ZDB v The University of Newcastle

ZDB's request for an extension of time

1. In accordance with order 3 made on 30 March 2017, the University sought its costs of the appeal in written submissions lodged on 13 April 2017. The appellant was required to provide his submissions on costs by 27 April 2017.
2. On 2 May 2017, the Registry received a document by facsimile from ZDB. It was headed "APPLICATION - URGENT". As we understood it, the document involved a request for an extension of time to respond to the University's costs application. The appellant in effect contended that, if his health condition and medical treatment were taken into account, there was "no reasonable opportunity of being heard in the issue of cost". He relied upon a report of 20 March 2017 from a psychiatrist, Dr Raggatt, which, among other things, stated that "[h]is depression and its symptoms … will undoubtedly have impaired his capacity to manage the current legal proceedings". Dr Raggatt also indicated that the appellant was then "taking medication for the treatment of that depression". There was also other material recording his past and scheduled visits to his general practitioner or Dr Raggatt. The last paragraph of the appellant's document stated: "… the Appeal Panel should take into account my health condition in this issue or provide the appellant an opportunity to make submission's in some extended time."
3. On 4 May 2017, the Registry received additional correspondence from ZDB, dated 3 May 2017. This was largely the same as the document submitted on 2 May 2017 but included a further ground in the following terms: "4. There is a failure to comply with a statutory requirement in undertaking the issue."
4. Nonetheless, ZDB's request that the Appeal Panel "provide the appellant an opportunity to make submission's in some extended time" remained the same.
5. The appellant did not nominate the amount of time that he required to adequately respond to the University's costs application, in either his initial application or subsequent correspondence.
6. It was not clear whether the University had been informed of the appellant's requests for an extension of time. Accordingly, on 5 May 2017, the Registry provided copies of the appellant's documents to the University and asked the University to provide to the Tribunal any submissions on that issue that it wished to make by 12 May 2017.
7. On 12 May 2017, the University lodged submissions objecting to the extension of time, submitting that "the effect of this delay [would] unnecessarily prolong the determination of cost" and noting that the appellant's documents failed to disclose any grounds for an extension of time.
8. After taking into account both parties' submissions, the Appeal Panel, on 15 May 2017, granted the appellant an extension of time, issuing the following directions: "1. The time for compliance with order 3b made on 30 March 2017 is extended to 29 May 2017. 2. The time for compliance with order 3c made on 30 March 2017 is extended to 5 June 2017."
9. This extension of time effectively gave the appellant a month and a half to respond to the University's submissions on costs. In the circumstances, the Appeal Panel considered that this was appropriate to ensure that the appellant had a reasonable opportunity to have his submissions considered, bearing in mind the obligation in s 38(5)(c) of the NCAT Act and the lack of any outweighing prejudice to the University.
10. The appellant did not lodge any submissions in relation to costs on or before 29 May 2017. Nor has the Appeal Panel received any submissions from the appellant since that time.

Dispensing with an oral hearing

1. By its order 3 made on 30 March 2017, the Tribunal afforded the parties the opportunity to make submissions on the question of whether an oral hearing on the costs issue should be dispensed with. Neither party made submissions opposing the Appeal Panel dealing with the costs application based on written submissions and without an oral hearing. In the circumstances of this matter and given, in particular, what had occurred at the oral hearing of the substantive appeal and thereafter (see ZDB v The University of Newcastle [2017] NSWCATAP 70 [17] - [29]), we are of the view that it is appropriate to decide the costs application without an oral hearing. Accordingly, we shall make an order under s 50(1)(c) to dispense with a hearing.

