Shantz v Winslow

NCAT Administrative and Equal Opportunity|2016-03-30

WHAT THE TRIBUNAL DECIDED

The Tribunal dismissed the Respondents' application for costs
The following are reasons for decision dealing with an application for costs in proceedings relating to a discrimination complaint. The Respondents made the application for costs after the Applicant withdrew the complaint on the day before the hearing.

Background

Ms Arella Shantz made a complaint of racial vilification against Mr Dean Winslow and Ms Taryn Winslow to the Anti-Discrimination Board ("ADB") on 26th September 2014. The matter was not resolved at the ADB and was referred by the President of the ADB to the NSW Civil and Administrative Tribunal ("NCAT") for a public hearing on 4 November 2014.
The matter was listed for hearing before NCAT on 21st October 2015. On 20th October 2015, Ms Shantz the complainant to the ADB and the Applicant before NCAT, advised the NCAT that she was withdrawing the complaint.
The Respondents to the original complaint, Mr Dean Winslow and Ms Taryn Winslow, then made an application for costs by letter to NCAT dated 28th October 2015.
As a matter of clarification, this Tribunal refers throughout these reasons for decision, to the Applicant being Ms Shantz, the original Applicant to NCAT, and the Respondents Mr Dean and Ms Taryn Winslow being the Respondents to Ms Shantz's application to NCAT.

History of the matter at NCAT

The President of the ADB had referred the matter to NCAT under section 93 (C) (c) of the ADA 1977 on 4 November 2014 as he was of the opinion that the complaints were not suitable for conciliation given the alleged threats of violence.
The matter was first listed for a case conference at NCAT on 14 January 2015. Ms Shantz was not legally represented. The Respondents were represented by Ms Sonia Freeman solicitor of John Byrnes and Associates. A timetable was set commencing with the filing of:

the Applicant's Points of Claim and evidence by 18 March 2015;
the Respondents' points of defence, witness statements and all relevant documents by 14 April 2015.

A second case conference was listed on 22 April 2015. Ms Shantz was self-represented and the Respondents were again represented by Ms Freeman. Ms Shantz had not filed her material as required by this time. However she provided 2 letters dated 20 March 2015 and 13 April 2015 stating that she had not done so because of health and housing difficulties and reasons relating to the criminal proceedings involving the First Respondent. Ms Shantz also advised the Tribunal that she had sought the transcript of criminal proceedings against Mr Dean Winslow taken by the NSW Police and heard on 18 March 2015 before the Local Court. Ms Shantz told the Tribunal that the events subject of the Local Court proceedings formed part of her complaint of racial vilification. Ms Shantz told the Tribunal at the Case Conference on 22 April 2015 that the transcript of the Local Court proceedings would not be available before 22nd May 2015.
The Tribunal gave Ms Shantz an extension of time to file her material by 5 June 2015. The Respondents were given until 3 July 2015. The matter was listed for a further case conference on 15 July 2015.
At the case conference on 15 July 2015, Ms Shantz was again unrepresented and the Respondents were again represented by Ms Freeman. The Respondents said at that time that they could not access a disc served on the Respondents which contained a video and a transcript already served on them. The parties were advised that as a matter of procedural fairness that the parties should ensure that they served all documents filed in the Tribunal on the other party.
Directions were made that Ms Shantz was to file any further material by 22 July 2015. The Respondents were to inform the Applicant by email as to whether the documents that had been served on them by the Applicant in a disc or in an email attachment could be read by the Respondents by 29 July 2015. The matter was listed for a further case conference on 26 August 2015.
At the case conference on 26th August 2015, the matter was set down for hearing for a day on 21st October 2015.
Ms Shantz advised both the Respondents and the Tribunal on 20th October 2015 that she was withdrawing the proceedings.

Application for costs

The Respondents filed an application for costs in the Tribunal on 28th October 2015 and served it to Ms Shantz's previously advised address for service.
On receipt of the Respondents' application for costs dated 28 October 2015, the Tribunal set the following timetable for the costs application:

The Respondents to file any further material on which the Respondents relied by 17th November 2015;
The Applicant's material by 16th December 2015; and
The matter to be determined on the papers by the Tribunal after 16 December 2015.

The Respondents filed their further submissions on 17th November 2015. The Applicant wrote personally to the Tribunal on 11 December 2015 and 14 December 2015 seeking extension of time for filing of submissions. Solicitors Adams Wilson wrote on the Applicant's behalf on 16 December 2015 seeking a one week extension beyond the timetabled 16 December 2015, to provide the Applicant's submissions.
The Respondents' solicitors wrote to the Tribunal on 16 December 2015, "strenuously objecting" to any extension of time for the Applicant beyond 16th December 2015.
The Tribunal granted a one week extension from 16 December 2015 to 23rd December 2015 to the Applicant to file her costs submissions in reply. These were filed on 23rd December 2015.
Both parties wrote to the Tribunal requesting that the Tribunal not extend time or take into account submissions filed by the other party outside of the original timetable. The Tribunal determined to accept and consider all correspondence received from both parties concerning the costs submissions - given the difficulty presented by the lack of available legal services during the end of year and the holiday season.

