issues relating to contribution under s. 53(2) of the Act 27 Although the Tribunal agrees with the proposition that the Tribunal has authority to apportion amongst several respondents against whom a complaint of unlawful discrimination has been substantiated pursuant to s. 113(1)(b)(i) of the Act, the Tribunal is of the view that the power of apportionment is distinct from the right of contribution which might arise between several respondents who are the subject of an Order under s. 113(1)(b)(i), to pay, jointly and severally in accordance with s. 53(2) of the Act, an order for the payment of damages. 28 For the reasons previously given, the right that attaches to a claimant as a consequence of a finding of joint and several liability under s. 53(2), should be preserved and should not be altered or interfered with by an order for apportionment. The right inter-se between the several respondents to claim contribution is an issue that does not directly affect the claimant. The right to claim contribution and the manner in which such a claim should be examined, are issues which, in the view of the Tribunal, do not fall to be determined by the Tribunal under the Act. 29 Although the Tribunal is constrained to consider the provisions of the Act as remedial legislation and accordingly to interpret the provisions in a broad and beneficial manner, it nevertheless is constrained by the natural meaning of the words of the Act. To be effective, any claim for contribution made to the Tribunal must be supported in the ultimate by orders which the Tribunal is entitled to make. In the view of the Tribunal, the provisions of s. 113(1)(b)(i), (ii), (iii) are not sufficiently broad to enable the Tribunal to make orders inter-se between Respondents as to the amount that respectively they should contribute as a result of an order made pursuant to the application of s. 53(2) of the Act. The provisions of sub-paragraphs (i) and (iii) of s. 113(1)(b) are confined to the making of an order in favour of the complainant. Sub-paragraph (ii) of s. 113(1)(b) would not be appropriate to base an order in relation to contribution inter-se between several respondents. This lack of authority in the Tribunal to make orders between Respondents for contribution for amounts ordered to be paid to the claimant, does not effect the right of the claimant to recover the whole or part of the amount awarded against one or several of the respondents. 30 S. 82 of the Administrative Decisions Tribunal Act 1997 provides the mechanism for recovery of amounts ordered to be paid by the Tribunal. That section is in the following terms: "82 (1) For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty) the amount is to be certified by the Registrar. (2) A certificate given under this section must identify the person liable to pay the certified amount. (3) A certificate of the Registrar that: (a) is given under this section, and (b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment. (4) A party to proceedings in respect of which an amount has been certified by the Registrar under this section may apply to the Tribunal for a review of the decision to certify that amount." 31 This Section applies whether or not the Tribunal had made orders for contribution, assuming it had the power to do so. The section could be applied to the recovery of amounts between the claimant and the Respondents and for recovery of amounts between the Respondents inter-se. A difficulty under the section might arise when the claimant seeks to recover under that section an amount against any one or more of the respondents, as the Registrar will need to consider the terms on which a certificate should be issued at the behest of the claimant against one or more but not all the respondents. Some evidence of the election of the claimant will be required. This difficulty would not be any the less if the Tribunal had power to order contribution between the Respondents. It should be noted however that the difficulty would be overcome if an order of apportionment were made but the Tribunal considers that processing difficulties that may arise under s. 82, do not govern the determination of the substantive issue as to whether the Tribunal has authority to determine rights of contribution between respondents, arising under s. 53(2) of the Act. 32 The conclusion reached by the Tribunal is supported by the following remarks of Spigelman CJ in the Court of Appeal decision in this matter: [67] The Tribunal may make an order against a respondent only. Employers who become respondents by reason of s.53 may have orders made against them. Section 53(2) has the effect that an employer and employee are jointly and severally liable. Vicarious liability makes the employer entirely liable, subject to rights of indemnity, if any. The Tribunal has no jurisdiction to inquire into or determine such issues. [76] Furthermore, in my opinion, the purposes of the Anti-Discrimination Act are not well served by permitting recovery from employers to whom s53 does not apply. Vicarious liability serves the tort law purpose of shifting the burden of a loss to a person who is a more efficient distributor of the loss. The