The Appeal Panel has dismissed two appeals, the first brought by Mr Wright against the Commissioner of Police, and the second brought by the Commissioner of Police against Mr Wright: see Wright v Commissioner of Police [2014] NSWCATAP 67 (23 October 2014). The appeal related to decisions of the Tribunal at first instance in relation to complaints of anti-discrimination and victimisation in employment brought by Mr Wright, a police officer, against his employer, the Commissioner.
The matter remaining to be dealt with is costs. At hearing both parties had reserved their positions in relation to any application for costs, pending the outcome of the appeal. The decision contained the following order: 'Any applications for costs to be dealt with in accordance with the directions given at para [134] of the reasons for decision'. The parties chose to make submissions, and the matter is being dealt with on the basis of the submissions without any hearing (see s 50(2), Civil and Administrative Tribunal Act 2013 (NCAT Act)).
The ordinary rule in the Tribunal is that: 'Each party to proceedings in the Tribunal is to pay the party's own costs': s 60(1), NCAT Act. Section 60(2) provides that: '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.' What may constitute special circumstances is the subject of s 60(3) of the Act. If the Tribunal decides to make an award of costs, s 60(4) provides that it 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'. 'Costs' includes 'costs of, and incidental to the proceedings': s 60(5).
The Commissioner's submissions were filed 13 November 2014. Mr Wright filed his submissions on 14 November 2014. The Commissioner filed submissions in reply on 2 December 2014.
The Commissioner's principal submission is that each party bear its own costs in respect of each of the appeals. On the other hand if the Tribunal is minded to make a costs order in Mr Wright's favour then any apportionment of costs should recognise the relatively small measure of success achieved by him in having the Commissioner's appeal dismissed. If that approach were to be adopted, the Commissioner should not be required to pay more than 5% of Mr Wright's costs.
Mr Wright's principal submission is that the Commissioner pay one third of his costs of both appeals; or in the alternative that that each party bear their own costs in relation to Mr Wright's (lost) appeal; and the Commissioner pay Mr Wright's costs in relation to the Commissioner's (lost) appeal.
The ordinary rule, as noted, is that each party bear their own costs of proceedings in the Tribunal. A feature of tribunal statutes, including this Tribunal's statute, is a less draconian approach than is seen in the courts to the question of costs, where the usual rule is that costs follow the event. Consequently little weight is usually attached at first instance in tribunals to the outcome of the proceedings as a special circumstance that might, of itself, justify an award of costs. As the list of special circumstances set out in s 60(3) suggest, there must, usually, be some additional feature(s) of significance in the way the case was conducted or in relation to the bringing of the case at all which tips the balance, and might justify an award of costs.
Section 60(3) provides:
(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.
However Appeal Panels have tended to accord more weight to outcome as a significant factor in cases where the losing party has brought an appeal and again been unsuccessful. This is the situation here in respect of both appeals.
The Commissioner's appeal was confined to the one part of the decision of the Tribunal at first instance where it upheld a complaint of direct discrimination against the Commissioner in the way the Commissioner dealt with a transfer application made by Mr Wright. The Tribunal dismissed Mr Wright's other six complaints.
While we dealt with appeals from both sides, it is correct as the Commissioner submits that the bulk of the proceedings involved consideration of Mr Wright's appeal. Our decision dealt predominantly with Mr Wright's appeal. It is noteworthy that the Commissioner does not press, in either his principal submission or his reserve submission, for any of his costs of Mr Wright's appeal. Given the greater weight usually given to outcome as a significant consideration at the appeal level, this is a position of benefit to Mr Wright. He is not being exposed to the possibility of a relatively significant costs order being made against him. We agree with the Commissioner's submission that this is a factor that should be taken into account.
Mr Wright's submissions refer to the circumstances listed at s 60(3)(a), (c), (d), (f) and (g). They also refer to obligations of the Commissioner as a model litigant, set out provisions from the Model Litigant Policy for Civil Litigation and refer to various aspects of the way the Commissioner conducted his case. Based on these submissions, Mr Wright submitted that the Commissioner should bear one third of the overall costs of both appeals.
In particular Mr Wright compared the sum of $5000 awarded as compensation in respect of his successful complaint with the total of his costs of his proceedings. He said that all-up, covering first instance and the appeal, they were of the order of $100,000. In connection with the appeal, he appended his solicitor's and barrister's professional fee invoices, totalling $31,620.44. He referred to Tribunal case-law in which recognition had been given to an imbalance of this kind in favouring a more sympathetic approach to the award of costs to a successful complainant (see Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258). He noted the observation in Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 at [34]:
If, in a particular matter, seeking the ADA's protection of a fundamental human right is undermined by the cost of doing so, then it must be so that a single circumstance could, in the circumstances, justify the making of a costs order.
As the Commissioner noted in reply, this is a case under the earlier costs rule applying to this class of case, and the observation was not itself supported by authority.
In reference to s 60(3)(a) and (c), Mr Wright's submissions emphasised his success in relation to the complaint relating to the transfer, and questioned the Commissioner's judgment in bringing an appeal in relation to that. He considered (in reference to s 60(3)(d)) that the complexity of the proceedings was demonstrated by the extent of the hearing at first instance, the time taken to deliver the decision, its length, and similarly the length and detail of the Appeal Panel decision. He criticised (s 60(3)(f)) the Commissioner's failure to pay the damages order by the date specified in the first instance order (the payment was two weeks' later), and referred finally as other factors to the significance of the finding of discrimination in relation to the transfer decision, and the implications he saw the decision as having had in relation to his marriage and his ability to provide care to his children. This perspective was contested by the Commissioner's submissions in reply, who referred to the practical circumstances at the time, and that had the transfer been successful he would still have been located at a considerable distance from the children's home (with their mother). The Appeal Panel noted the same point in its decision.
The Commissioner attributed much of the length and expense of the hearing to his pursuit of the complaints that were unsuccessful. The main complaints were founded on the indirect discrimination protections given by the Anti-Discrimination Act 1977.
The Appeal Panel has noted in the past that in some circumstances departure from the model litigant policy may provide a special circumstance in relation to the consideration of a costs application in the Tribunal: see, for example, Kiernan v Commissioner of Police, New South Wales Police (No. 3) (GD) [2010] NSWADTAP 32 at [8]; Department of Attorney General and Justice v Schoeman [2012] NSWADTAP 31; and, recently, the observations of the Court of Appeal in AHB v NSW Trustee and Guardian [2014] NSWCA 216 at [41], [46]-[47].
As the Commissioner's submissions in reply note, the Commissioner did have some success on a point of law in the appeal relating to the finding against the Commissioner, but the Appeal Panel nevertheless considered that the ultimate conclusion of the Tribunal did satisfy the correct test. The Commissioner replied at some length to the suggestion of any departure from the model litigant policy.
This case was no more than one which was contested in a usual way by a major employer. The case raised important issues in relation to decision-making in respect of rosters, especially ones with elements of inflexibility, because of the nature of the services performed (here police services) and with special rules for peak holiday periods. The issues raised went to the extent to which decisions that impacted on the ability of employees to meet their child care responsibilities might infringe an anti-discrimination law which sought to afford protection to those people. We are satisfied that, overall, the Commissioner conducted his case in an appropriate and acceptable way.
In our view, the preferable decision is, as submitted by the Commissioner in his principal submissions, that each party bears their own costs of both appeals.
[2]
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
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Decision last updated: 21 April 2015