Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda

NCAT Appeal Panel|2020-03-20|Before: Dr J

REASONS FOR DECISION

At first instance in this matter, the Tribunal determined that Sydney Water Corporation ('Sydney Water') and Vitality Works Australia Pty Ltd ('Vitality Works') contravened s 22B of the Anti-Discrimination Act 1977 (NSW), which deals with sexual harassment, in relation to the display of a poster, which showed a photograph of Ms Yelda, at the Ryde Depot of Sydney Water. The Tribunal also determined that Sydney Water had contravened s 25(2)(c) of the Anti-Discrimination Act 1977, which deals with discrimination against an employee on the ground of sex (see Yelda v Vitality Works Australia Pty Ltd, Yelda v Sydney Water Corporation [2019] NSWCATAD 203).
Both Sydney Water and Vitality Works appealed to the Appeal Panel from the decision of the Tribunal at first instance. They were both wholly unsuccessful in their appeals before the Appeal Panel (see Vitality Works Australia Pty Ltd v Yelda, Sydney Water Corporation v Yelda [2020] NSWCATAP 210).
Ms Yelda has applied to the Appeal Panel for costs against both Sydney Water and Vitality Works under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the Act'). Both Sydney Water and Vitality Works oppose the making of an order for costs against them.

Costs

The Act provides, in s 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.

Ms Yelda

Ms Yelda submitted that there were special circumstances within the meaning of s 60(2) of the Act, warranting an order for costs in her favour against both appellants in relation to the appeals to the Appeal Panel.
The following principle set out by the Appeal Panel in The Owners Strata Plan 20211 v Rosenthal; Rosenthal v The Owners Strata Plan 20211 [2019] NSWCATAP 49 at [13] is applicable: The term "special circumstances" is not defined in the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120. As summarised in Kadsielski v Guca 1 Pty Ltd [2018] NSWCATAP 223: 14. First, special circumstances are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. It suffices if the circumstances are "out of the ordinary": Ingate v Andrews [2018] NSWCATAP 170. 15. Secondly, each case depends upon on its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152. 16. Thirdly, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94.
Ms Yelda argued that, to succeed in her application for an order for costs in her favour in either matter, she must show that special circumstances existed in relation to the appeal. She must show that the appeal in question was out of the ordinary, and, in determining whether the appeal was out of the ordinary, the Tribunal will have regard to the matters listed in s 60(3) of the CAT Act.

Sydney Water

Sydney Water cited Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, in which the Appeal Panel was dealing with an application for costs in relation to an internal appeal, and considered s 88 (3) of the now repealed Administrative Decisions Tribunal Act 1997 which was similar to s 60(3) of the Act. The Appeal Panel said: 80 So far as the factors listed in s 88(3) are concerned, we refer in particular to the following matters - 'the relative strength of the claims' made by the parties (s 88(3) (c)) and the lack of substance of the appeal (s 88(3)(e)). In the case of an unsuccessful appeal, we regard as a relevant matter (s 88(3)(f)) the fact that a costs order was made against the appellant at first instance. A successful respondent to an appeal who has been awarded costs at first instance has a strong claim to a costs award in relation to the appeal. The respondent has been exposed to a second round of litigation. 81 It does not follow that because some factors to which s 88(3) are made out that a costs order should then follow. 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. In this instance we are satisfied that the factors we have mentioned were of sufficient significance to justify a finding of special circumstances.
As in Obieta, under s 60 of the Act, an order for costs will not necessarily follow from a party establishing the existence of one or more of the factors set out in s 60(3)(a) to (g). Where the existence of one or more of those factors has been established, the Tribunal should take the established factor/s into account in considering whether it is satisfied that there are special circumstances warranting an award of costs and departing from the usual rule that each party bears its own costs, but it is for the Tribunal to weigh those matters in the context of all of the relevant circumstances of the case.

