Reddy v International Cargo Express [2005] NSWADT 3 (10 January 2005)

Last Updated: 18 January 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Reddy v International Cargo Express [2005] NSWADT 3


PARTIES: APPLICANT
Evelina Reddy
RESPONDENT
International Cargo Express



FILE NUMBERS: 031151

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 29/10/2004



DECISION DATE: 10/01/2005

BEFORE: Britton A - Judicial MemberBolt M - Non Judicial MemberNemeth de Bikal L - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Australian Postal Commission v Dao & Anor (No 2) (1986) 6NSWLR 497 at 505)
Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35
Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10
Gallagher v NSW Police Service [1998] NSWEOT
Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4
Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36
Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45
Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
Wilde v University of Sydney (No 2) [2004] NSWADT 16.

APPLICATION: Costs

MATTER FOR DECISION: Costs


APPLICANT REPRESENTATIVE: APPLICANT
K Eastman, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
P Watts, solicitor

ORDERS: 1. The respondent to pay the applicant's legal costs incurred in respect of the 19 April 2004 directions hearing and the costs thrown away on 3 May 2004
2. If the parties are unable to agree on the amount of costs within 28 days, costs are to be determined by a costs' assessor in accordance with the Legal Profession Act, 1987.


Reasons for Decision:

REASONS FOR DECISION

1 Evelina Reddy the applicant in these proceedings applies for costs under s 114(2) of the Anti-Discrimination Act 1977 ("the A-D Act"). The respondent, International Cargo Express opposes that application.

2 In our decision published on 30 September 2004, Reddy v. International Cargo Express [2004] NSWADT 218, the applicant’s complaint of discrimination on the ground of carer’s responsibilities was upheld and the respondent ordered to pay damages of $ 16,385.

3 This decision is made on the papers. It is to be noted that both parties filed further submissions in addition to those they were invited to file on 30 September 2004. We have not had regard to those later submissions.

Discretionary costs rule

4 Section 114 (1) of the A-D Act provides that each party to an inquiry shall pay his or her own costs. However, s 114(2) grants the Tribunal a discretion to "make such orders as it thinks fit" where it "is of the opinion in a particular case that there are circumstances that justify it doing so".

5 The principles underlying this provision are well known and have been the subject of detailed consideration by the Equal Opportunity Division of the Tribunal: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10; Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4; Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25; Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36; Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45; Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 and Wilde v University of Sydney (No 2) [2004] NSWADT 16.

6 The Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski observed at [63]-[65], that s 114 of the ADA does not prescribe a test to be applied, but rather creates a presumption in subsection (1) and a discretion in subsection (2). The Panel cautioned that this discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made: Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998. The Panel went on to say at [67] that in order to justify awarding costs "there has to be something over and beyond a normal course of circumstances":

This should be understood to mean nothing other than that the presumption in section 114(1) 'must yield' when in a particular case there are circumstances justifying the making of a costs order (Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 at page 315). To similar effect, there may be in a particular case 'circumstances which justify the departure from the general rule' (Australian Postal Commission v Dao & Anor (No 2) (1986) 6NSWLR 497 at 505).

7 In Borg v Commissioner, Department of Corrective Services & Anor the Tribunal examined in some detail previous decisions where costs orders have been made in favour of the applicant. The Tribunal observed at [21] that as a general proposition a combination of circumstances is required in order to justify an award of costs.

8 Section 88 of the Administrative Decisions Tribunal Act 1997 ("the Tribunal Act") provides, that subject to the Tribunal’s own rules and any other legislation, costs will only be awarded "if [the Tribunal] is satisfied that there are special circumstances warranting an award of costs". Practice Note 12, issued on 4 March 2003, sets out the following examples of "special circumstances" which may warrant an order for costs under s 88(1):

- whether a party has conducted proceedings in a way that disadvantaged another party to the proceedings by conduct such as...

- 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 the parties, including whether a party has made a claim that has no tenable basis in fact or law;

Submissions

9 It is submitted for the applicant that a costs order is appropriate for the following reasons. First, the respondent it is alleged refused to participate in attempt to mediate or conciliate her complaint. Second, the respondent did not comply with the timetable set by the Tribunal for the filing and serving of its evidence, which forced the applicant to prepare her evidence in reply in very little time. Third the evidence filed by the respondent on 22 April 2004 differed from previous versions of its evidence and was not "marked up". Fourth, a further directions hearing on 19 April 2004 was made necessary because of the respondent’s failure to comply with directions for the filing of evidence and production of documents under summons. Finally it is submitted that a significant part of the first day of hearing, 3 May 2004 was lost because of the respondent’s conduct namely the request for an adjournment and summary dismissal of part of the claim.

10 The respondent submits that the circumstances of this case do not warrant a departure from the usual costs rule as no special circumstances exist. First, it asserts that contrary to the applicant’s contention, it made an offer of settlement which was rejected. Second, while the respondent concedes that its evidence was out of time, it asserts this did not disadvantage the applicant. Third, the Points of Claim significantly broadened the scope of the initiating complaint lodged with the Anti Discrimination Board and, as a consequence, the matters that needed to be addressed by the respondent.

