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

NCAT Appeal Panel|2021-11-12

The Owners of Strata Plan Number 55773 v Roden [2020] NSWCATAP 197 Vietnam Veterans' Association of Australia (New South Wales Branch Inc) v Gallagher [1994] FCA 489, (1994) 52 FCR 34 Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 147 Whisprun Pty Ltd v Dixon [2003] HCA) 48, (2003) 200 ALR 447 Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 177 Category: Principal judgment Parties: In 2021/00207178: Reem Yelda (Appellant) Sydney Water Corporation (Respondent)

In 2021/00207182: Reem Yelda (Appellant) Vitality Works Australia Pty Ltd (Respondent) Representation: Counsel: S Omeri (Appellant) H El-Hage (Sydney Water Corporation) K Edwards (Vitality Works Pty Ltd)

REASONS FOR DECISION

By Notices of Appeal filed 20 July 2021 Reem Yelda ("the Appellant") appealed against orders of the Administrative and Equal Opportunity Division of the Tribunal of 22 June 2021 dismissing the Appellant's applications for orders for costs against each of Sydney Water Corporation ("Sydney Water") and Vitality Works Pty Ltd ("Vitality Works") (Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 177).
The Appellant's costs applications arose from decisions of the Tribunal of 30 April 2021 ordering each of Sydney Water and Vitality Works to pay the Appellant the sum of $100,000 by way of damages pursuant to the provisions of the Anti-Discrimination Act 1977 (NSW) ("the ADA") ("the substantive proceedings")..
The Appellant sought that, in lieu of the orders of the Tribunal at first instance, each of Sydney Water and Vitality Works be ordered to pay her costs of the substantive proceedings before the Tribunal or, if the Appeal Panel was not so minded, that the orders of the Tribunal at first instance be set aside, and the Appellant's costs applications be remitted to the Tribunal at first instance for rehearing.
Each Respondent sought the dismissal of the Appellant's appeal against it.

The Reasons for Decision of the Tribunal at first instance

The Appellant's costs applications were determined without an oral hearing in accordance with the provisions of s 50(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). That order is not controversial for present purposes. Having been satisfied that the issue of costs could be adequately determined in the absence of the parties by considering their written submissions (Reasons [6]), under the heading "Do special circumstances exist justifying an order for costs" the Tribunal identified, correctly, the "relevant principles" governing the costs applications in accordance with s 60 of the CAT Act.
Section 60 of the CAT Act relevantly provides: "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 s 36(3); (g) any other matter that the Tribunal considers relevant."
The Tribunal recorded (Reasons at [9]), by reference to the decision of the Appeal Panel in Kadsielski v Guca 1 Pty Limited [2018] NSWCATAP 223, that "special circumstances" were circumstances that are "out of the ordinary", but did not have to be "extraordinary or exceptional", that each case turns upon its own particular facts, and that 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".
The Tribunal then considered (Reasons at [11]) whether, as the Appellant submitted, the Respondents had been responsible for prolonging unreasonably the time taken to complete the proceedings. The Tribunal referred to the Appellant's contention that the Respondents unreasonably prolonged the proceedings by pursuing unmeritorious appeals to the Appeal Panel and that Vitality Works had further unreasonably prolonged the time taken to complete the proceedings by pursuing an unmeritorious appeal to the Court of Appeal (Reasons at [12]).
The Tribunal was not satisfied that any of the unsuccessful appeals could be described as "unmeritorious" or "unreasonable", finding that they were "reasonably arguable" (Reasons at [13]). The Tribunal recorded that the Appeal Panel, or the Court of Appeal, as the case maybe, was "best placed to judge such matters, and make appropriate costs orders as a consequence of any finding that the appeal proceedings were "unmeritorious"" (Reasons at [14]).
The Tribunal did not consider it "appropriate or open to us to reach a different conclusion (to that of the appellate court or tribunal in the substantive proceedings) for the purpose of awarding costs" (Reasons at [16]). The Tribunal also rejected the Appellant's contention that prosecution of an appeal was not "usual" and was capable of establishing a special circumstance by reason of the comparative infrequency of appeals against decisions of the Tribunal (Reasons at [17]). The Tribunal recorded that the "mere fact that most decisions are not appealed against does not in our view make out a special circumstance warranting a costs order whenever an appeal is lodged", and that it was "not demonstrated without more that a party has been responsible for prolonging unreasonably the time taken to complete the proceedings merely because that party has pursued an appeal" (Reasons at [18]).
The Tribunal considered the Appellant's contention that the Respondents were responsible for unreasonably prolonging the proceedings by their "pursuit of a split hearing between liability and damages" (Reasons at [19]). By reference to the transcript of a Directions Hearing at which the splitting of the determination of the issues of liability and damages was canvassed, the Tribunal recorded (Reasons at [20]) that the Appellant had ultimately agreed to a split hearing and that the transcript did not demonstrate that the Respondents had pursued a split hearing "strategy" in order to "prolong the proceedings with the view to putting pressure on the Applicant to abandon or compromise her claims" (Reasons at [21]).
The Tribunal rejected the contention of the Appellant (Reasons at [22]) that "In any event a split hearing was unusual or out of the ordinary so as potentially to be a special circumstance within the meaning of s 60 of the CAT Act". The Tribunal observed that a split hearing may prolong matters, but may also reduce costs and hearing times if liability is not established, which was "the rationale for there being a split hearing in the proceedings before us" (Reasons at [23]).
The Tribunal was accordingly not satisfied that the asserted pursuit of a split hearing "strategy" demonstrated that the Respondents had been responsible for unreasonably prolonging the time taken to complete the proceedings, or a special circumstance warranting an award of costs against them (Reasons at [24]).
The Tribunal also rejected (Reasons at [25]) the contention of the Appellant that the appeal to the Court of Appeal by Vitality Works had unreasonably prolonged the proceedings before the Tribunal, noting that each of the Tribunal and the Court of Appeal had rejected Vitality Works' stay applications.
The Tribunal then evaluated the relative strengths of the claims made by each of the parties, and considered whether either Respondent had no tenable basis in fact or law for its claims, and engaged with the contention of the Appellant that the "majority, if not all, of the contentions of the Respondents had no tenable basis in fact or law or were extremely weak" (Reasons at [26]).
The Tribunal observed that establishing that a claim has no tenable basis in fact or law involved a "high threshold", a claim being lacking in substance when it can be demonstrated that it has no factual basis (Reasons at [27]). The Tribunal recorded that the "mere fact" that the proceedings had been decided against the Respondents and in favour of the Appellant did not "itself necessarily indicate that the Respondents' argument had no tenable basis in fact or law" (Reasons at [28]).
The Tribunal rejected the submission of the Appellant that the contentions advanced by the Respondents in the substantive proceedings had "no tenable basis in fact or law or were extremely weak" or that they were "out of the ordinary for proceedings of this type" (Reasons at [29]). The Tribunal thus was not satisfied that there was "anything about the relative strength" of the respective cases which constituted special circumstances warranting an award of costs (Reasons at [30]).
The Tribunal then considered the nature and complexity of the proceedings. The Tribunal recorded (Reasons at [31] to [33]) the basis upon which the Appellant asserted that the nature and complexity of the proceedings was capable of constituting special circumstances. The Tribunal agreed "in general" (Reasons at [35]) with the submissions of the Respondents, recording that the damages hearing "did not involve exceptionally complex issues of fact and law, particularly for proceedings under the ADA so as to make out a 'special circumstance' within the meaning of s 60(3)(c) of the CAT Act".
The Tribunal then considered whether a party had refused or failed to comply with the duty imposed by s 60(3) of the CAT Act, obviously, as the parties to the appeal recognised, intended to be a reference to s 36(3) of the CAT Act. The Tribunal rejected the Appellant's contention that the failure to disclose an email until it was revealed midway through cross-examination of a witness at the damages hearing constituted a requisite failure to comply with the duty imposed by s 60(3)(f) of the CAT Act, again, obviously intended to be a reference to s 36(3) of the CAT Act (Reasons at [36]). The reasons for so finding were then recorded (Reasons at [37]).
The Tribunal considered "other matters" within s 60(3)(g) of the CAT Act upon which the Appellant relied (Reasons at [38] to [57]). The Tribunal rejected the submission of the Appellant that the fact that her losses may exceed the jurisdictional limit of the Tribunal could constitute special circumstances or be a basis for awarding costs (Reasons at [41]). The Tribunal recorded that the Appellant "chose to pursue her claims in the Tribunal and with that choice came the jurisdictional limit on damages".
The Tribunal referred to the Appellant's assertion that Sydney Water had breached the "model litigant policy" (Reasons at [42]). The Tribunal considered the various complaints of the Appellant in reliance upon the model litigant policy (Reasons at [43]), which included the asserted failure to "keep costs to a minimum by not requiring the Applicant to prove matters 'which it must have known to be true'".
The Appellant relied on the asserted failure of Sydney Water to provide a "genuine" apology to her (Reasons at [44]). The Tribunal was not satisfied that Sydney Water failed to comply with its obligations as a model litigant, finding that it was "entitled to defend the proceedings both on the question of liability and damages" (Reasons at [45]). The Tribunal found Sydney Water to have advanced in the proceedings "reasonably arguable contentions which if successful would have resulted in damages being awarded at a level less than the jurisdictional limit" (Reasons at [45]). The Tribunal was not satisfied that Sydney Water was in breach of the model litigant policy by failing "promptly" to offer to settle for the jurisdictional limit or by requiring the Applicant to prove matters which she asserted that Sydney Water must have known to be true (Reasons at [46]).
The Tribunal referred to, and relied in its decision on the fact that, on 1 April 2020 Sydney Water offered to settle the Appellant's claim for the sum of $117,000, $17,000 in excess of the jurisdictional limit of the Tribunal (paragraph (Reasons at [49]). The Tribunal was not satisfied that the apology offered by Sydney Water on 12 April 2016 was "disingenuous" or "issued in bad faith". The Tribunal noted that the Appellant had "deliberately asked that the question of damages flowing from this apology be dealt with in other proceedings" and that the Appellant had not sought "orders for an apology under the Anti-Discrimination Act". The Tribunal further recorded that it was not satisfied that the alleged inadequacy of the apology would warrant an order for costs or constitute a relevant special circumstance (Reasons at [50] - [51]).
The Tribunal considered the contentions of the Appellant that offers of settlement by the Respondents were "derisory" (Reasons at [52]). The Tribunal was not satisfied that the offers of settlement referred to by the Appellant were made without good faith, or that they were "derisory", observing that "both Respondents put forward a number of contentions at the damages hearing which in our view were reasonably arguable and which, if successful, would have reduced the damages award significantly" (Reasons at [56]) The Tribunal was thus not satisfied that the offers of settlement referred to by the Appellant amounted to a "special circumstance" justifying an order for costs.
The Appellant relied upon the effect on her of the proceedings in support of her costs claims. The Tribunal noted that proceedings being "extremely emotionally taxing" for the Appellant was "not unusual, particularly for proceedings under the Anti-Discrimination Act in the case of complainants" and found "it could not be said to amount to a 'special circumstance'" (Reasons at [58]).
The Tribunal then considered in detail Sydney Water's offer of 1 April 2020 (Reasons at [59] to [95]). For the reasons which the Tribunal there recorded, the contention of Sydney Water that the Appellant had unreasonably rejected its offer of settlement was rejected. The Tribunal recorded (Reasons at [75]) its agreement with the submissions of the Appellant "in general terms" with respect to her rejection of Sydney Water's offer, and further (Reasons at [94]) that "Absent some public acknowledgment of unlawful conduct and/or an apology we are not satisfied that it was unreasonable (of the Appellant) to reject the offer" made by Sydney Water. As none of the grounds of appeal directly or indirectly raises this issue, and the finding of the Tribunal was favourable to the Appellant in any event, it is unnecessary to refer in detail to those passages of its reasons.