Vitality Works

Vitality Works cited CEU v University of Technology Sydney [2017] NSWCATAD 280 at [4] as authority for the proposition that 'special circumstances', for the purposes of s 60(2) of the Act, do not have to be extraordinary. It is sufficient for them to be out of the ordinary.

Determination with respect to the approach to the application for costs.

Under s 60(1) of the Act, the general principle in considering an application for an award of costs is that each party to proceedings in the Tribunal is to pay its own costs. However, an award of costs may be made by the Tribunal if it is shown that special circumstances warranting an award of costs arose in the matter, under s 60(2) of the Act. 'Special circumstances' means circumstances which are out of the ordinary. The circumstances need not be extraordinary. In determining whether special circumstances exist, we may have regard to the matters listed in s 60(3) of the Act. None of the matters listed in s 60(3) of the Act is necessarily decisive. The Tribunal's discretion with respect to costs must be exercised judicially and having regard to the general principle in s 60(1).

Ms Yelda

Ms Yelda argued that the Tribunal should take in to account, under s 60(3)(c), the relative strengths of the cases on appeal. Vitality works pleaded 11 grounds of appeal on the law and one on the facts. Sydney Water initially pleaded 12 grounds of appeal, but later substituted, for those 12 grounds, 10 new grounds of appeal. Ultimately, Ms Yelda had to meet 21 grounds of appeal on the law and one on the facts. All of the grounds of appeal were unsuccessful, which, Ms Yelda argued, indicated the relative strengths of the cases of the appellants and the respondent.
Ms Yelda argued that, under s 60(3)(c), the making by a party of a claim which has no tenable basis in fact or law is only one way of considering the relative strengths of the claims of both parties. Special circumstances may be found to be present on the basis of the relative strengths of the claims of both parties in the absence of a claim which has no tenable basis in fact or law.

Sydney Water

Sydney Water argued that the fact that the Appeal Panel decided the appeal against the appellant does not necessarily indicate that the appellant's appeal grounds were untenable.
Sydney Water pointed out that the President of the Anti-Discrimination Board found the complaint to be lacking in substance, so that leave from the Tribunal had to be obtained for the matter to proceed in the Tribunal.
Sydney Water argued that genuine legal issues about the proper interpretation and application of s 22A and s 24 of the Anti-Discrimination Act 1977 were raised by the grounds of appeal.
Sydney Water said that, rather than pleading 12 grounds of appeal and then substituting 10 different grounds, in fact it initially pleaded 4 grounds of appeal and then reduced the number of grounds of appeal to 3. Sydney Water pointed out that the issues raised by the grounds of appeal were matters argued at first instance. Ms Yelda represented herself at first instance.

Vitality Works

Vitality Works argued that its grounds of appeal were not untenable, doomed to failure or lacking in substance.
Vitality Works relied upon the following passage from Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]: The term "lacking in substance" has been interpreted to mean "not reasonably arguable". In Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 45 the Court of Appeal interpreted the phrase in the context of the informal investigative powers in the Strata Schemes Management Act 1996 (NSW). The Court concluded at [45] that, "It would be inappropriate given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than "not reasonably arguable". Although the legislative context here is different, that interpretation is also apt given that the power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed: AB v State New South Wales [2014] NSWSC 81 at [50] quoting Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
Vitality Works argued that its grounds of appeal were reasonably arguable, and required the Appeal Panel to conduct 'a careful and considered analysis of the law of sexual harassment as it applied to the facts in the case'.