purposes of the Anti-Discrimination Act are better served by focussing that burden on the actual perpetrator or perpetrators of the unlawful conduct. I do not believe that loss distribution is a purpose of the Anti-Discrimination Act. Denunciation, punishment and deterrence appear to be the primary considerations. These objectives are better served by joint and several liability under s53(2) than by shifting the entire burden of an award of damages to the employer, subject to such rights, if any, of indemnity that the employer may have. 33 The further remarks of Spigelman CJ at paragraph 76 if taken in isolation may appear contradictory to the view of the Tribunal's jurisdiction expressed in paragraph 67. However, the views expressed at paragraph 76 relate to the broader question of the extent of the application under the Act of common law and statutory concepts of vicarious liability and confirm that a Tribunal when considering issues of vicarious liability is confined to considerations arising under Section 53 of the Act. In the view of the Tribunal the remarks of Spigelman CJ in the Court of Appeal decision add further support for the proposition that the Tribunal is constrained in its powers to consider issues of contribution between parties who are jointly and severally liable under section 53 (2) to pay an award of damages. Finding of the Tribunal 34 The Tribunal concludes that the Act does not contain provisions which enable the Tribunal effectively to make orders as to the amounts of contribution to which the various respondents in the matter might be entitled to claim between them and accordingly the Tribunal does not have the power to examine the rights of contribution between the Respondents, arising as a consequence of the application of s. 53(2) of the Act, for the payment of the award of damages in favour of the claimant. Application for an Order for Costs 35 The decision of the Tribunal reserved to the parties the right to make application to the Tribunal "as to whether an order for costs should be made in this enquiry in favour of the Applicant." (para 207). The Tribunal has heard submissions by the parties in relation to the application by the Applicant for an order for costs. The Tribunal has determined that an order for costs in favour of the Applicant should be made in relation both to the inquiry made by the Tribunal into the complaint of the Applicant and to the hearing on 20 June 2001 of the application for costs and the issue in relation to contribution. 36 In reaching its decision in relation to the order for costs, the Tribunal has considered the submissions that were made to it by Counsel for the First Respondent and the Second to Eleventh Respondents as well as the submissions made by the Solicitor for the Applicant. 37 The authority for the Tribunal to award costs is contained in s. 114 of the Act which is in the following terms: "114 Costs (1) Except as provided by section 111(2) and subsection (2) each party to an enquiry shall pay his or her own costs. (2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit." 38 The application of s. 114 has been the subject of numerous decisions by the Tribunal. A useful starting point to examine the principles which should be applied in considering whether the circumstances of the case justify the making of a costs order, is summarised in recommendation 143 of the Report of the Law Reform Commission Review of the Anti-Discrimination Act 1977 (NSW) which concludes: "In determining whether the circumstances of the case justify the making of a costs order, the EO Division should consider: * whether the proceedings determine or clarify an important question of law; * whether any important public policy considerations were raised; * the behaviour of the parties during the inquiry process; * whether the complaint was pursued in a genuine belief that it had merit; * whether the matter was dismissed on the basis that it was frivolous or vexatious; * whether the matter is brought to enforce a previous order of the Tribunal; and * the filing of any written offers of settlement." 39 Rather than canvassing each of the decisions of the Tribunal which have adopted these principles, although not necessarily expressed in the same manner as contained in Recommendation 143, the Tribunal will refer to the decision of the Tribunal in Gallagher vs NSW Police Service [1998] NSW EOT and quote the following passages from that decision: "16 Precisely because the decision is a discretionary one for the Tribunal in the circumstances of the particular case, there can be no authority or rule that determines whether in any case an order should be made." "19. Submissions for the Complainant bring the Tribunal's attention to over a dozen circumstances of the case. The Tribunal is of the view that two of these circumstances, when taken together, justify the making of an order that the Respondent pay the costs of the Complainant. 20. In the opinion of the Tribunal the remaining circumstances do not, alone or in any combination, justify the making of a costs order. Circumstances such as the poor health of the complainant, the manner in which the proceedings were conducted, and the extent to which the case added to an understanding of terms used in the Anti-Discrimination Act, are in the opinion of the Tribunal, unremarkable. 