Principles governing the appeals

The Appellant appeals pursuant to s 80 of the CAT Act, which provides (s 80(2)(b)) that an appeal against a decision, other than an interlocutory decision, including an ancillary decision of the Tribunal at first instance, lies as of right on "any question of law". Whether the decisions under appeal are "ancillary" within s 4 of the CAT Act, or "any other kind of decision", not being interlocutory by nature, it is not in contest that the Appellant's appeals fall within the jurisdiction of the Appeal Panel.
The Appellant's Notices of Appeal articulate 9 grounds of appeal, most of which are common to both appeals. Although it is suggested by the Respondents that the challenges articulated by those grounds lacked merit, and, by Sydney Water, that the grounds are in substance attempted "merit reviews", it is not in contest that their terms raise questions of law. The Appellant did not seek leave to appeal and, it is not suggested, correctly in our view, that a grant of leave was required.
It is not in doubt, or controversial in the appeal, that the orders of the Tribunal at first instance involved the exercise of a discretionary power. That is made clear by the terms of s 60(2) of the CAT Act, which provide that the Tribunal "may" award costs if satisfied that there are special circumstances warranting an award of costs. Though not unfettered, the discretion created by s 60 is undoubtedly "broad" as the expression "may" have regard to the six matters articulated in s 60(3) and "any other matter that the Tribunal considers relevant" in s 60(3)(g) confirm.
The principles governing appeals against discretionary judgments are not in doubt and need only be briefly reiterated. The decisions of the Tribunal at first instance are presumed to be correct in law (Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 499). To enliven appellate intervention, the Appellant must demonstrate that the Tribunal erred with respect to a question of law.
Inherent in discretionary decisions is the likelihood that "two different (judicial) minds might reach widely different decisions without either being appealable" and that "it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible and is, in fact, plainly wrong, that an appellate body is able to interfere" (Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345; cited with approval by Brennan J in Norbis v Norbis [1986] HCA 17, (1986) 161 CLR 513 at 540 ("Norbis")).
In Gronow v Gronow (1979) 144 CLR 513, [1979] HCA 63, ("Gronow"), Stephen J said (at 519) that "When no error of law or mistake of fact is present, to arrive at a different decision which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge".
In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], Heydon JA identified as errors of law: 1. An error of legal principle; 2. A material error of fact; 3. Taking into account irrelevant matters; 4. Failing to take into account relevant matters; 5. Arriving at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
His Honour observed that, even though the appeal court might conclude that it would have exercised the discretion differently if it had decided the case at first instance, any such conclusion would be immaterial.
The following questions of law may be added to the matters identified by Heydon JA: 1. Actual or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337)); 2. Denial of natural justice or procedural fairness in circumstances where allowing an appeal and ordering a rehearing would not inevitably result in the same outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141), and; 3. Failure to provide adequate reasons for the decision-maker's decision (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231).
The fact that the Tribunal makes an error does not necessarily mean that the decision should be set aside, unless the error is material in the sense that it "might' or "may" have made a difference to the decision (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321).
Challenges to findings of fact of the Tribunal at first instance which were not made in reliance upon findings with respect to credibility can only succeed if it is established that such findings were "wrong" (Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296 at 307).