Costs provisions - section 60 CATA

The relevant provisions dealing with the awarding of costs are set out in section 60 of the CATA. The general rule is that each party to proceedings is to bear their own costs: CATA s 60(1).
Costs may only be awarded if the Tribunal is satisfied that there are "special circumstances" warranting the award of costs: CATA s 60(2) - having regard to the matters set out in s 60(3) (a)-(g) of CATA.
Section 60 also defines the term "costs" and gives the Tribunal power to determine by whom and to what extent costs are to be paid.
Section 60 is set out below with the Tribunal's bolding of significant phrases and clauses. 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 Division 11 of Part 3.2 of the Legal Profession Act 2004 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.

The Respondents' costs submissions

The Respondents provided the Tribunal with written submissions on costs on 28 October 2015; 17 November 2015; 16 December 2015 and 12 January 2016. The Tribunal summarises the Respondents' costs submissions as follows.
The Respondents' initial Outline of Costs attaches 2 tax invoices from the Respondent solicitors to each of the Respondents. The first invoice issued on 27 January 2015 covers the period after 30 September 2014 - the first letter sent to the Respondents by the ADB - notifying them of the complaint. The invoice covers the period until 23rd January 2015. The first NCAT case conference was held on 14 January 2015.
The second invoice, dated 22nd October 2015 covers the period from 2nd February 2015 through to 20th October 2015, the day before the scheduled hearing. The Tribunal understands from these invoices - totalling $15,344.75, that the Respondents seeks costs in this amount. The Tribunal also understands that the Respondents' claim includes legal costs incurred before the ADB by the Respondents' solicitors - prior to the referral to NCAT.

Basis for the Respondents' Application for costs

The Respondents' initial Outline of Costs Application filed on 28 October 2015 notes that the Applicant had not advised the Respondents of her intention to withdraw the matter prior to the Tribunal's advice to the Respondents of the withdrawal on 20th October 2015. The Respondents submitted that it was an unusual case and that there were special circumstances. 1. The failure of the Applicant to provide the Respondents with all the documentation she sought to rely on and forwarded to the Tribunal, disadvantaging the Respondents in the proceedings. 2. The minimal notice given by the Applicant on the afternoon prior to the scheduled hearing of her intention to withdraw the matter and the lack of medical evidence for claims that she had been advised to withdraw on medical grounds. 3. The significant financial disadvantage to the Respondents whose solicitor had prepared their case fully. 4. Delays in the matter proceeding caused by the Applicant's failure to adhere to orders of the Anti-Discrimination Board (sic) increasing the Respondents' legal costs and the loss of salary to Mr Winslow and the inconvenience to Ms Winslow when attending the Tribunal. 5. The Applicant's case had not been complex - but she had delayed the proceedings by going on fishing expeditions and increasing costs. 6. The strength of the Applicant's case was poor; the Respondents had objected to the evidence produced by the Applicant and had sought to have the matter struck out under section 108(1) (a) of the ADA and the Tribunal's procedural rules. The Respondents had advised the Applicant they would be seeking costs. 7. The Applicant's case was frivolous, vexatious, misconceived and lacking in substance. 8. There was no tenable basis in fact or law to support the Applicant's claims and she had no reasonable prospect of success.
The Respondents' further submission of 17 November 2015 notes that in addition to the submissions set out in 28 October 2015 the Respondents relied on the following matters. 1. The evidence disclosed that the Applicant was relying to a large degree on a particular incident which occurred on 19 July 2014. This matter had been dealt with by police prosecution and Mr Winslow had pleaded guilty to the charge. 2. It would therefore not have been appropriate for the Tribunal to deal with the matter further given that this would lead to Mr Winslow being subject to double jeopardy. The Respondents would also have objected to the Applicant relying on evidence from one or more witnesses that had been relied upon by the police prosecution. The matter had been dealt with previously by another court of competent jurisdiction. 3. Aside from the events of 19 July 2014 (sic) the Respondents denied all other aspects relied upon in the Applicant's claim and therefore in the absence of corroboration, the Applicant's allegations were doomed to failure from the outset. 4. The Respondents submitted that "the continual refusal by the Applicant to comply with the Tribunal's directions so far as the presentation of evidence is concerned" was a deliberate ploy by the Applicant to increase the Respondents' legal costs. It appeared that the Applicant did not propose to proceed to hearing with respect to the allegations. This was a concession that her case was at all times a lost cause and hopeless. 5. The Respondents contended that the allegations against Taryn Winslow had been made by the Applicant to effect Ms Winslow's eviction from her block. Instead it was Ms Shantz who would now be evicted from the block of units arising from her own conduct. That position was consistent with the application by Ms Shantz having no merit and of being a vexatious application against both of the Respondents. The Respondents submitted that it would be inequitable and unjust for the Respondents not to be given the benefit of a favourable costs order against the Applicant.

