Saveka-Henaway v Chargrill Star Pty Ltd

NCAT Administrative and Equal Opportunity|2018-06-20

Solicitors: Jackson and Associates (Applicant) Lawthentic (Respondent) File Number(s): 2017/313848

Background

On 26 September 2017 the President of the Anti-Discrimination Board referred to the Tribunal a complaint by Ms Lara Saveka Henaway (the Applicant) against Chargrill Star Pty Ltd (the Respondent) pursuant to section 93A of the Anti-Discrimination Act 1977 (the ADA).
On 19 December 2017 the Tribunal granted leave under s 96(1) of the ADA for that part of the Applicant's complaint alleging sex discrimination in employment to proceed.
On 19 and 20 June 2018 the Tribunal conducted a hearing in this matter. Following the conclusion of the hearing, the Tribunal gave an ex tempore decision and dismissed the Applicant's complaint on the basis that on the evidence, (including the Applicant's own evidence), the Tribunal accepted the Respondent's submission that the Applicant had not suffered any detriment as a result of any conduct by the Respondent or its employees, and she had not been treated less favourably than any other employee, male or female.
The Respondent sought costs of the proceedings, on the basis that the Applicant's conduct amounted to 'Special Circumstances' under section 60(2) of the Civil and Administrative Tribunal Act 2013 (the CAT Act). The Respondent also sought costs on an indemnity basis pursuant to s 60(4) of the CAT Act.

The Tribunal's power to award costs

The Tribunal's power to award costs is set out in s 60 of the CAT Act: 60 COSTS (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
'Special circumstances' are circumstances out of the ordinary but not necessarily extraordinary or exceptional: Younan v Commissioner for Fair Trading (No 2) [2016] NSWCATOD 60 at [7]. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration: CRIPPS and Another v G& M DAWSON Pty Ltd and Another; G & M DAWSON Pty Ltd and Another v CRIPPS and Another [2006] NSWCA 81 at [60].
It is the applicant for costs who bears the onus of establishing an entitlement to costs in a jurisdiction where the primary rule is that each party bears their own costs: Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at paragraph [18].
In Yammatree Pty Ltd (Applicant); North West Local Land Service (Respondent) [2015] NSWCATAD 221 (Yammatree) the Tribunal noted: 8… Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are 'special circumstances' that warrant an award of costs. That is, the Tribunal must be satisfied there are 'special circumstances' and that these warrant an award of costs. 9 Section 60 (3) provides that the Tribunal may have regard to a range of factors. These include the subsection 60(3)(g) provision regarding "any other matter that the Tribunal considers relevant." It is clear that the factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what might constitute "special circumstances". 10 However, as the Appeal Panel noted in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out. 11 It remains necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs.
When regard is given to the criteria in s 60(3) the conduct of a party, including the conduct of the litigation, can be a relevant factor for the Tribunal to take into account. The purpose of costs orders "are to help ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others": AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [146], referring to Hendrickson v Yarra Bay 16 ft. Skiff Sailing Club Lid (No 2) [2011] NSWADT 204).
In Ceepee Pty Ltd v RMS [2015] NSWCATAD 130, the Tribunal said: 10 Where a court or a tribunal is conferred with the discretion to award costs, such discretion must be exercised judicially and not capriciously (Oshlack v Richmond River City Council (1998) 193 CLR 72 at 81). The fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.
The objects of the CAT Act at section 3 and its guiding principle at section 36 of the CAT Act are relevant to the interpretation of the "special circumstances": Chan v Commissioner for Fair Trading [2015] NSWCATAD 62 at [35] to [38]; BHR and BHS v Biripi Aborignial (sic) Children's Services (No2) [2015] NSWCATAD 109 at [29]; Yammatree at [12]-[13].
Section 36 of the CAT Act states: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