The grounds of appeal

The Appellant filed extensive written submissions in support of her grounds of appeal. Each of the Respondents filed comprehensive written submissions in reply to those submissions. The Appellant filed extensive submissions in reply to the submissions of each of the Respondents. Each party also made oral submissions on the hearing of the appeals.

Ground 1

Ground 1 of the Appellant's Notice of Appeal asserted that "The Tribunal erred in misconstruing or misapplying the concept of "special circumstances" in s 60(2) of the CAT Act".
After referring to a number of authorities (paragraphs 8, 9 and 10), which were consistent with the statement of principle recorded in the Tribunal's decision at first instance, the Appellant submitted (paragraph 11), correctly, that relief pursuant to s 60(2) of the CAT Act was discretionary. The Appellant also submitted that, in determining a costs application pursuant to s 60 of the CAT Act, the Tribunal "must first consider whether it is satisfied that special circumstances warranting an award of costs exist, without which its discretion to award them will not be enlivened. Once the Tribunal is so satisfied, it must then go on to consider whether to exercise its discretion to award costs". Although we do not believe that anything turns on the interpretation of s 60 for present purposes, we perceive that the terms of s 60(2) of the CAT Act, which creates a discretion which can "only" be potentially enlivened if special circumstances are established, provide support for that interpretation (Randwick Corporation v Rutledge (1959) 102 CLR 54, per Windeyer J at [94]).
The crux of the Appellant's complaint pursuant to this ground was articulated at paragraph 14 of her submissions, and was that the Tribunal at first instance erred in law "by applying a standard of extraordinariness or exceptionality" which s 60 did not impose. In support of that contention the Appellant contended that the Tribunal at first instance erred in that, having accepted evidence that only 8% of applications finalised by the Administrative and Equal Opportunity Division of the Tribunal in 2019/2010 were appealed, the Tribunal failed to find that circumstance "took the case out of the ordinary course, either on its own or together with other matters raised in connection with s 60(3)(b) or other heads in s 60(3)" (paragraph 14(a)).
The Appellant thus submitted that: "Plainly, where a case falls into a category which involves only 8% of cases and not the remaining 92% of cases, it must be out of the ordinary course, that is the course followed by the majority (92% of cases). The ordinary course must be the course followed by the majority of cases."
The Tribunal at first instance was thus submitted to have erred by "applying a higher standard than that which the case law indicates is imported by the expression special circumstances."
The second particular matter relied upon by the Appellant in support of this challenge was that a "split hearing" as occurred in this case took the case "out of the ordinary course", this being asserted to further demonstrate that the Tribunal at first instance applied a higher standard than that which the case law indicated was imported by the expression "special circumstances".
The third particular matter relied upon by the Appellant in support of this challenge was that the conclusion of the Tribunal at first instance that the damages hearing did not involve "exceptionally complex issues of fact and law … so as to make out a 'special circumstance' which would justify an award of costs" and the use of the word "exceptionally" and "linking" of the same to the concept of special circumstances, demonstrated that the Tribunal applied a standard of "exceptionality" to the Appellant's case which was contrary to authority.
In its general response to the Appellant's challenges, Sydney Water submitted (paragraph 8) that "in a number of instances", the Appellant's contentions were "in substance, a repetition of arguments made below, under the guise of alleged error". As will be seen, that contention identifies the critical issue with respect to this, and most of the Appellant's grounds, namely whether the Tribunal at first instance erred in law, or, by affording the weight it did to the evidence with respect to relevant considerations, merely reached a permissible decision with which others could reasonably disagree. As the authorities referred to above make clear, merely persuading us of the latter scenario cannot enliven appellate intervention in the absence of demonstrated error on a question of law.
In support of its resistance to this challenge, Sydney Water referred (paragraph 12) to the Judgment of Bell P, with whom Ward JA agreed, in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at 77, and submitted that, consideration of the reasons of the Tribunal "in whole" would lead the Appeal Panel to reject this ground. Paragraphs [17], [18], [22, [23], [30], [35], [40], [51], [57], [58] and [96] of the Reasons of the Tribunal at first instance were said to support that submission.
Sydney Water submitted (paragraph 14(B)) that the Appellant's "approach" meant that "any unsuccessful appeal necessarily equates" to "special circumstances" for the purposes of s 60 of the CAT Act, contrary to the "principle" set out in Kasielski v Guca 1 Pty Ltd [2018] NSWCATAP 223 at [14] to [16] ("Kasielski"). The Tribunal at first instance set out (Reasons at [9]) those passages of the judgment in Kasielski. We apprehend the crux of Sydney Water's contentions was that, the discretionary determination of the first consideration was fact sensitive, and informed by the "underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs" (Kasielski at [16]).
Vitality Works referred (paragraph 12) to the decision of Edmonds J in Commissioner of Taxation v Johns (2005) 144 FCR 112 at [109] - [110], in which "special circumstances" were said to involve "something unusual or different to take the matter out of the ordinary course" and that the term was "obviously designed to accommodate a great variety of circumstances which are 'out of the ordinary course'".
Vitality Works submitted (paragraph 14(d)) that the "mere fact of appeal, without more" was insufficient to satisfy the requirement of special circumstances. It was further submitted (paragraph 14(e)) that the "frequency with which appeals are taken is not an indicator of the ordinariness or otherwise of proceedings". It was further submitted to be "an ordinary part of litigation to consider whether a decision warrants appeal".
Vitality works further submitted (paragraph 16), that the Appellant having agreed to "split" the proceedings between liability and damages was precluded from relying upon the "split hearing" in support of her allegations with respect to "special circumstances". In support of that proposition, Vitality Works referred to a number of authorities (Metwally v University of Wollongong (1985) 60 ALR 68 at 71, Chilcotin Pty Limited v Cenelage Pty Limited [1999] NSWCA 11 at [15] and 18 and Nutek Constructions Pty Limited v Slotwinski [2021] NSWSC 832 at [56]).
We accept that, generally, a party cannot advance a case on appeal which was not agitated at first instance, unless that does not involve or rely upon any matter which, had it been raised previously, the other party or parties could have adduced evidence to refute, or otherwise have responded to (Whisprun Pty Ltd v Dixon [2003] HCA) 48, (2003) 200 ALR 447).
Although relevant to whether the Appellant could properly advance her complaint in reliance upon the "split hearing" as constituting special circumstances, the Appellant's consent to that course did not preclude her from seeking to agitate that contention. In our view, the issue concerns the consequences of the "split hearing" rather than how it came about. Vitality Works submitted, pertinently in our view, that, in the circumstances, the issue arising from the "split hearing" was whether that "unreasonably" prolonged the duration or extended the scope of the proceedings. Vitality Works submitted that the Tribunal at first instance had directed itself to the correct question in that regard, and not erred in finding that the split hearing had not unduly prolonged the duration, or extended the scope of the proceedings.
As far as the asserted complexity of the proceedings was concerned, Vitality Works submitted (paragraph 18) that "just because a statute has not been the subject of higher court interpretation does not mean it is complex", it being further submitted that there was no "complexity" of the kind which required the Tribunal at first instance to find special circumstances, unlike the decision of the Appeal Panel upon which Vitality Works relied in The Owners of Strata Plan Number 55773 v Roden [2020] NSWCATAP 197.
The Appellant filed comprehensive submissions in reply to the submissions of each Respondent. The responding submissions of the Appellant disputed the submissions of each of the Respondents, and reiterated the substance of many of the Appellant's submissions in chief.
Before engaging with the substance of this ground, it is appropriate to record two particular matters which emerge from the authorities. These have relevance with respect to most, if not all, of the Appellant's challenges.
The first matter is that courts have traditionally exercised restraint when determining appeals against orders for costs. In Beling v Victorian Legal Services (2021) VSCA 257 at 52, the Victorian Court of Appeal reiterated that: "Appeals from orders as to costs are rightly treated as exceptional and require this Court to exercise particular restraint. The authorities explain that the main rationale for that caution is that the trial judge is almost always best placed to assess in whose favour and to what extent the discretion as to costs should be exercised."