Determination as to whether there is anything about the relative strengths of the claims made by each party which constitutes special circumstances warranting an award of costs to Ms Yelda

All parties pointed to the number of grounds of appeal which they said was advanced by each appellant in the appeals. Ms Yelda and the appellants disagreed about how many grounds of appeals were advanced in each appeal. This dispute arises from the way the grounds of appeal were expressed, and is simply an argument about how subparagraphs ought to be counted. We do not consider that a simple count of the grounds of appeal pursued in each appeal is a useful indicator of 'the strength of the claims made by each party' within the meaning of s 60(3)(c) of the Act, or of the 'nature and complexity of the proceedings' under s 60(3)(d) of the Act. What is relevant to those matters is the substance of the grounds of appeal pursued by the appellants. It is evident from our decision in Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210 that all of the grounds of appeal advanced, in both appeals, were of substance and reasonably arguable, notwithstanding that they were ultimately unsuccessful before us. We reject the idea that any of the grounds of appeal pursued by either appellant could fairly be said to have had no tenable basis. Nothing about those grounds of appeal seems to us to be out of the ordinary. Further, we do not consider that there is anything about the relative strengths of the appellant's case and the respondent's case in either appeal that constitutes special circumstances warranting an award of costs.

Did the complexity of the appeals give rise to special circumstances?

Ms Yelda relied upon s 60(d) of the Act, arguing, in effect, that the appellants had conducted their cases in such a way as to make the hearing of the appeals unnecessarily complex, and that this constituted special circumstances warranting an award of costs.
Ms Yelda initially argued that the fact that Sydney Water was represented by senior counsel and a firm of solicitors, and Vitality Works was represented by counsel and a firm of solicitors, constituted special circumstances because, under s 45 of the Act, a party must represent itself in the Tribunal unless leave is granted for that party to be represented by another, including a legal practitioner.
We reject this argument. The Act provides, in s 45(1) and (2): 45 Representation of parties (1) A party to proceedings in the Tribunal - (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave - (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party. (2) However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made. Note - A Division Schedule for a Division of the Tribunal may, in some cases, allow certain kinds of persons to represent parties in proceedings allocated to that Division without requiring the leave of the Tribunal.
The proceedings the subject of the application for an award of costs are internal appeals under the Act.
The Act provides, in Schedule 3, Clause 9, with respect to proceedings in the Administrative and Equal Opportunity Division of the Tribunal (in which these proceedings were heard at first instance): 9 Rights of representation and appearance (1) Despite section 45 of this Act, a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.
Having regard to s 45(2) of the Act, the leave of the Appeal Panel was not required for the parties to the appeals to be legally represented.

Sydney Water

Sydney Water argued that the issues were not unnecessarily complex, and that Ms Yelda had dealt adequately with the issues at first instance when she was unrepresented.
Sydney Water identified that legal representation was permitted without leave in the appeal, and submitted that the fact of legal representation is not, by itself, indicative of complexity. It is not, by itself, sufficient to constitute special circumstances or to establish that the appeal was out of the ordinary.

Vitality Works

Vitality Works made the point, in relation to this part of the argument, that Ms Yelda, in her submissions, had comingled the conduct of Sydney Water and Vitality Works in relation to the conduct of the appeal, and had sought to make both appellants responsible for the whole of the conduct of the appeal on the appellants' side in a way that was impermissible.
Vitality Works said that, in arguing that the appeal had been made unnecessarily complex, Ms Yelda could only, fairly, point to the following aspects in relation to Vitality Works: 1. Vitality Works' reliance on 12 grounds of appeal, 2. The fact that Vitality Works' submissions were 22 pages long, 3. The assertion that Vitality Works 'took every point', 4. The fact that Vitality Works was represented by Counsel and solicitor.
Vitality Works said that it initially pleaded 10 grounds of appeal, which were then reduced to 9. Those grounds were all issues which were argued at first instance.
Vitality Works said that its 22 page written submissions were approximately one-fifth of the length of the materials filed by Ms Yelda on appeal. They were not verbose or confusing, but represented a genuine attempt to articulate the arguments relied upon by Vitality Works on appeal.
Vitality Works pointed out that it had not, in fact, taken every point, evidenced by the dropping of one ground of appeal. In addition, it was argued, there can be no proper objection to a party arguing all the points which fairly support its case. Further, it argued that being represented is not an indication of special circumstances, or in any way out of the ordinary.