Respondents' submission of 16 December 2015

On 16 December 2015 the Respondents' solicitor again wrote to the Tribunal referring to an email from Ms Shantz seeking an extension of time for filing of her submissions. The Respondents "strenuously objected to" an extension of time or delay and saw this as a continuation of the Applicant's attempts to delay the process and increase the Respondents' legal costs.

Respondents' submissions 12 January 2016

On 12th of January 2016 the Respondents' solicitors wrote to the Tribunal advising that they had received the Applicant's submissions dated 23rd of December 2015 after the Respondents' solicitors' firm had closed for the Christmas break. The Respondents objected to the Tribunal taking into account the Applicant's submissions of 23rd December 2015 because the Applicant's submissions had, consistently with the Applicant's approach to the entirety of the matter, been filed out of time. The Respondents did not accept that the Applicant Ms Shantz had not received correspondence from the Respondents relating to cost submissions commencing on 28 October 2015. The Respondents rejected the claim that the Applicant had not seen the Respondents' cost submissions prior to the week commencing 7 December 2015as the Respondents' solicitors had sent them to the Applicant's previously notified address.
The Respondents noted that the information relating to the Applicant's significant health issues had been raised with the Respondents after she had withdrawn from the hearing. Only one of the medical certificates the Applicant sought to rely on had been provided to the Respondents. The certificate of 30 March 2015 stated that the Applicant was unfit for work and it had only been provided to the Respondents after prompting from the Tribunal member dealing with the matter. The first time the Applicant had mentioned to the Respondents that she was under psychiatric care was in a letter to the Respondents on 20 October 2015, the day before the hearing. The remainder of the six medical certificates and reports were provided to the Respondents for the first time in the Applicant's submissions of 23 December 2015.
The Respondents stated that had the Respondents been aware of the Applicant's psychiatric ill-health they would have approached the Tribunal at an earlier time on the basis that the Applicant would not have had sufficient capacity to prosecute the case.
The Respondents stressed the Applicant's failure to serve documentation on the Respondents and the failure to comply with timetables set by the Tribunal. The Applicant did not comply with an 18th of March 2015 deadline - and did not apply for an extension of time until two days after the due date and this was not supported by medical reason. At the case conference on 22 April 2015 the Applicant referred to documents that she had failed to serve on the Respondents. Failure to serve documents on the Applicant's part was again raised in a case conference on 16th of July 2015 and the Applicant was again reminded of the obligation to ensure procedural fairness to the Respondents. The Respondents stated they had raised the issue of the Applicant's case being frivolous and vexatious, misconceived and lacking in substance in a letter to the Tribunal on 25 March 2015. The Respondents had again sought to have the matter dismissed at the case conference on 22 April 2015.
The Respondents denied that they had been responsible for the failure of the matter to go to mediation to effect an early resolution. The Respondents alleged that at the first case conference the Tribunal member had advised the parties that in the absence of agreement about the facts, mediation was unlikely and that therefore the matter should go straight to hearing. Further the Applicant had later stated that she did not see mediation as appropriate and she needed validation and acknowledgement.
The Respondents stated that if the Tribunal were to accept that the Applicant was overcome with medical conditions which had caused delay, non-compliance with orders and the inability to attend the final hearing, this would mean she should not be given any credibility in the absence of corroborating evidence. This itself created special circumstances for the award of costs in favour of the Respondents in accordance with the factors set out in section 60(3) (a) to (g).

The Applicant's submissions on Respondents' costs submissions

The Applicant's submissions addressing the Respondents' cost submissions were set out in documents received at the Tribunal on 11 December 2015; 14 December 2015; by letter from Adams Wilson Lawyers of 16 December 2015, 23 December 2015 and 15 January 2016.
The Tribunal summarises the Applicant's submissions as follows.

Applicant's letter of 11 December 2015

On 11 December 2015 the Applicant wrote to the Tribunal stating that she had been unaware of the Respondents' costs application until she had received the NCAT's letter of 4 November 2015 on 8 December 2015 - giving directions to the parties. The Applicant stated that she did not have a permanent address and was interstate. She feared returning to New South Wales because Mr Winslow had continued to intimidate her. The Applicant also alleged that there was a cohort in City West Housing responsible for fake documents and corruption. The Applicant stated that she had been assisted by a number of advocacy groups in relation to eviction. The Camperdown Mental Health team had been called as she was in crisis of suicide. She was fearful for her life. She requested that NCAT conceal her whereabouts from the Respondents and their solicitors and email her all documents regarding the cost application. She sought an extension of time to file her costs submissions beyond 16th of December 2015 "to a much later date." Ms Shantz stated that she was seeking legal assistance but that it was difficult at this stage of the year due to end of year holidays.