In New South Wales that principle finds statutory expression in s 101(2)(c) of the Supreme Court Act 1970 (NSW), which requires leave when an appeal is solely against an order for costs. As decisions such as Housman v Camuglia [2021] NSWCA 106 at [84] confirm, appeals against costs orders are generally allowed only where other grounds are agitated by way of appeal as of right, or where there is "an arguable error of sufficient importance either from the point of view of the parties, or from the point of view of the ordinary administration of justice to warrant the Court of Appeal taking the matter up and hearing it as a full appeal" (Port Line Limited v Lacey unreported, NSWCA 26 July 1996 per Priestley JA).
The second matter has recently been reiterated by the Court of Appeal in Orr in which Bell P, with whom Ward JA agreed, observed at [77] that decision-makers "commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others, Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expressions of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole".
His Honour further observed at [77] that an appellate court should not read passages from the reasons of tribunals "in isolation from other passages to which they may be related", but should read reasons "fairly and as a whole", and not with "a fine-tooth-comb attuned to identifying error". A "degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips" was also incumbent upon the appellate court.
Nothing to which the Appellant referred us establishes that it was not open to the Tribunal at first instance to conclude as it did (Reasons at [18]) with respect to the Appellant's reliance upon the asserted percentage of applications finalised by the Administrative and Equal Opportunity Division of the Tribunal in 2019/2020, which were appealed to the Appeal Panel. Without knowing far more about the nature and outcome of such appeals, or the extent to which that percentage was disproportionately low, compared with appeals from other civil courts or tribunals, it is difficult to see on what basis that statistic could advance the Appellant's claim.
As the Tribunal inferentially acknowledged, if the Appellant's contention is correct, then every case in which there was an unsuccessful appeal would result in a finding of special circumstances and an order for costs as a consequence. That would be a surprising outcome, and not one for which the terms of the legislation provide support. To the extent that the real thrust of this complaint related to the impact of an appeal on prolongation of the proceedings, the Tribunal considered that issue and provided adequate and cogent reasons for rejecting the Appellant's contention in that regard.
We do not consider that the Tribunal at first instance erred in rejecting the Appellant's contention that the statistics relied upon by her demonstrated that her case was "out of the ordinary course". We do not accept, particularly having regard to the exposition of the principles governing the exercise of discretion of the Tribunal at first instance, to which we have earlier referred, that the Tribunal imposed any higher or erroneous standard than "the case law indicates is imported by the expression special circumstances". As is not in doubt, the fact that a particular case may be "out of the ordinary course" statistically, without more, does not mean that it necessarily advances a claim of special circumstances.
Although involving bias complaints in the context of proceedings under the Migration Act 1958 (Cth), the judgment of the Full Court of the Federal Court of Australia in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 ("ALA15") is suggested to reveal the reluctance of courts to draw inferences with respect to particular cases in reliance upon statistical records of outcomes in other cases. In its reasons for rejecting the tender of court maintained outcome statistics, the Court recorded (at [38]) that to enable inferences to be drawn from "raw statistical material" that material would normally "need to be accompanied by a relevant analysis of the individual judgments" in order to make "an informed assessment of the significance of the raw statistics". Their Honours observed that "close analysis of some, many or all of the relevant judgments may reveal that they had been decided on a reasonable and plausible basis".
The Full Court referred with approval to the Judgment of Heerey J in Vietnam Veterans' Association of Australia (New South Wales Branch Inc) v Gallagher [1994] FCA 489, (1994) 52 FCR 34,(at [41]), and (at [43]) reiterated that "in the absence of further relevant material which puts such statistics in a proper and informed context, such raw statistics are generally likely to be irrelevant to the knowledge and information which is imputed to the hypothetical observer".
We have not been referred to anything which establishes that the Appellant relied upon more than "raw statistical material" before the Tribunal at first instance, or that it was provided with material of the kind identified by the Full Court in ALA15. In those circumstances, the Tribunal at first instance did not err by refusing to find special circumstances in reliance upon the statistical evidence, or by refusing to accept that such material could advance the Appellant's claim with respect to special circumstances. In reality, this complaint is that the Tribunal at first instance should have afforded the statistical data greater, and potentially decisive weight. Accepting that contention would, in our view, involve doing what the authorities referred to above forbid.
The second complaint made by the Appellant relates to the "split hearing" of the proceedings. The submissions of the Respondents, and particularly those of the Second Respondent, in our view raise a fatal obstacle to the possible success of this complaint. Quite apart from the fact that the Appellant consented to a "split hearing", nothing to which we have been referred, to the extent that any ground of appeal asserts it, establishes that the Tribunal erred in finding (Reasons at [23]) that the "split hearing" did not "unreasonably" prolong matters. As the Respondents submit, and the legislation provides, prolongation per se is insufficient, the prolongation must have been unreasonable.
Obviously, where liability was in issue, a split hearing had the potential advantage of avoiding costs which might otherwise be unnecessarily incurred. In circumstances where, at least on its face, the case involved Respondents with "deeper pockets" than the Appellant, the split hearing had potentially greater benefits for the Appellant than the Respondents. Whatever the reality, nothing to which we have been referred provides a basis for finding that the Tribunal was in error in fact or law in finding or inferring as it did at [23] or [24]. It is significant that the findings of primary fact recorded, and relied upon by the Tribunal at first instance, have not been challenged in the appeal. In substance, this complaint is a "weight" challenge. We are not persuaded that the Tribunal at first instance erred in law by not affording this factor the weight urged by the Appellant.
The third particular limb of this ground was substantially reliant on one paragraph of the reasons of the Tribunal at first instance (Reasons at [35]). The Tribunal there recorded that "the damages hearing did not involve exceptionally complex issues of fact and law, particularly for proceedings under the Anti-Discrimination Act 1977 (NSW), so as to make out a "special circumstance" which would justify an award of costs" within the meaning of s 60(3)(c) of the CAT Act".
It is important in our view to have regard to the reality that, earlier in its reasons, and correctly, the Tribunal identified the principles governing the determination of the costs applications before it. It is also important to differentiate between the findings of fact on the one hand, and inferences or conclusions drawn from or based upon them on the other in this paragraph.
Nothing to which we have been referred demonstrates that the finding of primary fact by the Tribunal at first instance that the damages hearing "did not involve exceptionally complex issues of fact and law" was "wrong" as that term is understood in law. More significantly, the Appellant has not established that the Tribunal at first instance erred by failing to find that, for proceedings of that kind, the substantive proceedings were "complex". Our reasons for that conclusion are further revealed below.
We do not accept that, when read in the manner described in Orr, the Tribunal at first instance erroneously "glossed" the provisions of s 60(3)(d) of the CAT Act, or imposed a higher onus on the Appellant than the legislation imposed. Only by the impermissible use of a "fine tooth-comb attuned to identifying error" could this complaint succeed. Were it necessary to do so, the "tolerance for looseness" of expression sanctioned in Orr provides further support for our conclusion.
Nothing to which we have been referred establishes that the Tribunal erred by concluding as it did with respect to "special circumstances" in reliance upon the asserted complexity of the damages hearing. The weight, if any, appropriate to be given to the complexity of the proceedings was clearly a matter for the Tribunal at first instance. The fact that other Tribunals at first instance may have afforded the asserted complexity of the substantive proceedings greater weight does not advance this challenge. It is not suggested that the Tribunal at first instance failed to have regard to this matter, or failed to give it proper genuine and realistic consideration (Resource Pacific Pty Ltd v Wilkinson (2013) NSWCA 33, at [9]).
For the reasons recorded above, we reject each of the challenges advanced by this ground. At their highest, the Appellant establishes that her application for costs could have had a different outcome. It has not been demonstrated that the Tribunal at first instance "misconstrued" or "misapplied" the "concept" of "special circumstances" in s 60(2) of the CAT Act.