Ms Yelda's reply

Ms Yelda argued, in her reply to the submissions of Sydney Water and Vitality Works, acknowledging that leave is not, in fact, required for representation in the jurisdiction, that Schedule 3, part 5, clause 9, subsection 1 is entitled 'Special practice and procedure', which indicates that it is 'special' for a litigant to be represented in the Tribunal.

Determination as to whether there is anything about the nature and complexity of the proceedings which constitutes special circumstances warranting an award of costs to Ms Yelda

We reject the submission that the use of the word 'Special' in the heading 'Special practice and procedure' for part 5 of Schedule 3 implies that the provisions which follow that heading constitute 'special circumstances' or is intended to relate directly to s 60(2) of the Act in any way. Part 4 of Schedule 3 is entitled 'Special constitution requirements'. Schedule 3 is entitled 'Administrative and Equal Opportunity Division'. The Act provides that the Tribunal has four Divisions, and each Division of the Tribunal is the subject of a Schedule which sets out various aspects of the manner in which the work of the Tribunal is to be conducted which are particular (or 'special') to that Division.
Ms Yelda argued that the matter was of such complexity that she had no alternative but to obtain legal advice and representation, and that this placed her in an unusual situation in the context of Tribunal proceedings.
In the context of an internal appeal from a decision regarding a matter heard at first instance in the Administrative and Equal Opportunity Division of the Tribunal, the fact that all parties were represented before the Appeal Panel does not constitute special circumstances for the purposes of s 60(2). Whilst it is not uncommon for parties to represent themselves in such matters, being legally represented is not out of the ordinary.
We agree that there were some complex issues argued in the appeals. However, this is not out of the ordinary in internal appeals in the Tribunal.
We do not consider that there is anything about the nature and complexity of the matter which constitutes special circumstances warranting an award of costs under s 60(2) of the Act.

Ms Yelda

The Act provides, in s 36(1) and (2): 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.
Ms Yelda argued, in effect, that, having regard to the guiding principle in s 36 of the Act, when an individual of limited means (in fact, without paid employment at the time of the hearing) is in a contest with a Government agency and a corporation, in circumstances where she requires legal advice and representation simply to understand the case against her because the opposing parties have made it very complicated, then, as a matter of public policy, the Government agency and the corporation ought to foot the bill if they lose. Otherwise, it was argued, such entities could prevent a complainant from seeking redress in the Tribunal by simply making it too costly for them.

Sydney Water

Sydney Water argued that its size and resources had no impact upon the complexity of the appeal, or the question of whether it was out of the ordinary such that special circumstances existed.
Sydney Water noted that although Ms Yelda had mentioned s 60(3)(f) in her submissions on costs, no argument was developed in relation to that section.

Vitality Works

Vitality Works rejected as unfounded any suggestion that it used its size or resources to unfairly advance its interests to Ms Yelda's detriment.

Decision in relation to whether the relative economic position of the parties gives rise to special circumstances warranting an award of costs

There was no evidence before us at any stage of these proceedings as to the economic circumstances of either of the appellants or Ms Yelda, though we accept that Sydney Water is a statutory corporation owned by the Crown in right of the State of New South Wales.
Ms Yelda's submissions in relation to this issue were made on the basis that she had very limited means at the time of the appeal, and that Sydney Water had access to the means of the State of New South Wales, and that Vitality Works had access to considerable funds. Assuming, for the purpose of dealing with the point, that this is all true, we do not consider that those circumstances, alone or taken together with the nature of the proceedings or the complexity of the proceedings, are sufficient to constitute special circumstances warranting an award of costs. They are not out of the ordinary. Much of the work of the Administrative and Equal Opportunity Division of the Tribunal consists of a challenge to a decision made by a state government entity by a private citizen.

Conclusion

We do not consider that special circumstances warranting an award of costs arose in the appeals the subject of this matter.

Order 1. The respondent's application for an award of costs is refused.

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: 24 March 2021

Administrative Decisions Tribunal Act 1997(NSW)

Strata Schemes Management Act 1996(NSW)

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