21. While the Court in Penfold said (at page 315) that the analogous subsection 117(2) "does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order", the Tribunal believes it is in the interests of the parties and of the public to make clear the grounds on which its discretion is exercised, particularly when it is a reviewable decision. ....................................................... 43. Perhaps the point has already passed where, in many cases, justice can be done to a successful complainant in the absence of a costs order. However, the Tribunal in Willis was careful to say that it did not consider that "in the absence of other factors, this factor along will generally justify an order for costs" (p 79,283). Similarly the Tribunal in Duggan considered the 'out-of-pocket' issue "in combination with other factors" (p 79,492). The Tribunal in Nowland said of the decision in Duggan that the 'out-of-pocket' issue alone "appears not to have been sufficient justification for the order being made"(p 77077). 44. Awarding costs on this factor alone would, effectively, reverse the presumption in the legislation; it "would be tantamount to applying the rule (that costs) follow the event" (Willis at p 79,283). 45. The Tribunal makes the point that it is increasingly difficult for it to give effect to the intention of the legislature that, generally speaking, each party will pay their own costs, and at the same time to the intention that a successful complainant be compensated for loss and damage caused by unlawful discriminatory conduct. It is the limitation on the jurisdiction in s 113 of the Act that leads to very serious questions being raised about the continuing sense of the costs rule in s 114 of the Act; as the number of cases in which the complainant is out of pocket in this way increases, the tension can only be resolved on a case by case basis. ........................................ 50. As is discussed above, this circumstance cannot, as a matter of policy, be the basis alone for an award of costs in the face of the legislative presumption, even though the passing of time may have led to that presumption resulting, on occasions, in an unfair result for a successful party. But this is not the only relevant circumstance: this case has direct application to people other than the complainant because the Tribunal has found as to the lawfulness of a standard to which all rejoinee applicants were subject." 40 The two determinative aspects of the Gallagher decision which that Tribunal considered justified it in making an order for costs, were, firstly that the decision would have a broader application for persons in the employ of the Respondent who were in similar circumstances to the applicant, and secondly, the combined effect of legal costs and the jurisdictional limit of $40,000.00 on the amount of damages that the Tribunal can award under s. 113(1)(b)(i). 41 Before dealing with the aspects of this inquiry which the Tribunal considers supports an order for costs, the Tribunal will deal with one aspect which was pressed on it by the Solicitor for the Applicant and which the Tribunal considers is not an appropriate basis for an order for costs. The submission spent some time in illustrating the nature of the discriminatory conduct of the police officers towards the late Mr Russell which gave rise to the complaint the subject of the inquiry by the Tribunal. The submission sought to demonstrate the heinous nature of the acts that were perpetrated on the late Mr Russell by the police officers. The submission proceeded to also illustrate that the actions of the police service in its enquiries into the circumstances of the late Mr Russell's arrest by the police officers, was inadequate. The submission required the Tribunal to apply these factors as grounds for imposing on the police officers and the Police Service an order for costs by way of retribution for the nature of their conduct. It is the view of the Tribunal that it is not an appropriate consideration justifying an award for costs, to penalise a Respondent for the nature of their conduct which gave rise to or contributed to the acts of discrimination that had been found against it and for which the Tribunal has made an award of damages by way of compensation. 42 The relevant circumstances that justify the making of an award of costs, are circumstances relating to actions out of the holding of the inquiry by the Tribunal and issues relating to the significance of the decision of the Tribunal as a matter of public interest giving rise to an important question of law or public policy. 