Z v University of A & Ors (No 9) [2005] NSWADT 25 (17 February 2005)

Last Updated: 17 February 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Z v University of A & Ors (No 9) [2005] NSWADT 25


PARTIES: APPLICANT
Z
FIRST RESPONDENT
University of A
SECOND RESPONDENT
Dr D
THIRD RESPONDENT
Ms B



FILE NUMBERS: 001001

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 07/09/2004



DECISION DATE: 17/02/2005

BEFORE: Goode P - Judicial MemberClayton S - Non Judicial MemberMcDonald O - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Victorian Civil and Administrative Tribunal Act 1998 (Vic)

CASES CITED: Harding v Vice Chancellor, University of NSW [2003] NSWADT 75
JA v State of New South Wales [2003] NSWADT 272
Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45
Tu v University of Sydney (No. 2) [2002] NSWADTAP 25
Wilde v University of Sydney (No. 2) [2004] NSWADT 16
Z v University of A (No 3) [2001] NSWADT 182
Z v University of A (No. 8) [2004 NSWADT 100
Z v University of A, Dr D and B (No. 6) [2003] NSWADT 260
Z v University of A, Dr D and B (No. 7) [2004] NSWADT 81

APPLICATION: Costs

MATTER FOR DECISION: Costs


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
J Oakley, barrister

ORDERS: The Respondent's application for costs is dismissed


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 This is an application brought by the Respondents for an award of costs. It follows an order made by the Tribunal on 29 April 2004 dismissing the Applicant’s complaint that the Respondents had breached the Anti-Discrimination Act 1977: see Z v University of A & Ors (No. 7) [2004] NSWADT 81.

2 At paragraph 8 of the above decision we noted that the Applicant had sought a ruling that the Second Respondent, Dr D, had committed perjury on 3 separate occasions when giving his evidence and that his conduct constituted contempt. We found that there was no substance in the Applicant’s claims: our reasons are set out in Z v University of A (No. 8) [2004] NSWADT 100.

3 The Respondents seek an order for costs under s 114(2) of the Anti- Discrimination Act 1977 (the ADA).

Respondents’ Submissions

4 The Respondents submit that there are special circumstances justifying an award of costs. They rely on the reasons set out below:

(1) The Tribunal dismissed the complaint. The allegations were contrived.

(2) The Tribunal made adverse findings concerning the Applicant’s credit.

(3) The Applicant repeatedly made serious but unfounded allegations against the University and various staff members. They included baseless allegations of forgery, academic misconduct, plagiarism, contempt of the Tribunal and perjury.

(4) The Applicant’s conduct of the hearing greatly extended the hearing time causing the Respondents to incur substantial costs unnecessarily. In particular the Applicant:

i) Failed to comply with the Tribunal’s directions and conducted himself in a manner which delayed the conclusion of the inquiry.

ii) Made unsubstantiated allegations despite being directed by the Tribunal to refrain from doing so.

iii) Unnecessarily issued large numbers of summonses.

iv) Put forward lengthy submissions without any leave being granted.

v) Made misleading submissions about the evidence and the applicable law.

vi) Applied to join numerous parties to the proceedings without justification.

(5) The Respondents attempted to resolve the complaint prior to the commencement of the inquiry.

(6) The Respondents offered to forgo their claim for costs in an effort to resolve the complaint.

5 The Respondents rely on the decisions of Tu v University of Sydney (No 2) [2002] NSWADTAP 25 and Harding v Vice Chancellor, University of NSW [2003] NSWADT 75.

Applicant’s Submissions

6 The Applicant submits that none of the reasons advanced by the Respondents can be characterised as special circumstances warranting a costs order. In addition he relies on the following matters:

(1) He has no legal training and although he was unrepresented, he presented his case to the best of his ability.

(2) At no stage did he request an adjournment of the hearing or fail to comply with the Tribunal’s directions.

(3) He is unable to comply with a full costs order and any award of costs would result in undue hardship for himself and his family of 6 whom he supports.

(4) The Tribunal did not find that the complaints were frivolous or vexatious. The complaints were not dismissed under s 111 of the ADA.

(5) The decisions of Tu and Harding can be distinguished on the basis that the costs orders in those cases were made under s 111(2) of the ADA rather than s 114 (2).

The Discretionary Costs Rule

7 Section 114(2) of the ADA gives the Tribunal power to award costs. Section 114 (1) creates a presumption that each party to an inquiry shall pay their own legal costs unless there are circumstances in a particular case which justify a costs order being made in favour of one of the parties.

8 Section 114 of the ADA provides:

114. Costs

(1) Except as provided by section 111(2) and subsection (2) each party to an inquiry shall pay his or her own costs.

(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

9 The Tribunal also has the power to award costs under s 111of the ADA. Unlike s 114(2), subsection 111(2) does not require a Tribunal to make a finding of ‘special circumstances’ before making a costs award.

10 Section 111 of the ADA relevantly provides:

111. Tribunal may dismiss frivolous etc complaints

(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

(1A) ...