Consideration

In determining whether there are special circumstances warranting an award of costs, the following matters set out under section 60(3) of the CAT Act are relevant to these proceedings: the relative strengths of the claims made by the parties including the Applicant's claim having no tenable basis in fact or law (section 60(3)(c); whether the proceedings were misconceived and lacking in substance (section 60(3)(e)); and whether the Applicant has failed to comply with the duty imposed to give effect to the guiding principle under section 36(3) of the Act (section 60(3)(f)).
The Respondent submitted that the Applicant's motive to obtain compensation is a relevant factor in determining whether to award costs in these proceedings, pursuant to s 60(3)(g) of the CAT Act. The Applicant was clearly aggrieved by her employment with the Respondent and the circumstances of its cessation, whether or not her perception of the conduct was reasonable or whether the Tribunal determined that the conduct amounted to discrimination under the ADA. Although obtaining compensation was a motivating factor in the Applicant's decision to bring proceedings, this does not amount to a special circumstance. Her motives for pursuing the complaint through the Anti-Discrimination Board and in this Tribunal are not unusual in their context. The Tribunal therefore rejects the submission that the Applicant's motive is an applicable factor in this costs determination.

Strength and substance of the claim

The Applicant's complaints were declined by the Anti-Discrimination Board on 23 August 2017 for lack of substance, but on 19 December 2017 the Tribunal granted leave to the Applicant to proceed with her complaint of sex discrimination against the Respondent.
The essence of the Applicant's complaints were that "the applicant was fired and treated poorly as soon as she told the respondent of her menstruation", yet the evidence of a causal connection between her menstruation and any conduct by the Respondent was minimal. Whilst there was evidence that the Applicant suffered a detriment expressed by her representatives to be her employment termination, there was no evidence provided to the Tribunal, outside the Applicant's perception, that the cessation of her employment was initiated by her employer due to her taking breaks. There was no evidence, other than the Applicant's perception, that her employer treated her any less favourably or differently because she took those breaks. The strength of the Applicant's claim and its basis in fact and law was therefore weak, but not non-existent.
Following the Applicant's evidentiary case at hearing, the Respondent made an application for dismissal pursuant to s 55(1)(b) of the CAT Act on the basis that the Applicant's application was misconceived and lacking in substance, for the same reasons expressed by the Anti-Discrimination Board in its letter of 23 August 2017. In refusing the application for dismissal, the Tribunal expressed its concern to the Applicant's representatives regarding the lack of evidence supporting the Tribunal finding a direct or inferential causal connection, between any conduct of the Respondent and less favourable treatment of the Applicant on the grounds of sex, as required by the ADA, as well as their failure to identify a comparator (real or hypothetical). The Applicant's representatives assured the Tribunal that this evidence would be obtained through cross examination of the Respondent's witnesses; however, they failed to elicit such evidence in cross examination or otherwise.
The Respondent submitted that the Applicant misled the Tribunal in this respect, as there was no basis for the Applicant to hold a reasonable belief that such evidence would be provided by the Respondent's witnesses, having regard to the Respondent's position and the Respondent's statements. We reject the submission that the Tribunal was misled; rather, the Applicant's representative's failed to elicit the responses from the Respondent's witnesses they were expecting or desired.
Although the Tribunal questioned the Applicant's representatives in submissions in an effort to identify the evidence they relied on to support their allegations, it appeared to the Tribunal that they continued to misunderstand the necessity to identify the less favourable treatment that the Applicant was alleged to suffer in comparison to another individual (whether hypothetical or real), and failed to causally connect any such treatment to the Applicant's sex or a characteristic of her sex. The submissions were circuitous and missed the point of demonstrating the causal connection. The Applicant submitted: The main question of fact to be answered by the tribunal was whether the applicant was dismissed from her position and was taking too many breaks due to her menstruation on the basis of sexual discrimination. … As a question of law the applicant put to the tribunal that: a) The act of being fired and being unable to work subjected her to a detriment b) A male employee who was treated well when he was sick is the closest reasonable comparator in the circumstances and was treated better than the applicant c) That part of the reason the applicant was treated that way was due to a problem that was exclusive to women and hence one of the reasons she was fired was because she was a woman …
The Applicant's representative's submissions on a "comparator" demonstrated their misconception of the claim and their failure to adduce evidence of substance. The Applicant submitted: Evidence shows that there was in fact a comparator and that comparator is implied by the poor treatment that Lara had received. Adduced through the evidence of Mr Yildiz and employees which state that "Sick or injured" employees were treated well in addition to statements from Lara that she was treated poorly and that there was an implication of implied disdain and anger from Vicki shows that there was clearly a difference between "normal" treatment and that Lara received. It is not unreasonable to conclude that this difference exists and there was a real question to be asked whether this difference did exist and whether she was fired on the grounds of sexual discrimination.
There was no evidence of preferential treatment, or any less favourable treatment, on the grounds of sex or a characteristic of sex. The Applicant's submissions that the Applicant was "treated poorly" in comparison to other employees being "treated well" was not supported by the evidence of either Applicant or Respondent, and did not address the causal connection required to associate any preferential or less favourable treatment with sex.
Whilst ultimately the Applicant's evidence and submissions failed to establish the substance of her complaint and resulted in its dismissal, it was not the case that the Applicant's complaint had no substance in fact or law. Accordingly, the Tribunal gives the relevant factors at s60(3)(c) and (e) some weight, but does not consider them significant or determinative.