Ground 2

Ground 2 asserted that the Tribunal erred in misconstruing and/or narrowing the Appellant's application for costs.
In support of this ground, which is in substance essentially a re-agitation of ground 1, the Appellant clarified (paragraph 17) that the ground "may also be "construed" as a failure by the Tribunal at first instance to "take account of relevant and material considerations, namely the whole of the Appellant's application for costs or the whole of the proceedings which were the basis of the Appellant's application for costs".
The Appellant submitted (paragraph 19) that the Tribunal at first instance had focused solely on the damages hearing (Reasons at [35]). That contention was asserted to be supported by the number of witnesses called by the Respondents at the damages hearing. The Tribunal at first instance noted (Reasons at [31]) that the Appellant submitted that "the number of witnesses called at each stage of the proceedings, demonstrates the complexity of the proceedings". The Tribunal was there addressing a submission made by the Appellant. Had it failed to do so, the Tribunal may have erred in law.
It is in our view clear from the reference to "each stage of the proceedings" (Reasons at [31]) that the Tribunal at first instance did not consider the Appellant's claim for costs in the limited way asserted on her behalf. Moreover, the number of witnesses called in a case does not, of itself, render the proceedings complex, or complex in a way that would advance a claim for costs pursuant to s 60 of the CAT Act. We have not been referred to anything which establishes that the finding of the Tribunal pursuant to s 60(3)(d) of the CAT Act was "wrong" by reason of the failure to expressly refer to witnesses other than those relied upon by the Appellant, or otherwise.
To the extent that, although not so articulated, this ground raises a failure to provide adequate reasons, we reject it. As the authorities confirm, and Mahoney JA said In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at [271] "the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion". To the extent that they did not find expression in the Tribunal's reasons, we are not persuaded that the matters relied upon in support of this complaint required such expression.
As with ground 1, other than by adopting the kind of approach which the Court of Appeal denounced in Orr, we are not persuaded that the Tribunal at first instance failed to have regard to any material part of the facts or circumstances of the case upon which the Appellant relied in support of her claim for costs, or which were otherwise relevant to the exercise of its discretion.

Ground 3

Ground 3 asserted that the Tribunal at first instance erred in failing to take account of the reason for the hearings in the Appellant's case being split. In support of this ground, the Appellant submitted (paragraph 24) that the circumstances in which a "split hearing" resulted, and the motivation of Vitality Works in relation to it, was not an "ordinary" basis for seeking a split hearing (paragraph 25). It was submitted that so doing "took the Appellant's case out of the ordinary course".
The Tribunal at first instance was criticised for failing to mention (Reasons at [17]) why Vitality Works sought a split hearing. We see no reason why, particularly when the Appellant consented to such course, Vitality Works being motivated, if in fact it was, to seek a split hearing because it perceived that it would gain some forensic or other advantage was a matter to which the Tribunal could, or should have had regard in determining whether there were special circumstances.
The Tribunal in our view was concerned only to look at what actually happened, not to speculate about the motivation of the parties to the proceedings in pursuing, by agreement, or otherwise, the particular course taken by the proceedings. We do not accept that the Tribunal erred in failing to refer to, or take into account, the asserted motivation of Vitality Works in seeking a split hearing. In our view the approach of the Tribunal at first instance, (Reasons at [23]), to the split hearing, and the findings there recorded, were open to it. Nothing to which we have been referred establishes that the Tribunal was "wrong" in any finding which it there made.
The submissions of the Appellant (paragraph 30) overlook the reality that the course adopted was consented to by the Appellant. Moreover, beyond making assertions with respect to the consequences of the split hearing, which are not supported by any finding of primary fact, or evidence to which the Appellant referred, we are unable to accept these complaints. It is improbable that, if Vitality Works was motivated in the ways asserted by the Appellant, that would not have become apparent during the hearing of, and reflected in the reasons for the decision of the Tribunal at first instance. We have not been referred to any finding in the decision in the substantive proceedings which supports the Appellant's submissions in support of this ground.
The Appellant's submissions overlook the inclusion in s 60(3)(b) of the CAT Act of the word "unreasonably". The prolongation of the time taken to complete proceedings is not, without such prolongation being unreasonable, sufficient. The submissions of the Appellant do not materially engage with the unreasonableness of the prolongation of the proceedings, or any asserted prejudice to the Appellant arising from such prolongation.
We do not accept that special circumstances were "created by the length of the proceedings" or that, if not, they "must have been created by the complexity of the proceedings" as asserted by the Appellant (paragraph 39).
This ground, as pleaded, asserts that the Tribunal at first instance erred in law by failing to have regard to a relevant fact or circumstance. For the reasons advanced above, we do not consider that the Appellant's reasons for consenting to a "split hearing", or the motives of either Respondent in seeking a "split hearing" was a relevant consideration. However, the Tribunal at first instance considered the Appellant's contentions, and adequately and cogently revealed why it rejected them. This challenge fails.