Findings and Conclusions

11 The issue for us to determine is whether the circumstances of this case warrant an order for costs. A party seeking costs bears the onus of proving that their case falls within one of the narrow range of exceptions to the general provision that costs will not be ordered. As made clear in Practice Note 12 the conduct of parties may be relevant in a costs determination.

12 Both parties made submissions about the conduct of each other in settlement discussions. Each asserts that their opponent effectively stymied settlement. We have no evidence before us which might assist us determine the truth or otherwise of these claims and accordingly cannot take this into account in our determination.

13 To consider the submissions of the parties it is necessary to briefly recite the history of this matter. The Tribunal’s file reveals that both parties were late in filing and serving their evidence. The directions made by the Tribunal on 15 December 2003 required the applicant to file and serve points of claim and evidence by 16 February 2004 and the respondent to file and serve its evidence and points of defence within a further 28 days. Upon receipt of that material the applicant was granted 14 days to put on any evidence in reply.

14 The applicant’s initial material was filed on 19 February 2004 and served on 27 February 2004. The respondent was therefore required to file and serve by 25 March 2004 but did not do so until 22 April 2004. The respondent had faxed some of its material to the applicant on 16 April 2004 but did not serve the filed documents until 22 April 2004. The applicant’s material in reply was served on 30 April, the last working day before hearing.

15 A summons was issued at the request of the applicant on the respondent on 12 March 2004. The return date was 1 April 2004. The documents described in Items 7 and 9 to the schedule to that summons were produced by that date but Items 1-6 and 10 were not. The matter was stood over to 8 April 2004. No appearance was made for the respondent. No explanation was given for the failure to produce those items until the 19 April 2004 directions hearing which dealt with both the alleged failure to comply with the summons and the late filing of the respondent’s material.

16 The matter was set down for 3 and 4 May 2004. The matter was not concluded on 4 May and the matter proceeded on to a third day.

17 At the commencement of the hearing Counsel for the respondent sought an adjournment to, among other things, put on additional evidence in answer to the Applicant’s statement in reply. That application was refused. The matter was however stood over to the following day to allow Counsel the opportunity to identify those parts of the Applicant’s statement (filed and served on 30 April 2004) which she asserted should properly have been raised in evidence in chief.

18 As is apparent from this outline this matter had an unfortunate history. The representatives of both parties were faced with the difficult position of receiving documents close to the hearing date. While neither party was without fault in our view the respondent’s 28 day delay was excessive. This delay required the Tribunal to make further directions on 19 April 2004 to ensure that the scheduled hearing dates i.e. 3 and 4 May could proceed. At that hearing it was agreed that the matter could still proceed as scheduled providing all parties complied with a tight timetable i.e. that the respondent filed its documents by 21 April, and the applicant by 3 May 2004. It is noteworthy that while no objection was raised by the respondent to the amended timetable at the directions hearing, on the first day of hearing an adjournment was requested because of , among other things, the timing of the applicant’s material in reply.

19 While the respondent was not the sole party to cause the Tribunal’s timetable to be upset, in our view the length of the delay it caused was excessive. While it took some steps to remedy the problem faced by the applicant of receiving its material only two weeks before hearing, it is to be noted that the material provided on 16 April was incomplete, and the statements eventually served contained a number of significant amendments which were not marked up on the served material.

20 We do not accept the submission that the applicant suffered no prejudice as a result of the respondent’s delay. The applicant was put in the position of not knowing what evidence and defences the respondent might rely on until less than two weeks before the commencement of hearing. There may well have been good reasons why the respondent’s documents were late but if so, they were not disclosed.

21 A further troubling aspect of the respondent’s conduct was its failure to offer any reason for its failure to produce the balance of items requested under summons until 19 April. Again there may be good reasons why this was so but no explanation was offered till late in the proceedings.

22 In our view the request for an adjournment on the first day of hearing was the natural consequence of the timetable going astray, for which in our view the respondent’s conduct in the pre hearing stage was largely responsible.

23 For the reasons as given we believe that the combination of circumstances presented by this case, warrant an exercise of our discretion under s 114(2) of the A-D Act. Our order will be restricted to the costs of the direction hearing of 19 April and the applicant’s costs thrown away on 3 May 2004. Our concerns with the respondent’s conduct primarily relate to its conduct in the pre hearing stage. We see nothing in its conduct after that would warrant an order for costs.

Orders

1. The respondent to pay the applicant’s legal costs incurred in respect of the 19 April 2004 directions hearing and the costs thrown away on 3 May 2004

2. If the parties are unable to agree on the amount of costs within 28 days, costs are to be determined by a costs' assessor in accordance with the Legal Profession Act, 1987.