43 Applying the matters of principle referred to earlier, the Tribunal considers that the following aspects of the inquiry justify the making of an award for costs: (a) The first Respondent failed to respond to the recommendation made by the Ombudsman in the report that he released on 23rd December 1997. In that report the Ombudsman recommended that consideration be given to the payment of an ex-gratia amount by way of compensation to Mr Russell and that negotiations should be undertaken in good faith in respect of an ex-gratia payment. The evidence showed that no attempt was made by the Police Service to comply with those recommendations. The Ombudsman in his report, also recommended that apologies be made by the Police Officers to Mr Curnock and to Mr Russell and that the Police Service make reference to the finding of the Ombudsman on the official employment records of the Police Service of each of the Police Officers concerned. The Complainant, with justification in the view of the Tribunal, considered that the actions that the Police Service and the Police officers undertook to comply with those recommendations, were not adequate. Had the Respondents appropriately responded to the recommendations of the Ombudsman, it is most likely in the view of the Tribunal, that the complaint lodged with the Anti-Discrimination Board on 6th February 1998, would not have been made and the whole unfortunate circumstances which gave rise to the complaint and to this inquiry would have been dealt with in a conciliatory atmosphere and may have avoided the incurring of the expenditure of time and costs that had been involved in dealing with the complaint and this inquiry. (Refer paragraph 38 of the Decision). (b) The Second to Eleventh Respondents, the police officers, maintained their denial of the acts of discrimination throughout the police investigations and the investigation by the Ombudsman. In September 1999, 8 of the police officers made written statements to the President of the Anti-Discrimination Board, in response to the complaint. Each of those statements maintained the denial of the discriminatory conduct. In its findings, the Tribunal considered that the police officers had carried out the discriminatory conduct against Mr Russell, although the individual police officers were not able to be identified in relation to each specific incidents in the discriminatory conduct perpetrated against Mr Russell. None of the police officers gave evidence before the inquiry and were therefore not able to be examined in relation to the statements that were made during the Police investigations or the statements that were made to the President. Had the police officers not maintained their denial of the discriminatory conduct or had they been available at the inquiry to be examined in relation to their denials, the need for holding of the inquiry or the length of time taken for the hearing of the inquiry, would have not occurred or would have been shortened. (Paragraphs 45 and 58 of the Tribunal Decision.) (c) In the view of the Tribunal there is a public interest in the determinations made by the Tribunal in relation to: (i) The effect of the finding by the Tribunal that for the purposes of s. 53 of the Act, police officers were employees of the NSW Police Service. (ii) The effect of the latter decision means that police constables in the performance of their duty are not immune from responsibility for carrying out their duties in a manner which constitutes an unlawful discriminatory act under the terms of the Act. Had the submissions of the Police Service, which in this regard were supported by the Second to Eleventh Respondents, been upheld, the effect would be that police constables were not answerable for the discriminatory manner in which they might carry out their duties as police officers. Reference can be made to paragraph 119 of the Decision of the Tribunal, where the Tribunal refers to the Decision in the Breen case and to the quotation from the judgment of Hope JA in that case. In that part of his judgment, His Honour commented that, in relation to officers of the Department of Education, it may well be that the Anti-Discrimination Act provides no relief where the Director General of Education has acted in relation to a member of the teaching service in a way which, if he were the employer, would be discriminatory under the Act. The effect of the decision of the Tribunal will assist to clarify not only the position in relation to the relationship of employer and employee under s. 53 of the Act between the Police Service and police officers, but also in the relationship between officers employed in other government services and the departments that employ them. (Refer Paragraphs 119 and 149). (d) The Tribunal decided that, contrary to the submission of the First Respondent, that the NSW Police Service was carrying out a "service" within the meaning of the Act in the context of s. 19 of the Act when its employees viz police officers, were carrying out an arrest. The combined effect of the findings of the Tribunal under s. 53 of the Act and the application of s. 19 of the Act, means that the NSW Police Service has responsibility under the Act for the acts of police constables carrying out a function of the Police Service. The only exceptions being where under s. 53(1) of the Act, the Police Service can satisfy the Tribunal that the Police Service did not authorise the carrying out of the discriminatory conduct engaged in by the police officer/s. (Refer paragraph 173 and 174). 