Ground 4

Ground 4 asserted that the Tribunal erred in misdirecting itself as to the test to be applied when considering s 60(3)(c) of the CAT Act. The Appellant made extensive written submissions in support of this ground (paragraphs 40 to 46). Section 60(3)(c) provides that, in determining whether special circumstances exist, the Tribunal may have regard to "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".
This ground is in substance a reiteration of earlier grounds of appeal.
The difficulty confronting this challenge, with which the Appellant's submissions do not materially engage, is the finding of fact of the Tribunal at first instance (Reasons at [29]) that the conclusion that "the contentions put forward by the Respondents had no tenable basis in fact or law or were extremely weak" was not established by the evidence. As the Tribunal correctly recorded (Reasons at [28]), the "mere fact that the Tribunal decided against the Respondents and in favour of the Applicant does not itself necessarily indicate that the Respondents' arguments had no tenable basis in fact or law".
We have not been directed to any finding of the Tribunal at first instance in the substantive proceedings, or subsequently before any appellate court or tribunal recording a finding in any of the terms asserted by the Appellant. The failure to establish that the Tribunal was "wrong" to find as it did (Reasons at [29]) is in our view fatal to this complaint. The Tribunal was entitled to, and did, evaluate and have regard to the relative strength of the claims made by each of the parties in the substantive proceedings, and determine whether a party had made a claim that had no tenable basis in fact or law.
In Dennis Family Corporation Pty Limited v Casey City Council (2008) VCAT 691 at [15] it was held with respect to s 109(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which is in identical terms to s 60(3)(c) of the CAT Act, that the section "certainly cannot mean that an unsuccessful party should be required to pay costs because at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to 'costs following the event'. It would compromise the general rule created in s 109(1)" of the Victorian statute. It was further held, by reference to the dictionary definition of the term, that the word "untenable" was stronger than "weak". The logic of the judgment, and fact that it was delivered in proceedings involving a statutory provision in identical terms to s 60(3)(c) of the CAT Act render it persuasive for present purposes.
We agree with the submissions of Vitality Works (paragraph 30) that the Appellant's reliance upon the decision in Sobalirov v Bullen [2020] NSWSC 1643 was unfounded. Sackar J there held ([7]) that s 60 of the CAT Act did not apply to the costs of the proceedings which had been removed from the Tribunal, which were then decided on the basis that, the plaintiff having been unsuccessful, "as a matter of discretion, cost ought follow the event". Significantly, his Honour found ([5]) only that, despite the fatal absence of medical evidence, the plaintiff's case "objectively was not a strong one".
We accordingly are not satisfied that the Tribunal misdirected itself in law in the manner asserted by this ground.

Ground 5

Ground 5 asserts that the Tribunal at first instance erred in failing to take account of relevant considerations. The submissions in support of this ground overlap with, and in some instances repeat contentions advanced in support of other grounds. As is readily apparent, for this challenge to succeed, the Appellant must identify facts or circumstances which were material to the decision of the Tribunal at first instance, and demonstrate that the Tribunal failed to have regard to those matters.
The Appellant set out in considerable detail the matters agitated by her in support of her claim for costs at first instance (paragraph 47) and submitted (paragraph 48) that the decision of the Tribunal at first instance: "fails to grapple with, or even refer to, any of the particular arguments advanced by the Appellant as to why specific claims made by the Respondent were weak and/or lacking in a tenable basis in fact or law demonstrates that the Tribunal did not take them properly into account."
The Appellant asserted that the "undifferentiated dismissal" (Reasons at [29] and [30]) of "all of the Appellant's arguments in relation to s 60(3)(c) further demonstrates this failure to take them into account".
The Appellant submitted (paragraph 49) that, in order to succeed with this complaint she was not required "to go so far as to demonstrate that the conclusion of the Dubler Tribunal in relation to s 60(3)(c) was not open to it". We have difficulty with that proposition. To enliven appellate intervention, the Appellant bears the onus of demonstrating that a matter relied upon by the Appellant was material to the decision at first instance, and that the Tribunal at first instance failed to have regard to it. If the Appellant discharges that onus, the Tribunal at first instance erred in law, and made a decision which was "not open to it". Unless the Appellant discharges that onus, the decision of the Tribunal at first instance was "open to it".
There is a presumption of correctness in favour of discretionary judgments, as the decision of the Tribunal at first instance undoubtedly was. The basis upon which such decisions may be disturbed is not in doubt and has been referred to earlier. As the Court of Appeal has made clear in Orr, the Tribunal was not obliged to refer to and engage with each and every submission advanced by the Appellant.
The passages from the judgment of the Court of Appeal relied upon by the Appellant at paragraph 50 (Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 147 at [107] and [125]), which conclude that the production and display of the poster was conduct of a sexual nature, do not establish that the Tribunal erred in rejecting the Appellant's contention that the Respondents' cases had no tenable basis in fact or law, or was extremely weak. Nor do they demonstrate that the Tribunal at first instance erred in finding that the "nature of the contentions put forward by the Respondents and relied upon by the Applicant in particular, have not been shown to be out of the ordinary for proceedings of this type". That the Tribunal at first instance did not refer to each and every matter relied upon by the Appellant in support of this ground does not mean that those matters were material to its decision, or that it did not take those matters into account, as the passages from the authorities cited earlier in these reasons confirm.
Although not so expressed, the thrust of most of the submissions on behalf of the Appellant (paragraphs 51 to 55), if accepted, involves accepting that success or failure in the proceedings was determinative of the existence of special circumstances. That proposition does not sit well with the terms of s 60, which creates a clear presumption against orders for costs. So much is clear by the words "only if it is satisfied" in s 60(2). It is also significant that no provision of s 60(3) of the Act refers to the extent to which a party has been successful or unsuccessful. The statutory regime clearly provides that, without more, the mere success or failure of a particular claim is not a matter to which the Tribunal may permissibly have regard when exercising jurisdiction pursuant to s 60 of the Act.
We do not accept the contention of the Appellant (paragraphs 57 and 58) that, statements by a member of the Tribunal at first instance at a Directions Hearing, encouraging a litigant in person to secure legal representation, created any admission or other basis for the Tribunal being obliged to make a finding of 'reasonable complexity' after it had heard and determined the substantive proceedings. We do not accept the contention of the Appellant (paragraph 59) that comments made at a directions hearing prior to the substantive hearing of proceedings were binding on the Tribunal member, much less the other member of the Tribunal in the context of a costs hearing. Unsurprisingly, no authority was advanced in support of that submission.
For these, and the reasons we have recorded in rejecting earlier grounds, we do not accept the submission made by the Appellant. Nor do we accept that, even if the Tribunal should have found that the damages proceedings raised reasonably complex issues of fact and law, that of itself should have led to a finding of special circumstances and an award of costs. Nor do we accept that the Tribunal had any "residual discretion to award costs" if the Appellant intended to suggest that, independently of s 60(3)(d), there was some basis upon which costs could be awarded without a finding of special circumstances.
Properly understood, this ground does not ultimately identify a material fact or circumstance to which the Tribunal at first instance assertedly failed to have regard, but essentially complains that a fact or circumstance which was taken into account should not have been found, for reasons which have not been identified, or should have been afforded more weight than it was. Whatever its basis, we find no merit in this ground.