The Applicant's letter of 16th of December 2015 from Adams Wilson Lawyers

Adams Wilson lawyers wrote to the NCAT on 16 December 2015 stating that they were acting on the Applicant's behalf. The letter repeated the claim that Ms Shantz had only become aware of the Respondents' costs application in the previous week. The letter requested that Ms Shantz be provided with a one-week extension until 23rd of December 2015 to review the costs application and file and serve any material in response.
The Tribunal considered the Respondents' submissions to that an extension should not be granted - but the Tribunal determined to extend the time for filing of the Applicant's response by one week to 23 December 2015.

Applicant's costs submissions 23rd December 2015

The Applicant provided submissions with attached documents in a letter dated 23rd of December 2015 from Adams Wilson Lawyers.
This submission stated that the Respondents bore the burden of proof to establish special circumstances that justified the award of costs. Even if there were matters out of the ordinary in the matter, they did not constitute special circumstances. The submissions noted that the Applicant had made various complaints to the police in relation to the conduct referred to in the application. Ultimately Mr Winslow was charged and convicted in the Local Court for using offensive language and for stalking and intimidating the Applicant.
The Applicant suffers from depression and anxiety which has been exacerbated by the alleged conduct of the Respondents and the proceedings. This was supported by a letter from the Applicant's psychiatrist Dr Arthur Ouzas dated 29th of April 2015 outlining her medical diagnosis and treatment. The Tribunal notes that the report refers to the eviction proceedings that Ms Shantz was dealing with.
Upon receiving advice that she did not have the mental capacity to participate in the hearing, the Applicant withdrew the application prior to the hearing. The Tribunal understood this to refer to a letter dated 16th of October 2015 by Dr Con Mitropoulos from Midtown Medical Clinic in Collins Street Melbourne. The Tribunal notes that the letter does not refer to Dr Mitropoulos' qualifications.
The submission then dealt with the Respondents' submissions.
The Applicant submitted that the Respondents' assertion that they had been disadvantaged in the proceedings because of a failure of the Applicant to serve materials to be relied upon at hearing was ill-conceived. Both parties had difficulties accessing documents that had been served. There had been technological problems rather than the deliberate conduct of the parties.
The Applicant submitted that any failure to notify the Respondents of her intention to withdraw the application would have made no material difference. It appeared that the Respondents' true grievance was the fact that the Applicant withdrew the application prior to the hearing.
The Applicant should not be punished for withdrawing her case in circumstances where the withdrawal related to ill health. The Applicant's withdrawal led to a just, quick and cost effective resolution of the matter consistent with the overriding purpose of the CATA. It also saved the Respondents' considerable costs and provided them with the results they sought. It would be unjust and unfair to the Applicant to be punished for her lack of mental capacity to conduct and participate in the hearing.
The Applicant referred to the certificate from her doctor dated 16th of October 2015 which advised that she was not medically fit to participate in the proceedings. The Applicant had not received legal advice regarding her options in light of this medical advice. She proceeded to withdraw the entire application.
An award of costs on the late withdrawal of a matter would create a precedent to encourage matters to be finalised by full hearing rather than a resolution by way of settlement or withdrawal.
The Applicant denied that the Respondents had been significantly financially disadvantaged by engaging a solicitor. The costs of $15,000+ were minimal; the Respondents had stated that the application was not overly complex. The Respondents could have acted for themselves.
The Applicant receives the disability support pension; has no permanent address and no capacity to meet any costs order made by the Tribunal. The Applicant submitted that the Respondents' unreasonable refusals to consent to extensions or adjournments of case conferences to allow relevant documents to be obtained meant that there had been 4 case conferences - resulting in increased legal fees. The delays were not unreasonable, but as a result of the Applicant waiting to obtain documents from third parties or on medical grounds.
At the case conference on 14 January 2015, the Respondents refused to participate in mediation which may have settled the matter.
The Applicant requested an extension of time to file materials ahead of the second case conference as she was waiting on documents from a third party - including the Department of Justice. The Respondents had opposed this extension. The Respondents had also opposed the adjournment of the second conference requested by the Applicant as she did not have all the documents on which she sought to rely. As a result, the case conference proceeded on 22 April 2015. The Applicant submitted additional materials after this time which resulted in a third and fourth case conference being conducted.
Any other request for extensions by the Applicant in the proceedings was a result of her ill-health. The Applicant had annexed medical certificates throughout that period as evidence of this.
The Applicant submitted that the proceedings were not unduly delayed having been listed for hearing a little over a year after the initial referral to NCAT.
The Applicant stated that the Respondents had not previously alleged that the Applicant's case was misconceived, frivolous, vexatious or lacking in substance. The Respondents could have sought to have had the matter dismissed by the Tribunal under section 55 (1) (b) of CATA. In any event Mr Winslow had been convicted in a criminal court based on complaints made by the Applicant.
The Respondents had not provided any overview of the relevant principles and evidence to support the proposition that there was no tenable basis in fact or law to support the Applicant's claims.
As there had been no hearing on the merits, the Tribunal could not have regard to the relative strengths of the claims made by each of the parties.
The Tribunal was not in a position to determine whether the Applicant's claim had no tenable basis in fact or law or that it was lacking in substance. There were grounds for the Applicant's case given the criminal convictions of Mr Winslow and the transcript of the criminal proceedings against Mr Winslow.
The Applicant then referred to the Respondents' submissions on costs of 17th of November 2015. The Applicant noted that the Applicant was relying on an incident that took place on 21 August 2014 not on 19 July 2014. Criminal convictions had established that Mr Winslow's conduct occurred. It was not an instance of Mr Winslow being subject to double jeopardy. In addition to the factual findings about Mr Winslow's conduct, the Applicant would then need to establish that the conduct was based on less favourable treatment on the ground of her race. There was a distinction to be made between the criminal proceedings and the racial vilification proceedings.
The Respondents had not raised the issue of double jeopardy previously even though Mr Winslow had been charged and convicted in March 2015. The Applicant rejected the Respondents' submission that the Applicant's evidence could not have been corroborated as the evidence of all parties not been tested at hearing.
The Respondents had not brought a case under section 55 CATA seeking dismissal of the proceedings against Taryn Winslow. It was baseless to claim that the Applicant was removed from her residential premises meaning that therefore the Applicant's claim had no merit.
An Applicant withdrawing the case at any stage of proceeding is not contemplated in section 60 of CATA as a reason to award costs. To do so would be an incentive to the parties to continue with the hearing for fear of an adverse costs order if they were to withdraw.

