Trad v Jones

reasons for decision 1We are asked by Mr Trad to award him costs both on the cross-appeals and in relation to the proceedings at first instance. Mr Jones and Harbour Radio submit that the parties should be left to bear their own costs of the appeals and that we have neither the power nor warrant to determine the question of the first instance costs. 2As to the proceedings at first instance, we apprehend that we have no power to order any such costs: Chand v Railcorp of NSW (No.2) [2011] NSWCA 80. In any case we think it inappropriate for us to entertain that dispute. We do not have the feel for those lengthy proceedings that those still members of the Tribunal who heard it would have, and if we were to decide the question, that might unfairly foreclose any possible appeal as to costs that might be better informed by a decision benefiting from the input of those members. See also the Tribunal's Costs Guideline at para 10, which suggests (with respect, for good reason) that the costs at first instance might have been finalised despite the appeals. 3We turn to the question of the costs of the appeals. The Tribunal's power to make costs orders in complaints referred to it under the Anti-Discrimination Act 1977 is to be found in Section 110 of that Act, which provides: 'The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint.' 4Section 88 of the Administrative Decisions Tribunal Act 1997 provides: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.' 5Section 88(1) reflects the long-standing practice of the Tribunal that, generally speaking, each party is to bear its own costs. Unlike the situation in some other jurisdictions, costs do not more or less automatically 'follow the event'. The Tribunal may only vary its usual practice if it considers it 'fair to do so' having regard to the matters set forth in section 88(1A). 6Overall, it does not seem to us that any of the parties has conducted the proceedings, either before the Appeal Panel or the Tribunal below, in a way that unnecessarily disadvantaged another party, has unreasonably prolonged the time taken to complete the proceedings, or has made a claim which is untenable (which we take to mean not reasonably arguable) in fact or law. 7Questions do arise however as to whether there was anything in the nature of the proceedings, or arising from their inherent complexity, that would incline the Appeal Panel to make an order for costs. 8Section 88(1)(e) also empowers and obliges the Tribunal to take into account any other matter that it considers relevant. 9In MT v AA (no 2) EOD [2010] NSWADTAP 28, the Panel observed of the costs provisions [at 4-5]: '4 .... There is no issue of statutory construction in these proceedings which would give rise to a beneficial interpretation [of section 110] being preferred. The test is plain. The Appeal Panel must be satisfied that it is 'fair' to award costs having regard to the matters listed in s 88(1A) of the ADT Act which includes any matter that the Appeal Panel considers relevant. ... 5 Nevertheless, ... it is relevant that these proceedings are in the Equal Opportunity Division rather than, for example, in the Retail Leases Division where parties are in a commercial relationship ... We accept that the Tribunal has been more inclined to make costs orders in cases in the Retail Leases Division given the commercial nature of those proceedings: Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 at [37].' 10In proceedings in the Equal Opportunity Division, section 88(1A)(e) is wide enough to encompass, and to authorise, consideration of the fact that the proceedings were brought in that Division, and that they are not of a commercial character. 11As the Appeal Panel had earlier observed in Tu v University of Sydney (No 2) [2002] NSWADTAP 25 [at 39]: 'Equal opportunity tribunals have referred to the special character of the jurisdiction, which seeks to protect and promote the observance of fundamental human rights. For example in Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) it was said that the human rights protection objective 'might be thwarted if complainants were to be discouraged from pursuing claims before the Tribunal due to fear of the amounts that may be awarded against them for inter alia legal costs if unsuccessful on those claims'.' 12In Murtough v NSW Bar Association [2008] NSWADT 166, Deputy President Britton, sitting in the Equal Opportunity Division, observed at [27]: 'A determination of the question whether costs should be awarded requires a balance to be struck between the "chilling effect" of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings.' 13In exercising its discretion under section 88(1A)(e) to take into account 'any other matter that the Tribunal considers relevant', it is proper for the Tribunal to take into account, among other things, the fact that these proceedings have been bought in its Equal Opportunity Division, that it is a human rights jurisdiction, the public benefit that such a jurisdiction provides, and the potentially 'chilling effect' of too readily making costs orders against an unsuccessful complainant. 14In this case, the complainant, Mr Trad, was partially successful at first instance. That success has been confirmed on appeal. The 'chilling effect' referred to in Murtough is of some but less force in relation to an appeal. 15Nevertheless, there are more compelling, countervailing factors. Firstly as to s88(1A)(d), the proceedings on appeal were very complex, both legally and as to the underlying facts, more complex indeed than in many commercial disputes that come before the Tribunal; further the nature of these appeal proceedings was such as to raise intricate legal issues that demanded experienced legal representation of the parties for their adequate resolution to a degree and extent beyond what might reasonably be provided pro bono. The appeal proceedings were unusually laden with legal questions, some of importance. Nor were the factual judgments all simple. 16As to subs (1A)(e), in a case of respondents with deep pockets manifestly prepared to take every conceivable legal point, as was apparently the case here, the absence of any prospect of reimbursement for legal costs could itself have a chilling effect on meritorious complainants coming forward, adequately prosecuting a fairly arguable appeal, or resisting an appeal. 17Overall, this is an unusual case and one with relevant characteristics such that we consider that it is in principle fair that costs should be awarded, if the actual results of the proceedings would warrant some costs order upon ordinary costs considerations. We proceed to deal that question. 18The appeals of Mr Jones and Harbour Radio have been unsuccessful, except on quite minor and relatively unimportant aspects. Substantially Mr Trad succeeded in those appeals. In other jurisdictions, Mr Jones and Harbour Radio would probably be obliged to pay all or nearly all of Mr Trad's costs of those appeals, had they been heard alone. 19In Mr Trad's appeal there were two substantive issues, one of law and, in consequence of the decision as to matters of law, one of fact. Each party was successful on one issue, but the appeal failed. If Mr Trad's appeal had been heard alone in a court, a reasonable costs order would probably be that he pay about 30% of Mr Jones' and Harbour Radio's costs. 20The two appeals were, however, heard together. Overall, Mr Trad decisively had the better of the various matters ventilated, including the legally important issues. Much of both the hearing time and the voluminous material filed was relevant to both appeals. 21As a practical matter, it would seem reasonable that Harbour Radio and Mr Jones should pay one half of Mr Trad's costs of each appeal. We will so order.