Ground 6

Ground 6 asserted that the Tribunal erred in misconstruing the duty created by s 36(3) of the CAT Act. Section 36(1) of the CAT Act provides that 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."
Section 36(2) of the CAT Act provides that the Tribunal must seek to give effect to the guiding principle when it: 1. exercises any power given to it by this Act or the procedural rules, or 2. interprets any provision of this Act or the procedural rules.
Section 36(3) of the CAT Act provides that: "Each of the following persons is under a duty to cooperate 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."
The Appellant submitted (paragraph 62) that in: "failing to disclose an email referred to by one of the First Respondent's witnesses mid-cross-examination at the damages hearing, the Respondents had failed to comply with the duty to cooperate with the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
The Tribunal at first instance identified the issue raised by the Appellant (Reasons at [36]) and recorded that the Appellant: "referred to what it described as the failure of the Respondents to disclose the email upon which Mr Cash relied until it was revealed midway through the cross-examination of Mr Cash at the damages hearing."
The Tribunal further recorded (Reasons at [37]) that the Respondents: "placed before the Tribunal the Summonses to Produce issued by the Applicant. Relevantly, the Summonses did not seek within its scope, including as narrowed with the agreement of the Applicant, the email exchange in question. In our view, in the absence of such email exchange being specifically called for or made the subject of a Summons to Produce, we cannot be satisfied there has been any breach of the overriding duty."
The Appellant set out in detail (paragraphs 66 to 69) the circumstances surrounding the non-production, and subsequent production of the relevant email. The Appellant made a series of submissions (paragraph 70) with respect to the circumstances surrounding the Appellant's agreement to "narrow the scope of her request" for production of documents.
In the circumstances, we are not persuaded that the Tribunal was obliged to go beyond or behind what occurred in relation to the production of the email. More importantly perhaps, nowhere in the Appellant's extensive submissions is it suggested how the asserted conduct of the Respondents, or either of them, should have led the Tribunal to find "special circumstances", either on that basis, or in conjunction with other findings of primary fact. We were not referred to the significance which the email was asserted to have assumed in the determination of the proceedings. That cannot have been inadvertent.
We have not been referred to anything which establishes that the Tribunal at first instance was "wrong" in making any of the findings of primary fact with respect to overriding duties pursuant to s 36(3) of the CAT Act which informed its determination with respect to "special circumstances".

Ground 7

This ground asserts that the Tribunal erred in failing to find special circumstances in Sydney Water's failure to settle proceedings sooner, and Vitality Works' failure to make an offer to settle before it was ordered to make such an offer at the conclusion of the damages hearing.
The Appellant's submissions (paragraphs 81 and 82) advance a number of matters which the Appellant acknowledges that the Tribunal at first instance took into consideration, albeit not in the way for which she contended. This ground does not expressly or impliedly assert that the Tribunal made, and relied upon findings of primary fact which were "wrong". To the extent that the Tribunal at first instance is asserted to have failed to refer to either of the matters identified in the latter paragraph, for the reasons which follow, we do not accept that Tribunal failed to have regard to any matter which was material to its evaluation of the Appellant's case.
Sydney Water relied (paragraph 48) in support of its resistance to this ground on the statement in Edward Lees Imports Pty Ltd v Commissioner of Fair Trading; Commissioner of Fair Trading v Edward Lees Imports Pty Ltd [2019] NSWCATAP 134, at [417] that in "reviewing the exercise of discretion by the Tribunal in awarding costs…it is inappropriate for this [Appeal Panel] to undertake a minute examination of what has occurred throughout the history of these proceedings". In view of the statements in Orr cited earlier in these reasons, such reliance was appropriate.
Vitality Works submitted (paragraph 52) that this ground sought to "engage with the merits of the decision without proving the Tribunal erred in the exercise of discretion" in any of the ways identified by the authorities. There is merit in that submission.
Unlike some statutory provisions with respect to costs, such as s 117(2A)(f) of the Family Law Act 1975 (Cth), s 60(3) of the CAT Act does not identify the making of offers of settlement as a matter to which the Tribunal "may have regard". Undoubtedly, as the Tribunal at first instance accepted, the making of offers of settlement could be, and were taken into account pursuant to s 60(3)(g) of the CAT Act.
The Tribunal considered the Respondents" offers of settlement, and the Appellant's submissions with respect to them in detail (Reasons at [52] to [57], [59] to [95]. We are not persuaded that the Tribunal was obliged to take into account when, or in what circumstances an offer of settlement was made by any party. We are not persuaded that the absence of reference to those matters with respect to Vitality Works' offer was erroneous in law. As the Tribunal found at various points in those passages of its reasons, the focus of interest was the substance of offers of settlement. We have not been referred to anything which establishes that any of the findings of primary fact of the Tribunal with the respect to the offers of settlement of each Respondent was "wrong".
The Appellant has not established that the Tribunal at first instance erred in its consideration of, and findings with respect to the offers of settlement of either Respondent.