Duty to give effect to the guiding principle

As noted in Karina Boscolo (Applicant); Axciom Australia Pty Limited (Respondent) [2015] NSWCATAD 28 at [18]: The Tribunal's understanding of the interaction of [ss 3 and 36 of the CAT Act] is that both the parties and their representatives and the Tribunal itself have an obligation in their conduct to act with economy and to focus on the primary issues between the parties.
The Tribunal had cause to direct the Applicant's representatives on a number of occasions to limit the examination and cross examination of witnesses to matters relevant to the allegations, which resulted in the Applicant not pressing several lines of questioning. We accept the Respondent's submission that the Applicant's repeated insistence on examining witnesses in relation to general employment matters, the non-contentious aspects of her employment cessation, and the languages and racial backgrounds of other employees demonstrated a failure by the Applicant's representatives to act with economy and focus on the primary issues between the parties. However, the Applicant's representatives did attempt to comply with the Tribunal's directions, even if unsuccessfully. The Applicant's conduct of the litigation was not deliberately oppositional to the CAT Act guiding principles, rather the Applicant's failure to conduct the litigation in the quickest and cheapest manner was a symptom of their misconception of the relevant provisions of the ADA and their application. The Tribunal therefore affords limited weight to its consideration of this factor in the determination to award costs.

Applicant's personal circumstances

A matter that may be considered relevant pursuant to s 60(3)(g) of the CAT Act is the Applicant's ability to meet an award of costs against her: see Scott-Brydges v Lismore City Council (No 2) [2018] NSWCATAD 265 and Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 93. The Applicant's representatives submitted regarding her personal circumstances: She has recently been diagnosed with a pulmonary embolism which is blood clots in both her lungs and her legs and she can no longer work. The doctors had informed her that she will recover over two years. Attached and marked [Annexure A] is a medical certificate as evidence of this fact. She wishes to submit that she is an indigenous single mother and she is struggling to make ends meet. She has brought the anti-discrimination claim by herself without assistance from solicitors but needed to hire a solicitor as the Anti-discrimination board did not understand her claim. She cannot afford a cost order against her as the costs are 5 times greater than her own. She is currently on disability and cannot work and if costs were awarded against her, she would not be able to take care of her family. Attached and marked [Annexure B] is an email from Campbell Page Disability Support
The Applicant's evidence about her personal and financial circumstances was limited, but was not contested by the Respondent. The Tribunal accepts that requiring her to pay significant costs in circumstances where she is unemployed, unable to work due to health issues, and an indigenous single mother, would cause her financial and personal hardship. The Tribunal gives this consideration limited weight, but does not consider it determinative or significant in its determination.

Special Circumstances

The Applicant's claim was found to be misconceived and lacking substance, and was therefore dismissed by the Tribunal. Whilst the strength of her case was weak, it was not devoid of basis in fact or law, and was granted leave by the Tribunal to proceed from the Anti-Discrimination Board's referral. Although certain of the factors described at s60(3) of the CAT Act are present, this does not necessarily amount to "special circumstances" justifying an award of costs. As expressed by the Appeal Panel in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, and confirmed in Yammatree, it does not follow that a costs order should be made because some factors are made out. It remains necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs. The circumstances in these proceedings are not sufficient to justify such departure. Taking into account all the various considerations expressed above, the Tribunal does not find "special circumstances" warranting an award of costs in these proceedings, in departure from the usual rule that each party is to bear its own costs.

Orders: 1. The Application for Costs is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 13 December 2018

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Cases Cited (17)