Applicant's letter 15 January 2016

The Applicant again wrote to the Tribunal through Adams Wilson Lawyers on 15 January 2016 referring to the Respondents' letter of 12 January 2016 which objected to the extension of time for the Applicant to file materials. The Applicant objected to the Tribunal relying upon the Respondents' objections as there had been no provision for the Respondents to file a reply in relation to the Applicant's submissions.

Tribunal's consideration of the Respondents' application for costs

The questions before the Tribunal in determining whether or not to award costs to the Respondents were: 1. In terms of section 60 (3), had the Respondents articulated special circumstances which warranted the award of costs to the Respondents? 2. If the Respondents had articulated special circumstances in terms of section 63 of CATA, did such costs include the award of costs for work undertaken in dealing with the complaint at the ADB in terms of section 60 (5).

Were there special circumstances?

Section 60 (3) provides that the Tribunal may have regard to a catalogue of factors - including 60(3) (g) "any other matter that the Tribunal considers relevant." It is clear the factors set out in section 60(3) (a) to (g) are not meant to be exclusive or exhaustive of what might constitute "special circumstances".

History of costs provisions

The Tribunal notes that section 88 of the Administrative Decisions Tribunal Act (ADTA), the predecessor to CATA, previously nominated "special circumstances" as the basis for the award of costs. This later changed in 2009 to a test of where it was "fair to do so". The new and current costs section 60 CATA, again picks up the wording of "special circumstances" as the basis for the award of costs. The Tribunal notes that in the matter of AT v Commissioner of Police 2010 NSWCA 131, Basten J remarked that the test of what is fair, is a low bar. In the matter of Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 in dealing with a costs application under section 60 of CATA, the Deputy President of NCAT O'Connor noted at paragraph 78: 78. The exception ('special circumstances') is, arguably, narrower than the exception at s 88(1A) of the ADT Act ('fair to do so').
This Tribunal infers that the current test of "special circumstances" is a harder test for its proponent to satisfy than the previous test where "it is fair to do so".

Objects of CATA

To interpret the "special circumstances" provisions, it is relevant to consider the Objects of the CATA as set out in section 3 and the Guiding Principles to practice and procedure set out in section 36.
Section 3 of the CATA sets out the following relevant objects of the Act:
The objects of this Act are: (a) (b) (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g)

Guiding Principles of Practice and Procedure

Part 4 of the CATA deals with practice and procedure in the Tribunal. Section 36, within Part 4, sets out the guiding principle to be applied to practice and procedure in NCAT. Section 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) ……..
The Tribunal's understanding of the interaction of these sections 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.