Ground 8

Ground 8 of the Appellant's Notice of Appeal asserted that the Tribunal erred in misapplying the model litigant policy ("the policy"). The Appellant made a number of submissions in relation to that issue (paragraphs 83 to 92). Focal to the submissions in that regard was the apology received from Sydney Water (paragraph 85). The Appellant submitted that the purported apology was "insincere" (paragraph 86). Some of the submissions of the Appellant in support of this ground do not engage with the ground itself (paragraphs 88 and 89).
To the extent that the asserted failure of Sydney Water to make an appropriate apology was submitted to have constituted a "failure to comply with the model litigant policy" (paragraph 89), we do not accept that the Tribunal at first instance erred by declining to make the finding of primary fact urged by the Appellant. That being so, the Tribunal's findings with respect to the policy and special circumstances were not erroneous. Our reasons for those conclusions follow.
The Tribunal at first instance identified, in the context of "other matters" within s 60(3)(g) of the CAT Act, the Appellant's claim with respect to the policy (Reasons at [42]). The Tribunal identified the paragraphs of clause 3.2 of the policy upon which the Appellant relied. The policy is found at tab 13 of the joint appeal bundle, at pages [276] to [278]. The Tribunal at first instance recorded (Reasons at [43]) that the Appellant relied upon paragraphs 3.2 (a), (b), (c), (d), (e), (j) and (k) of the policy.
In her submissions in the appeal, the Appellant specifically engaged only with paragraph 3.2(k) of the policy. It is thus reasonably apparent that the Appellant does not assert error by the Tribunal at first instance with respect to anything but its consideration of paragraph 3.2(k) of the policy. Paragraph 3.2(k) of the policy provides that, pursuant to Sydney Water's obligation to "act honestly and fairly in the handling of claims and litigation" by "apologising where the State or an agency is aware that it has acted wrongfully or improperly".
The Appellant's complaints require acceptance of her contention that Sydney Water's apology was "insincere" (paragraph 86). As we have earlier recorded, we do not accept that the Tribunal at first instance was "wrong" in declining to make a finding in those terms.
Although numerous complaints are made about the determination of the Tribunal at first instance of this issue, it does not seem to be suggested that the Tribunal failed to identify the bases upon which the Appellant asserted that Sydney Water had failed to comply with the policy. Although not so expressed, the Appellant's contention is that the Tribunal at first instance should have decided the issue differently, and in her favour.
The Tribunal referred (Reasons at [43]) to the Appellant's assertion that: "Sydney Water failed to deal with the Applicant's claim promptly including by avoiding litigation by offering to settle for the jurisdictional limit and failing to keep costs to a minimum by not requiring the Applicant to prove matters "which it must have known to be true"."
The Tribunal then referred to Sydney Water undertaking its appeal against the decision in the substantive proceedings to the Appeal Panel (Reasons at [44]). In view of the Tribunal's findings with respect to that issue, and our rejection of the Appellant's challenges to them, any reliance upon the Tribunal's assertedly erroneous findings with respect to those matters cannot advance this ground.
The Tribunal engaged with the Appellant's reliance upon the asserted failure of Sydney Water to provide a "genuine" apology (Reasons at [44]). For the reasons there recorded, the Tribunal was not satisfied that Sydney Water did not comply with its obligations as a model litigant. The Tribunal found that Sydney Water was entitled to defend the proceedings, both on the question of liability and damages and advanced in the proceedings "reasonably arguable contentions" which, if successful would have resulted in damages being awarded at a level less than the jurisdictional limit. In those circumstances the Tribunal was not satisfied that Sydney Water was in breach of the policy by failing to "promptly offer to settle for the jurisdictional limit".
The Tribunal at first instance was not satisfied that Sydney Water required the Applicant prove matters "which it must have known to be true" (Reasons at [46]). The Tribunal also rejected the Appellant's claim that Sydney Water failed to avoid litigation through settlement of the proceedings (Reasons at [49]). Nothing to which we have been referred establishes that any of the findings of primary fact made by the Tribunal with respect to these issues was "wrong".
The Tribunal was not satisfied that Sydney Water's purported apology of 12 April 2016 was "issued in bad faith" (Reasons at [50]). The Appellant does not appear to challenge that finding. The crux of the Appellant's complaint (paragraph 90) is that the Tribunal at first instance "misconstrued" the policy, or took account of an irrelevant matter, "namely that the Appellant did not seek orders for an apology pursuant to s 108 of the Anti-Discrimination Act". The complaint was encapsulated in the submission of the Appellant (paragraph 92) that, it being "reasonable for the Appellant to expect an apology from the First Respondent (Sydney Water) at least up until the damages hearing must demonstrate that the First Respondent's failure to provide one was not in compliance" with the policy.
It is not in doubt that the Appellant received an apology from Sydney Water. The undisturbed findings of fact with respect to the genuineness, or sincerity of the apology are fatal to the Appellant's submission (at paragraph 92). We have not been referred to anything which, in law or logic, precluded the Tribunal, from having regard to the matter complained of by the Appellant (at paragraph 90). It will be remembered that the Tribunal there considered a matter raised by the Appellant in support of her case for special circumstances. Even if, contrary to our conclusion, the Tribunal at first instance took an assertedly irrelevant matter into consideration, we are not persuaded that it was material to its decision, or vitiated the exercise of its discretion. The passages from Orr cited earlier in these reasons, and particularly the references in Orr to a "fine-tooth comb attuned to identifying error" ([77[v]) provide support for our conclusion.
The Tribunal recorded, again it is not suggested inaccurately, that the Appellant "asked that the question of damages flowing from this apology be dealt with in other proceedings". The Tribunal at first instance could not in our view have permissibly taken into consideration for the purpose of its s 60 determination what might occur in other proceedings. Pivotal to this challenge is the finding of the Tribunal (Reasons at [51]) that it was not satisfied that the "alleged inadequacy of the apology would warrant an order for costs or constitute a relevant 'special circumstance'."
Nothing to which we have been referred establishes that the Tribunal could not permissibly decide as it did with respect to this issue in the exercise of its discretion. No part of the exercise of discretion by the Tribunal at first instance involved any finding that Sydney Water's apology was adequate, or otherwise assisted its case. The Tribunal considered, and rejected that Appellant's claims with respect to the apology. Nothing to which we have been referred establishes that the Tribunal at first instance erred in making the findings it did with respect to the model litigant policy, or in reaching its decision in reliance upon those findings.

Ground 9

Ground 9 asserted that the Tribunal erred in its approach to determining the existence of special circumstances. Understandably, this ground reiterates one or more of the earlier grounds advanced by the Appellant, and asserts that the cumulative effect of the matters relied upon by her, or her "case, taken as a whole" (paragraphs 95 and 96) was to establish "special circumstances".
As is readily apparent, this ground relies for its success on one or more of the preceding grounds finding favour with the Appeal Panel. For the reasons we have earlier recorded, none of those challenges has been made out. In those circumstances, this ground fails.
The Appellant not having opposed the absence of an oral hearing with respect to costs, and properly not appealing against the decision to dispense with an oral hearing, we cannot accept the submission of the Appellant at 98 with respect to "the importance of oral hearings".

Conclusion

No ground of appeal having been established, the appeals will be dismissed.
We will reserve the question of costs, and provide for written submissions with respect to costs. Without pre-empting our possible decision with respect to costs, it should be apparent to the parties that any party seeking costs would face the obstacles to success which have confronted the Appellant in these appeals.

Order 1. The appeals are dismissed. 2. Any application in respect of the costs of either appeal is to be made by written submissions filed and served within 14 days of the date of publication of this decision. Such submissions should address the question whether the application can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 3. If a party files submissions in accordance with order 2 above in respect of an appeal the other party to that appeal may file and serve submissions in response within a further 14 days. Such submissions should address the question whether the application can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 4. Unless a party files submissions in accordance with order 2 above, there will be no order in respect of the costs of the appeals.

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 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: 21 February 2022

Civil and Administrative Tribunal Act 1998(Vic)

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