(1B) ...

(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.

(3) Nothing in this section limits the generality of the powers conferred on the Tribunal in Chapter 6 of the Administrative Decisions Tribunal Act 1997.

11 After reviewing various authorities, the Appeal Panel in Tu noted at [42] that the sanction of a full costs order against a complainant tends to be reserved for cases where an abuse of process is seen as having been involved, ie those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith. The Panel went on to state at [43] that where a matter is found to be ‘misconceived’ or ‘lacking in substance’ there is greater caution in making an adverse costs order.

12 As was noted by the Tribunal in Wilde v University of Sydney (No 2) [2004] NSWADT 16 at [20], s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) provides useful guidance to this Tribunal when exercising its costs power. Section 109 of the VCAT Act sets out a list of circumstances which may be taken into account by that Tribunal when determining whether to depart from the presumption that each party should pay their own costs.

13 Practice Note No. 12 of the NSW Administrative Decisions Tribunal, issued on 4 March 2003, sets out some examples of special circumstances that may justify a costs order. The examples have been taken from s 109 of the VCAT Act. For present purposes, the relevant examples are:

- Whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act [The Administrative Decisions Tribunal Act 1997] the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

- Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

- The relative strengths of the claims made by each of he parties, including whether a party has made a claim that has no tenable basis in fact or law.

The Tribunal’s Reasons

14 We are not persuaded that there are any special circumstances that justify a costs order in favour of the Respondents. For various reasons this has been a difficult decision to reach. Not only have the Respondents been put to great expense and inconvenience over several years but they have been required to respond to a large number of unfounded allegations. Throughout the proceedings the Respondents acted reasonably and fairly and made considerable allowance for the fact that the Applicant was unrepresented.

15 Prior to the hearing the Tribunal dealt with several interlocutory matters including applications to join 9 individual persons and another university as respondents to the proceedings. (The Tribunal joined the second and third respondents only: see Z v University of A (No. 3) [2001] NSWADT 182) It also dealt with various requests to issue summonses.

16 The Applicant’s case was dismissed after 10 days of evidence over the period 26 August 2002 to 26 March 2003 and 2 days of oral submissions on 5 and 6 June 2003. Detailed written submissions were also filed. After the completion of oral submissions, the Applicant sought leave to re-open his case to file further evidence. The application was dismissed: see Z v University of A, Dr D and B (No. 6) [2003] NSWADT 260.

17 The Applicant is clearly intelligent, industrious and well educated. However it was evident that he did not fully grasp the complexities of many of the legal issues in the proceedings. Nor did he appear to appreciate the importance of confining his cross-examination to matters relevant to the issues in the case. This significantly extended the time taken to complete the hearing. Had the Applicant been represented by an experienced barrister or solicitor, the hearing would no doubt have been conducted very differently.

18 Given the wide-ranging allegations made by the Applicant against various members of the University, the Respondents had no choice but to call a large number of witnesses. In the circumstances the Respondents conducted the proceedings as efficiently as was reasonably possible.

19 It is a matter of considerable concern that the Applicant appeared to exhibit a cavalier approach when cross-examining particular witnesses. He failed to appreciate that serious allegations cannot be put to witnesses unless there is a real foundation for doing so. He suggested, for example, that Ms B had forged a document (he later withdrew this allegation), that parts of a student’s thesis had been written by Dr D, that Ms C should not have been awarded first class honours or the University medal, that Ms C and Professor E were guilty of academic fraud, and that students’ marks had been falsified. He also made frequent suggestions that Dr D was a ‘known plagiarist on the public record’ but was unable to substantiate the allegation.

Should a costs order be made in favour of the Respondents?

20 We appreciate that the list of examples set out in Practice Note 12 is not exhaustive. Nonetheless it is helpful to determine whether any of the matters advanced by the Respondents are included in the list of special circumstances. We discuss each of the Respondents reasons in turn below.

21 Contrived allegations: Although we found that there was no substance in any of the Applicant’s allegations, we are not satisfied that the allegations were contrived. Ms B gave evidence, which we accepted, that Dr Leon (a psychotherapist) had advised her that the Applicant required a thorough psychiatric assessment. While the Applicant denied that he needed assistance from a psychiatrist, he said that he had suffered a nervous breakdown. We are inclined to the view that the Applicant was so aggrieved by his failure to gain first class honours that he convinced himself of the accuracy of the various incidents and conversations which formed his case. We are satisfied that the Applicant mistakenly but genuinely believed that he was widely perceived to be a homosexual and that he was the victim of an ‘anti-gay’ conspiracy. The fact that we found that his allegations were entirely unsubstantiated does not detract from the genuineness of his belief.

22 Adverse findings concerning the Applicant’s credit: We found that the Applicant was not a credible witness and that he frequently gave evasive answers to questions as well as answers that were not responsive. While we have our suspicions, we are not satisfied that by doing so he was being deliberately untruthful or that he was attempting to deceive the Respondents or the Tribunal.