University's submissions on costs

1. The University relied upon s 60(2) of the NCAT Act, contending that there were "special circumstances warranting an award of costs" on two grounds. First, under s 60(3)(c) and (e), ZDB's appeal had no tenable basis and was frivolous or vexatious or lacking in substance. Secondly, under s 60(3)(b), the appellant was responsible for unreasonably prolonging the time taken to complete the proceedings.
2. As to the first ground, the University submitted that s 60(3)(c) and (e) are "somewhat overlapping". The University argued that: "The various documents which the appellant filed, including the notice of appeal and the amended notice of appeal, were lengthy and discursive, and it was difficult to discern any cogent appeal grounds. To the extent that those appeal grounds could be understood, they did not articulate or demonstrate any actual error of law or fact."
3. Furthermore, the University submitted that "the appeal was used as an opportunity to re-argue his case" and that "none of the contentions made the appellant had any merit".
4. As to the second ground, the University submitted, in effect, that ZDB's failure to comply with the Tribunal's order to file adequate or satisfactory grounds of appeal, despite being granted ample opportunity to do so, prolonged the determination of the appeal. The University also argued that the appellant's lack of preparation for the oral hearing on 1 December 2016 and his application for an extension of time to file voluminous written submissions, after the hearing, occasioned greater costs.
5. Furthermore, the University argued that the material submitted by the appellant in support of his adjournment applications indicated that he wished to delay the hearing of the appeal "in order for that to be a fact taken into consideration in his application to remain in Australia under a cancelled student visa on the basis that he was awaiting resolution of the proceedings". The University contended that it could be inferred that the prolonging of proceedings suited the appellant's interest.

The ordinary rule under s 60 of the NCAT Act and special circumstances

1. In its costs application, the University relied only on s 60 of the NCAT Act. Section 60(1) provides that "each party to proceedings in the Tribunal is to pay the party's own costs". The Tribunal is nevertheless empowered under s 60(2) to award costs "in relation to proceedings before it" but only if satisfied "special circumstances" warrant such an order.
2. For the purposes of s 60(2), "special circumstances" are those which are out of the ordinary but they do not have to be extraordinary or exceptional: see Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [76] and the cases there cited. In addition, s 60(3) sets out a non-exhaustive list of factors to which the Tribunal may have regard in determining whether there are "special circumstances" warranting an award of costs. That list includes: "(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."
3. As has been noted above, the University relied, in particular, upon the factors identified in pars (b), (c) and (e). We shall consider each of these factors.

Was the appellant responsible for prolonging unreasonably the time taken to complete the proceedings?