Meaning of special circumstances

A scan of case law shows that the concept of 'special circumstances" is known in the areas of criminal law, professional disciplinary matters in relation to costs, applications for security of costs and in the social security arena concerning beneficial exercise of a discretion.
In Topp's case, the AAT considered the meaning of the term "special circumstances" in relation to its use in section 1184K of the Social Security Act. Section 1184 allowed for the Secretary of the Department of Social Security to exercise a beneficial discretion "if it is appropriate to do so in the special circumstances of the case." Relying on a Full Federal Court decision in Beadle v Director General of Social Security [1984] AATA 176, the AAT considered that if something unfair, unintended or unjust had occurred which was out of the ordinary, (this Tribunal's bolding) this might constitute special circumstances justifying the exercise of the discretion - see Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 paragraphs 21 and 38-40.
The AAT's analysis in Topp's case also indicates that the determination of the existence of "special circumstances" vested a broad discretion in the decisonmaker.
Other common features of the case law on special circumstances are consideration of the tenuousness of the case brought by a party and the mode of conduct of the litigation.
Most recently the NCAT Appeals Panel in the matter of Obieta, considered that "special circumstances" in respect of costs in section 60, included the persistent prosecution of a weak (and unsuccessful) case through an appellate process- see Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38.
The Tribunal has considered the Respondents' submissions on the following factors as to whether there are special circumstances justifying the award of costs against the Applicant.

Applicant's failure to mediate the complaint

The Tribunal notes that the original complaint was lodged with the ADB on 26 September 2014. The President determined to refer the racial vilification complaints to the NCAT by letter dated 4 November 2014.
The last document in the President's Report is the Police Fact Sheet relating to Mr Winslow's arrest and charging on 5th September 2014 in relation to Stalk/Intimidate Ms Shantz and using offensive language in near public place/school under the Summary Offences Act 1988. This document was provided to the ADB by Mr Winslow's solicitor on 23rd October 2014.
The covering letter of the ADB's President referring the application under section 93C(c) of the ADA for public hearing states that the reason for the decision was that: "The President is of the opinion that the complaints are not suitable for conciliation given the alleged threats of violence."
Mr Winslow was not convicted of the offences until March 2015. In the circumstances however, given that the criminal proceedings relating to the relationship between the Applicant and Mr Winslow were pending, it is not surprising that the President of the ADB determined the matters unsuitable for conciliation. Further the matter could only have been referred to mediation at NCAT if both parties had requested mediation. This apparently did not occur.
In these circumstances the Tribunal does not find that the matter was not mediated through the fault of the Applicant. The Tribunal does not consider that a special circumstance is made out in this respect.

Applicant's failure to provide Respondents with all documents - disadvantaging the Respondents; AND

Delays in the Applicant's failure to adhere to orders increasing legal costs and loss of salary and inconvenience to Respondents; AND

Delays through going on fishing expeditions increasing costs

The Respondents have argued that special circumstances arise through the failure of the Applicant to provide the Respondent with all documents on which the Applicant sought to rely. At the case conference on 14 January 2015, a timetable for filing of all materials was set for both parties. Both parties were given leave to issue summonses. The Respondents were given leave to issue a summons to City West Housing and for the Applicant to issue a summons to the NSW Police for documents and CCTV footage relating to the alleged incident on 21st August 2014 involving the Applicant and the first Respondent. Both parties were then on notice that the Tribunal considered that documents relating to Mr Winslow's charging with criminal offences were relevant to the proceedings and that these documents may have been brought before the Tribunal.
Ms Shantz was due to file and serve her material on 18 March 2015. She did not do so. Ms Shantz wrote to the Tribunal on 20 March 2015 and 13 April 2015 seeking extension of time to file her material. The letters set out amongst other issues that Ms Shantz was unwell; that she had been dealing with eviction proceedings and that she was seeking materials relating to Mr Winslow's convictions on 18 March 2015. She sought an extension of time to file her materials.
The Respondents' solicitors advised the Tribunal that the Respondents rejected both Ms Shantz's request for extension to the Tribunal and to adjourn the second scheduled case conference, on 25 March 2015.The case conference proceeded on 22nd April 2015.
The Tribunal notes the obligations on parties, their representatives and the Tribunal itself set out in section 36 of the CATA.