23 Unfounded allegations put in cross-examination and unfounded allegations of perjury: We have already expressed our concern about this in para 19 above. Nonetheless, while we have some reservations, we are not satisfied that the Applicant’s conduct was vexatious. Consistent with the observations made by the Appeal Panel in JA v State of New South Wales [2003] NSWADT 272 at [11] to [17] and the Tribunal in Wilde v University of Sydney (No, 2) [2004] NSWADT 16 at [25 to [27], there must be a clear element of volition, or intent, before a person can be found to be vexatious. We are not satisfied that we can attribute such volition, or intent, to the Applicant. Had the allegations been put through a legal representative, our view may well have been very different.

24 Applicant’s conduct greatly extended the hearing time: We certainly appreciate the difficulties and the frustration occasioned to the Respondents as a consequence of the Applicant’s conduct. However in view of the Applicant’s inexperience in conducting proceedings of this nature and his lack of legal training, we are satisfied that none of the matters discussed in paras 25 to 30 below (whether taken in isolation or together) warrant a finding that the Applicant conducted the proceedings vexatiously or that his conduct was such that he should have a costs order made against him.

25 It is submitted that the Applicant failed to comply with the Tribunal’s directions. The Applicant refutes this. We are satisfied that while the Applicant required an extension of time to comply with some of the Tribunal’s directions, he at all times provided a reasonable excuse.

26 The Respondents submit that the Applicant continued to make the unfounded allegations discussed in para 23 above despite being directed by the Tribunal to refrain from doing so. While we have some reservations, we are not prepared to characterise his conduct as a deliberate attempt to flout the Tribunal’s rulings. Rather we attribute it to his lack of legal training and his inexperience in conducting proceedings of this nature.

27 The Respondents submit that the Applicant unnecessarily issued large numbers of summonses. We accept that the Respondents were put to considerable expense in answering the many summonses issued by the Applicant. While we appreciate that this occasioned difficulty for the Respondents, we are not satisfied that the Applicant’s conduct was vexatious or lacking in good faith.

28 It is submitted that the Applicant made lengthy submissions without any leave being granted. We attribute this to the Applicant’s lack of legal training.

29 The Respondents submit that the Applicant made misleading submissions about the evidence and the applicable law. We accept that on a number of occasions the Applicant made submissions that were not supported by either the evidence or the applicable law. We appreciate that this made it difficult for the Respondents to make submissions in response. While we have some misgivings, we attribute the Applicant’s conduct to his lack of legal training and his inexperience in conducting proceedings of this nature. We are not satisfied that the Applicant’s conduct was vexatious or lacking in good faith.

30 The Respondents final submission under this heading is that the Applicant applied to join numerous parties to the proceedings without justification. As mentioned in para 15 above, the Applicant was successful in joining Dr D and Ms B as respondents to the proceedings. He did not succeed in joining 7 other individuals and another university as respondents. Given that we joined 2 of the proposed respondents, it cannot be said that all the joinder applications were without foundation. While we acknowledge that these applications significantly prolonged the disposal of the case, we are not satisfied that the Applicant’s conduct was vexatious or lacking in good faith.

31 Offers made by the Respondents: On 24 June 2002, prior to the hearing, the Respondents made an offer to the Applicant to the effect that they would not seek costs if he discontinued his case. They made it clear to the Applicant that if the offer was not accepted and his case was subsequently dismissed under s 111 of the ADA, they would seek a costs order in their favour. The Applicant declined to accept the offer. A similar offer was made on 18 June 2004 but was declined by the Applicant.

32 The Applicant’s complaint was not dismissed under s 111 of the ADA (see para 35 below). We find that the Applicant’s failure to accept the Respondents’ offers does not justify the making of a costs order against him.

33 Reliance on the decisions of Tu and Harding: We are of the view that these decisions can be distinguished from the present case. In Tu v University of Sydney (No. 2) [2002] NSWADTAP 25 the Applicant’s complaint was dismissed pursuant to s 111 of the ADA. In ordering that the Applicant pay partial costs of the original proceedings, the Appeal Panel found at [49] that there was a substantial failure on the Applicant’s part to co-operate with directions and respond to them in a timely way.

34 Similarly in Harding v Vice Chancellor, University of New South Wales [2003] NSWADT 75 the Tribunal dismissed the Applicant’s complaint pursuant to s 111 of the ADA on the basis that it was lacking in substance. In awarding costs to the Respondent, the Tribunal observed at [49] that the Applicant had deliberately chosen not to attend the hearing, having been advised by the Respondent that an application for costs would be made. The Tribunal also observed at [49] that the President of the Anti-Discrimination Board (the ADB) had declined the complaint as lacking in substance (see Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45).

35 In the present case the Respondents chose to withdraw their application to have the complaint dismissed under s 111 of the ADA. The President of the ADB referred the complaint to the Tribunal under s 94 (1) rather than s 91of the ADA. He made no finding that the complaints were lacking in substance.

ORDERS

36 The Respondents’ application for costs is dismissed.