1. In the circumstances, "the proceedings" referred to in s 60(3)(b) include, at least, the present appeal.
2. The decision at first instance was made on 11 August 2016. The appellant lodged his notice of appeal against that decision on 8 September 2016. The appellant's grounds of appeal were set out in a 21 page document attached to the notice of appeal. The 21 page document did not appear to be confined to identifying only the grounds of appeal. As best we could determine, the actual grounds of appeal were contained in pars 33 to 102 of the 21 page document. These 70 paragraphs did not, however, clearly set out in short summary form distinct grounds of appeal. They included various challenges to the Tribunal's findings, reasons and conclusions sometimes at a high level of generality and at other times in detailed argument and submissions. Each of the paragraphs was not confined to one ground of appeal. In dealing with the appellant's appeal, the Appeal Panel did its best to discern from pars 33 to 102 the distinct grounds of appeal raised. We identified 26 grounds, which were dealt with seriatim at [83] to [334] of the substantive decision.
3. In addition, in the 21 page document at pars 105 to 123 under the heading "Leave to appeal:", the appellant set out what appeared to be a summary of the grounds of appeal and additional material which could also be potential grounds of appeal. These were dealt with at [335] to [343] of the substantive decisions. Paragraphs 105 to 123 were as follows: "105. The finding was not on the evidence for its decision at paragraph 70, 80, 81, 83, 91, 92, 98, 99, 106. The finding of fact was, "inconsistent with the facts incontrovertibly established by the evidence" or "glaringly improbable" 107. Its decision at paragraph 60, 80, 81, 82, 83, 84, 85, 88, 89, 91, 92, 93, 95, 96, 98, 99 108. By amending the pleading of my supervisors at the hearing after the submission of all evidence by the parties the tribunal made injustice to the applicant. 109. By not granting adjournment to the appellant 110. By not conducting the hearing according to its jurisdiction 111. By not applying the legal test of causation 112. By not applying the legal test of less favorable treatment 113. By not applying the legal test of circumstance identification 114. By misconstruing or not taking relevant consideration in the interpretation of reasonableness in indirect discrimination 115. By not considering all the applicants evidence 116. No comparator test undertaken 117. Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party 118. The fact finding is perverse 119. Identified the wrong issue 120. Asked the wrong question 121. The member misconceived the interpretation of discriminatory conduct and less favourable treatment 122. The Tribunal took assumptions 123. Comparator ground. The Tribunal failed to take a comparator, either actual or hypothetical. "
4. The unsatisfactory form of the grounds of appeal was raised at a hearing on 27 September 2016 when the Appeal Panel made directions to prepare the appeal for hearing and set it down for hearing on 1 December 2016. The Appeal Panel, on that occasion, gave the appellant leave to file an amended notice of appeal and expressly required the amended notice of appeal to set out clearly: "(a) The grounds of appeal; (b) The errors claimed to exist in the decision under appeal; (c) The specific questions for determination on appeal".
5. The amended notice of appeal was due to be filed and served by 18 October 2016, as were the appellant's written submissions. At the request of the appellant, on 14 October 2016 the Appeal Panel extended the time for the appellant to file his amended notice of appeal (and submissions) to 26 October 2016. From this, it appears to us that the appellant was aware of the need for him to file an amended notice of appeal complying with the requirements referred to in the preceding paragraph.
6. The appellant did not provide an amended notice of appeal (or any submissions) by 26 October 2016. Nor did the appellant ever provide an amended notice of appeal.
7. An application for an adjournment by the appellant, heard by a differently constituted Appeal Panel on 24 November 2016, was refused and oral reasons for that decision were given at that time. A further application for an adjournment by the appellant made at the hearing on 1 December 2016 was also refused and oral reasons for decision were also given.
8. At the oral hearing, however, when called upon to make submissions, the appellant said that he did not feel able to do so because of his disability. As we understood it, he was referring to his depressive illness, which was also the disability on which he based his complaints of discrimination on the ground of disability.
9. Noting that the appellant had already made extensive submissions in the 21 page document attached to the appellant's notice of appeal, the Appeal Panel proceeded to hear the University's oral submissions on 1 December 2016. In order to allow the appellant the opportunity to respond to the University's oral submissions, we then made a timetable for the appellant to put any further submissions he wished to make in writing. The University was given the opportunity to reply in writing.
10. We explained what then occurred in the reasons for the substantive decision at [19] to [29] as follows: "19 Our orders made at the end of the oral hearing on 1 December 2016 were as follows: "ORDER 1. The Appeal Panel orders under s 64 of the Civil and Administrative Tribunal Act that the name of the appellant not be disclosed in any published documents relating to this appeal. 2. Subject to the directions below, the Appeal Panel reserves its decision. DIRECTIONS 3 The appellant is to give to the Tribunal and the respondent the appellant's written submissions on the appeal on or before 5 January 2017. 4 The respondent is to give to the Tribunal and the appellant the respondent's further written submissions on the appeal on or before 19 January 2017. 5 The appellant is to give to the Tribunal and the respondent any submission in reply on or before 27 January 2017. 6 The submissions referred to in directions 1, 2 and 3 are not to exceed 15 pages in length." 20 On 16 January 2017, the Tribunal received an application from the appellant headed "VERY URGENT decision needed before 19 January 2017 - APPLICATION". From that application, it appeared to us that the appellant was saying that he could not comply with the requirement to provide written submissions by 5 January 2017 and he sought an amended timetable as follows: "1. Appellant submission due on: 17 January 2017 2. Respondent submission due on: 31 January 2017 3. Appellant to respond to the respondent's submission on: 2 October 2017." 