44 Each of these aspects of the Tribunal's decision, in the view of the Tribunal, renders an importance to the decision from a public perspective. 45 The hearing of the inquiry by the Tribunal commenced on 20 July 2000. By an amended Points of Defence filed by the Respondent on 17th July 2000, the First Respondent for the first time raised as a defence, the issues referred to above in relation to s. 53 and s. 19 of the Act In addition, it was only within days of 20th July 2000 that the Respondent filed lengthy affidavits by senior members of the Police Service, which were directed to demonstrate that within the exception in s. 53(1) of the Act, the Police Service had not authorised the discriminatory conduct of the police officers in arresting Mr Russell. The raising of these important issues at such a late stage and the filing of important affidavits on the eve of the hearing, would have caused the legal representatives for the Applicant considerable additional and unexpected effort and the expenditure of time and cost. 46 The amount awarded by the Tribunal for each of the breaches of the Act in the amount of $15,000 and the total amount of $30,000 will undoubtedly be eroded to a large extent by the legal costs incurred by the applicant. No indication was given to the Tribunal as to the amount of those costs, but the Tribunal considers that it is justified in taking notice that the erosion to the amount of compensation awarded would be so considerable that the ultimate payment to the Applicants would be substantially less than the amount of $30,000. As was noted in the decision of Gallagher (supra), this is an aspect which with other aspects, the Tribunal is entitled to take into account on an application for costs. 47 An aspect for consideration in relation to the extent of the erosion of the amount awarded, is the question of the effect of the support from legal aid obtained by the applicants. Ms Tibbey has drawn the attention of the Tribunal to s. 42 of the Legal Aid Commission Act which provides that a Tribunal may order the payment of costs in proceedings before it where a legally assisted person is a party, as if he or she were not a legally assisted person. The Solicitor for the Applicants has also deposed that the complainant was given a grant of legal aid and that under the Legal Aid Commission Act, the Commission is required to determine the amount payable to it by a legally assisted person in respect of the costs and expenses of the legal services provided. No evidence was put before the Tribunal as to the extent to which the Legal Aid Commission has made a determination as to the amount that should be payable to it by the Applicants. The Tribunal considers that as there is no evidence to indicate the extent to which any amount will be required by the Legal Aid Commission to be paid to it in recovery of its costs and expenses in this matter, the Tribunal is justified in considering the application for costs on the basis that the Applicants are exposed to the Legal Aid Commission exercising its discretion to require a payment to it in respect of those costs and expenses. Findings of the Tribunal on the Application for Costs 48 As stated at the beginning of this part of its decision, the Tribunal has decided that it is justified in all the circumstances of the inquiry into this complaint, to make an order that the legal costs and expenses incurred by and on behalf of the Applicants in relation to the proceedings before the Tribunal, be paid by the Respondents. 49 A further issue arises in relation to the appropriate form of order having regard to the joint and several liability of the Respondents under s. 53(2) of the Act. The Tribunal considers that it is appropriate that the form of order in relation to costs should follow the form of order in relation to the payment of damages. The order for the payment of costs accordingly is directed to the First to Eleventh Respondents who are ordered to pay such costs and expenses jointly and severally. The effect of such an order is covered by the decision of the Tribunal on the issue of contribution at the beginning of this decision. Order of the Tribunal 50 The Tribunal finds that the circumstances relating to the proceedings before the Tribunal for the holding of an inquiry into the complaint by the Applicants in this matter, justifies the making of an order for the costs and expenses of the Applicants, incurred in those proceedings and incurred in this application for contribution and for costs be paid by the First to Eleventh Respondents and that the liability of the Respondents to pay the amount of such costs and expenses be joint and several. 51 The Tribunal accordingly orders that the First to Eleventh Respondents pay to the Applicants an amount in respect to the costs and expenses incurred by the Applicant in relation to these proceedings and in these applications and that the amount of such costs and expenses be determined in accordance with the provisions of the Legal Profession Act, 1987 if the parties are unable to reach agreement as to the amount to be paid.

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Trade Practices Act 1974(Cth)

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