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. (Tribunal's bolding)

It was open to the Respondents to raise procedural issues and to refuse consent to the adjournment of the case conference on 22nd April 2015. However this procedural right needs to be balanced against the obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The Respondents' solicitors were aware that the Tribunal considered that the outcome of the criminal proceedings in relation to the First Respondent were a foundation for the real issues between the parties. The Tribunal does not consider that proceeding to the case conference on 22nd April 2015 and the incurring of legal costs by the Respondents was a matter of deliberate delay by the Applicant warranting the award of costs on the basis of special circumstances.
At the case conference on 22nd April 2015 on the basis of Ms Shantz's correspondence of 20 March 2015 and 13 April 2015 - the Tribunal agreed to an extension of the timetable. The Tribunal noted that Ms Shantz had requested the transcript of the proceedings of 18 March 2015 in which the First Respondent Mr Winslow was convicted. The Tribunal noted at that time that the transcript was unlikely to be available before 22nd May 2015. The Tribunal vacated the previous timetable and required that the Applicant file and serve all materials by 5 June 2015 and the Respondents by 3 July 2015. This was consistent with the Tribunal's acknowledgement at the first case conference on 14 January 2015 of the relevance of the outcome of the criminal proceedings against the First Respondent. The Tribunal had agreed to the issue of a summons at this time to the NSW Police Force. It was therefore consonant with this approach that the Tribunal amended the timetable to allow for filing and service of such documents. The Tribunal reminded Ms Shantz of her obligations as a party under the CATA and the principles of procedural fairness to comply with any such timetable and to serve all documents on the Respondent. The matter was listed for a further case conference on 15 July 2015.
The case conference on 15 July 2015 appears to have dealt largely with technical difficulties encountered by the Respondents in opening and viewing the contents of disks and emails served by the Applicant. The parties were advised that if the difficulties with accessing the materials were to persist - they should approach the Tribunal for further directions. It does not appear that this occurred.
On 15 July 2015 the Applicant filed in the Tribunal the written transcript of the proceedings on 18 December 2014 in the Local Court relating to Mr Winslow's not guilty plea and eventual conviction for stalk/intimidate. This was filed after 5th June 2015 - the closing date for the Applicant's material. This filing would appear to have been in response to the Respondent solicitor's letter of 3 July 2015 which states that it would object to the reliance on the partial transcript of the proceedings on 18 March 2015 in the absence of the transcript of the first day of hearing on 18 December 2014. Again this material was familiar to the First Respondent and his legal representative and was consistent with the Tribunal's early determination that these materials were relevant to the complaints of racial vilification against the First Respondent. The filing of this transcript was at the least contemplated by the Respondents' solicitors' letter of 3rd July 2015.
At the conference on 15 July 2015, the Tribunal also gave leave to the Applicant to file transcript of the evidence in the First Respondent's trial given by the witness, Ms Emmerson. Again this material would not have been of novelty to the First Respondent. The matter was set down for a further case conference on 28 August 2015 for the appointment of a hearing date. The matter was then set down for hearing on 21st October 2015 - some 7 weeks later. It does not appear that any further material was filed by either party after late July 2015. In these circumstances the Tribunal does not find that there was any prejudice to the Respondents - not otherwise dealt with by the Tribunal - by any late filing and serving of documents by the Applicant.
In these circumstances, the Tribunal does not find that any delays by the Applicant in filing and serving her evidence are such as to constitute special circumstances warranting the award of costs.

Minimal notice of withdrawal and lack of medical evidence basing withdrawal; AND

Financial disadvantage to the Respondents whose solicitor had prepared their case fully AND

Medical unfitness suggests there was no capacity to bring proceedings and Applicant's evidence could not be credible

The Tribunal notes that Ms Shantz obtained advice from a treating medical practitioner on 16 October 2015 that she was unfit to engage in the proceedings. The Applicant might at this time have sought an adjournment of the matter - based on the medical reports which have subsequently been provided. The Applicant did not do so. Instead she advised the Tribunal 4 days later of her intention to withdraw the complaints completely. It appears from the invoices provided by the Respondents' solicitors that the bulk of the Respondents' preparation was completed by 16 October 2015. The Applicant's withdrawal of the complaint did not cause the Respondents to incur additional legal costs. The Respondents were spared the legal costs of a day's representation in a contested hearing.
In Shandil's case the Tribunal did award costs to a Respondent after the Applicant's withdrawal of the case. There are some distinctions to be made however from the current matter. Mr Shandil had agreed to withdraw the complaint. Contrary to that agreement, he had then proceeded with the complaint - then withdrawn it on the day before hearing. Further the test in that matter was not "special circumstances" - but rather where "it is fair to do so". See Shandil v Animal Welfare League NSW [2013] NSWADT 15. Ms Shantz's withdrawal of the matter does not in this respect warrant the finding of special circumstances.
The Tribunal notes that in her letters of 20 March 2015 and 13 April 2015 which were discussed at the case conference in April 2015, Ms Shantz advised the Tribunal and the Respondents of her ill-health and its consequences for her. A medical certificate dated 17 April 2015 was provided by Ms Shantz. Medical reports were attached to Ms Shantz's submissions on costs. The Tribunal finds that contrary to the Respondents' submissions, the Respondents were on notice that Ms Shantz suffered from ill-health at least from the time of the provision to the Respondents of Ms Shantz's letters of 20 March and 13 April 2015.
None of the medical evidence before the Tribunal comments on Ms Shantz's capacity to bring or understand the nature of the proceedings. The Tribunal cannot as invited by the Respondents, draw conclusions about Ms Shantz's capacity to have brought the proceedings - or her credibility - in the absence of further evidence on this matter.
The Tribunal does not find in this instance special circumstances warranting the award of costs.