21 The application did not specifically explain why a "VERY URGENT decision [was] needed before 19 January 2017", why the particular dates had been chosen or why any submissions in reply by the appellant should be delayed by 9 months to 2 October 2017, as he proposed. It did include the statement: "The illness [from which the appellant said he suffered] has a symptom of head ache, dizziness, concentration, deficit to cognition, pronounced low mood, deficit to organizational ability, Sleep difficulty (erratic sleep), affects petite." 22 The University opposed the application. 23 In the absence of clear information, we proceeded on the basis that the appellant may have still been unable to provide his written submissions within a few days of 16 January 2017 because of his disability. Bearing in mind s 38(5)(c) of the NCAT Act, we decided to extend the times specified in our directions made on 1 December 2016 in order to ensure that the appellant had every reasonable opportunity to prepare his submissions and have them considered in these proceedings. On 19 January 2017, we made orders as follows: "1. The time by which the appellant … is to comply with direction 3 is extended to 28 January 2017. 2. The time by which the respondent … is to comply with direction 4 is extended to 11 February 2017. 3. The time by which the appellant … is to comply with direction 5 is extended to 25 February 2017." 24 At the time we made these orders, unfortunately, we were not aware that the appellant: (1) had filed with the Tribunal on 17 January 2017, a 15 page document dated "January 4, 2016 [we assume this should be 2017]" headed "Appellant's Brief" (plus a large number of Annexures); and (2) had filed, or was about to file, on 19 January 2017, a 1 page document dated "January 5, 2016 [once again we assume this should be 2017] headed "Appellant's Brief" (plus further Annexures). 25 When making the extension orders on 19 January 2017, we were also unaware that the University had filed or was about to file on that day its Further Submissions on Appeal, in response to one or both of the two documents referred to in the preceding paragraph. 26 If we had been aware of those documents filed on 17 and 19 January 2017, we would not have made the extension orders that we did. Notwithstanding this, there did not appear to us to be any benefit in revoking those orders when we became aware of the documents. Neither party made an application seeking such a revocation. 27 Even though the appellant filed quite extensive documentation on 17 and 19 January and was given an extension of time to file further documents to 28 January 2017, the appellant filed a further 3 documents on 7 February 2017, together with 3 covering letters dated 25 January 2017, as follows: (1) a 24 page document dated "January 5, 2017" headed "Appellant's Brief" together with annexures. One of the covering letters said: "The cover letter serves for submission of 'APPELLANT'S BRIEFS', 'OUTLINE OF THE CASE' and 'ISSUES FOR DETERMINATION' all of these filed on the same day of on 6 February 2017." Another of the covering letters explained that this version of the "Appellant's Brief" was intended to be a substitute for the document with the same heading filed on 17 January 2017 which was said to contain "typographical and non-typographical errors"; (2) a 4 page document dated 25 January 2017 headed "Issues for determination"; (3) a 10 page document dated 25 January 2017 headed "Outline of the case". Another of the covering letters explained that this document was intended to be a substitute for the document with the same heading filed on 1 December 2016. The later document was said to correct "typographical and non-typographical errors" in the earlier document. It can be noted that the appellant tendered the 1 December 2016 version on the adjournment application made on that day. It became Ex B on that application. 28 Given the nature of the documents, the obvious difficulties the appellant has in articulating his case and the fact that it is in the interests of all parties and the Tribunal to have this matter brought to finality, we propose to allow the appellant to rely on this documentation, which was not provided in conformity with the Tribunal's directions. 29 By taking this approach, we should not be thought to be accepting that the appellant's failure to comply with directions, his lack of clarity as to his precise grounds of appeal and the various applications for adjournments or extensions of time have not caused delay, difficulty and additional expense for the University."
11. As has been noted above, the substantive decision was published on 30 March 2017. The University complied with the Appeal Panel's directions concerning its costs application. Once again, the appellant failed to comply with directions but sought an extension of time after the expiration of the original time limit. Even though an extension of time was granted, the appellant did not provide submissions within the extended time and has not provided submissions on costs since. This caused the finalisation of the costs application to be delayed, while the Appeal Panel waited for submissions from the appellant.
12. By reason of the appellant's failure to file an amended notice of appeal that set out clearly the grounds relied upon, the errors in the decision under appeal and the specific questions for determination on the appeal, both the University and the Appeal Panel were required to spend time and effort unnecessarily attempting to discern what the appellant's grounds of appeal might be and then addressing all the grounds so discerned, whether or not they raised arguments of substance or not. In the case of the written submissions on the appeal, even though an extension of time was granted because the Appeal Panel was unaware of documents already prepared and submitted by the appellant, some of the further submissions were provided after the expiration of the extended time. While we were prepared to consider these submissions, their late provision prolonged the time taken to complete the matter. Further, in some cases, extensions of time to file relevant documents were obtained but not availed of. This also has had the tendency to delay the finalisation of the appeal or the costs application. In none of these cases do we find that there was a reasonable explanation for why the material was not provided or was provided late.
13. Having regard to the appellant's action and inaction in these appeal proceedings, we find that the appellant has been responsible for prolonging unreasonably the time taken to complete both the substantive appeal and the costs application. This action and inaction of the appellant and the relevant circumstances of this case can legitimately be described as out of the ordinary. Consequently, we are satisfied that there are special circumstances that warrant an award of costs in relation to this appeal on a basis falling within s 60(3)(b).