Poor strength of Applicant's case; strike out under section 108(1) (a) ADA and costs warning

In its email to Ms Shantz of 25 March 2015, the Respondents' solicitor advised Ms Shantz that it would seek to have the matters summarily dismissed if Ms Shantz did not comply with timetables. The Tribunal's file does not have any written application from the Respondents or their solicitors for dismissal either for failure to comply with orders or because the Applicant's case could not succeed under section 55 of CATA or section 108 of the ADA by either Respondent.

Frivolous, vexatious, misconceived and lacking in substance; ulterior purpose

No tenable basis in fact or law and no prospect of success;

The Respondents submitted that the Applicant's case was lacking in merit; lacking in substance and that this provided a special circumstance justifying the award of costs. This submission by the Respondents requires the Tribunal to draw a conclusion about the relative merits of the Respondents' and Applicant's cases.
In this regard the Tribunal refers to the comments of Deputy President Hennessy in the matter of Aydemir v Redegalli [2011] NSWADT 198 at paragraph 16: Withdrawal in these circumstances does not constitute a concession that the application lacked merit, nor can such an inference necessarily be drawn. In the absence of a hearing where findings of fact are made and legal argument presented, it is not appropriate for the Tribunal to draw a conclusion as to the merits of the complaint.
Further, there was nothing before the Tribunal that suggested that the Applicant had lodged a complaint in the ADB which was lacking in substance in terms of the Anti-Discrimination Act. The President of the ADB could have declined to refer the complaint in such circumstances or the Respondents could have applied to have the complaint dismissed on this basis. This did not occur.
The Respondents attributed an ulterior motive to Ms Shantz in bringing her complaint as a way to effect Ms Taryn Winslow's eviction. However no evidence was provided of any action threatened or taken by the City West Housing authority against Ms Winslow as a result of Ms Shantz's complaint.

Double jeopardy

The Respondents argued that the bringing of the matter against Dean Winslow was double jeopardy and that this based special circumstances. The Tribunal accepts that criminal convictions had established that Mr Winslow had engaged in certain conduct on 21st of August 2014. The bringing of the complaint and application is not an instance of Mr Winslow being subject to double jeopardy. In the NCAT proceedings in addition to the factual findings about Mr Winslow's conduct, the Applicant would then need to establish the elements set out in sections 20B and 20C of the ADA : 20C Racial vilification unlawful It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
There is a clear distinction to be made between the criminal proceedings and the racial vilification proceedings. The proceedings are conducted under different statutes with different burdens of proof and potential outcomes.

Costs incurred before the ADB

As noted, it appears from the submission of the Respondents' solicitors' first tax invoice that the Respondents seek the award of costs for the work done on the Respondents' behalf before the ADB.
Section 60(5) defines costs as including costs of or incidental to "proceedings in the Tribunal". The Tribunal is yet to determine whether costs expended by a party in the ADB are costs of or incidental to "proceedings in the Tribunal". In George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 the Applicant had been successful in its proceedings against the Commissioner of Police in the ADT and sought costs. However the ADT said that costs could only be awarded from the commencement of the proceedings in the Tribunal and that the administrative processes prior were not "proceedings". This matter dealt with the preceding section 88 in relation to costs where the test was the broader "where it is fair to do so". The Tribunal also notes that the administrative proceedings in this matter did not involve a complaint in the ADB, but rather a consideration of firearms licensing by the Commissioner of Police.
In Shandil's case, Deputy President Hennessy indicated that it was unlikely that the Tribunal had power in respect of awarding costs for administrative proceedings prior to the commencement in the Tribunal. In that matter, the Applicant submitted that processes in the ADB were most likely not "proceedings" and therefore costs could not be awarded in respect of these. See Shandil v Animal Welfare League NSW [2013] NSWADT 15 at paragraphs 16 and 17.
The Tribunal refers to the public interest consideration against the awarding of costs in equal opportunity matters. In the matter of ACE v State of NSW (TAFE Commission and DET) (No 3) [2011] NSWADT 154 even though the Applicant had pursued the matter unsuccessfully all the way to the Appeal Panel, the Appeal Panel declined to award costs because of the "chilling effect" of costs orders in the Equal Opportunity jurisdiction.
In the circumstances the Tribunal does not find that there are special circumstances which warrant the ordering of costs against the Applicant in relation to the withdrawn complaint. The Respondents' 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: 04 April 2016

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Judgment (33 paragraphs)

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Cases Cited (4)