Did the appellant make claims that had no tenable basis in fact or law or were the proceedings otherwise lacking in substance?

1. The appellant's "claims" on this appeal can be taken as a reference to the grounds of appeal relied on by the appellant. We have set out in [83] to [334] of the substantive decision our understanding of each ground of appeal and the reasons why we rejected each ground. While it may be the case that not all of the 26 grounds we discerned could be said to have no tenable basis in fact or law or be lacking in substance, we are of the view that a significant number of the grounds could be so described. Examples of such grounds include, but are not limited to, the third ground ([116] to [118] of the substantive decision), the fourth ground ([119] to [125] of the substantive decision), the sixth ground, sixth dot point ([156] to [159] of the substantive decision), the seventh ground, fourth, fifth and seventh dot points ([186] to [189] of the substantive decision), the sixteenth ground ([283] to [284] of the substantive decision), the twenty-fifth ground ([324] to [328] of the substantive decision) and the twenty-sixth ground ([329] to [334] of the substantive decision).
2. Given the nature and number of the grounds of appeal and the extent to which they had no tenable basis in fact or law or lacked substance, in our view it is correct to conclude that the situation was out of the ordinary and amounted to special circumstances falling within s 60(3)(c) and (e) of the NCAT Act warranting an award of costs.

Should costs be awarded and if so in what amount?

1. From these conclusions, it follows that in respect of this appeal the Appeal Panel has the power to award costs, under s 60(2) of the NCAT Act.
2. There is no express fetter on the power to award costs that arises under s 60(2) if the Tribunal is satisfied that there are special circumstances. This supports the approach that costs should generally follow the event in such cases. We also note, however, that this appeal concerns a complaint of disability discrimination under the Anti-Discrimination Act 1977 (NSW) and that the nature of the special circumstances themselves may be relevant to determining the extent of any costs order.
3. In the present matter, if the appellant had not by his action or inaction delayed the finalisation of the proceedings and if he had limited his appeal to those grounds which had a tenable basis in fact or law or had some substance, he might have avoided being exposed to a costs order in respect of the appeal. The effect on the respondent of the appellant's action and inaction and pursuing grounds of appeal that lacked a tenable basis or substance was that it was required to expend additional time and money.
4. In all the circumstances, we are of the view that a costs order should be made against the appellant but it should be limited to half of the costs of and incidental to the appeal and the application for costs. We think this limitation is appropriate because it reflects, in an adequate albeit not precise way, the additional time taken to complete the proceedings and the extent to which the grounds were untenable or lacking in substance and the consequences for the respondent, which was the successful party. We take this approach not to punish the appellant for any misconduct but rather to compensate the respondent, bearing in mind the principles referred to in Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [37].

Conclusions and Orders

1. Accordingly, the Appeal Panel orders: 1. Under s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing in respect of the application for costs of the appeal is dispensed with. 2. The appellant is to pay one half of the respondent's costs of and incidental to this appeal and the application for costs of the appeal as agreed or assessed under the applicable costs legislation.

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: 20 June 2017