BKY V The University of Newcastle [2014] NSWCATAD 124

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BKY V The University of Newcastle [2014] NSWCATAD 124 Hearing dates: On the papers final written submissions received 30 May 2014 Decision date: 01 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J Conley, Senior Member Decision: The respondent is ordered to pay the applicant's costs as agreed or as assessed within 28 days from the date of these reasons Catchwords: Application for costs - successful applicant Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW); Anti-Discrimination Act 1977(NSW); Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT, 302; AT v Commissioner of Police, NSW [2010] NSWC, 131; Cooper v Western Area Local Health Network[2012] NSWADT 39; Meriton Properties Pty Ltd v DCM Leases Five Pty Ltd (No2) [2010] NSWADT 11. Category: Costs Parties: BKY (Applicant) University of Newcastle (Respondent) Representation: Counsel N Obrart (Applicant) Keith Hurst & Associates (Applicant) Hicksons Lawyers (Respondent) File Number(s): 131018 Publication restriction: s 64 of the Civil and Administrative Review Act 2013 applies

reasons for decision

Background 1The applicant made a complaint that the respondent discriminated against her on the grounds of disability. As part of her complaint the applicant indicated that she would be seeking an order for costs if successful. 2The basis of the complaint was that in 2004 the applicant (BKY) commenced a course for the study of a Bachelor of Medicine (the medical degree) at the University of Newcastle (the respondent). The medical degree is a 5 year full time course. The respondent had a requirement that the medical degree be completed within 8 years. If the degree was not completed within this time an extension of time must be sought in order to be allowed to complete the degree. By January 2012 the applicant had not yet completed her medical degree. She was advised by the respondent that she would need to seek an extension of time to complete the degree. She subsequently sought an extension of time which was declined. 3The applicant claimed that the University of Newcastle discriminated against her on the grounds of her disability. She claimed that for the period of her enrolment with the respondent she had been diagnosed with the psychiatric conditions Bipolar II Disorder, Borderline Personality Disorder and severe psychosocial stressors and that she had symptoms of these conditions present during the course of her study. She claimed that she had a disability within the meaning of the Anti-discrimination Act 1977 and that the respondent either directly or indirectly discriminated against her on the grounds of her disability. It was alleged that the respondent was vicariously liable for the acts of it's employees. 4At the commencement of the hearing the applicant applied for a suppression order pursuant to section 75 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Given the sensitive nature of the Applicant's disability in relation to this application and her future career prospects the Tribunal was satisfied that an order should be made pursuant to section 75(2) of the ADT Act that:1)The disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the Applicant is prohibited;2)The doing of any other thing that identifies or may lead to the identification of the Applicant is prohibited; and3)The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence before the Tribunal is prohibited. 5The matter came before the former Administrative Decisions Tribunal (the ADT) for hearing for hearing over three days on 16 to 18 October 2013. On the third day of the hearing the respondent indicated that it had become apparent after hearing oral evidence that it had not fully complied with a summons for the production of documents. The matter was adjourned to enable this issue to be dealt with. The hearing was resumed on 31 October 2013 and was able to be concluded on that date. At the conclusion of the hearing the parties sought to file written submissions. Leave was granted for the filing of submissions with a time-table set. Final written submissions were then submitted by 5 February 2014. 6This matter was initially commenced in the former ADT in 2013. The hearing was concluded on 31 October 2013 with final submissions filed in February 2014. The matter was determined on 28 March 2014. 7On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal, Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, the matter was a "part heard" proceeding. 8In respect of the complaint the Tribunal found in the applicant's favour. It was determined that the respondent had discriminated against the applicant on the grounds of her disability. The Dean of the Joint Medical Program for the respondent was directed to exercise his discretion to extend time for the applicant to complete her medical degree by 18 months. Written reasons for decision were provided. 9The Tribunal directed that any submissions as to costs be filed and served and a timetable was given. The Tribunal received submissions in writing from both the applicant and the respondent, final submissions were received on 30 May 2014.

Applicant's submissions 10The Applicant submitted that it is fair within the meaning of section 88 (1A) of the ADT Act that the Respondent pay the applicant's costs of these proceedings in line with the principles identified by Deputy President Chesterman in Meriton Properties Pty Ltd v DCM Leases Five Pty Ltd (No2) [2010] NSWADT 11. 11The applicant identified a number of grounds upon which the costs application was based which are summarized below: * The respondent conducted the proceedings in such a way that the applicant was unnecessarily disadvantaged, by failing to produce documents sought by way of Summons. Cross examination of the witness Tracey Bristow near the conclusion of the hearing on day three, revealed that the respondent was in possession of documents in relation to the issue of a comparator. The documents had been sought by way of Summons but not produced. This resulted in the need to adjourn the hearing for the production of documents and for the further hearing. * The respondent unreasonably prolonged the hearing by failing to comply with a Summons for the production of documents relating to the issue of a comparator. This resulted in an adjournment and the prolongation of the hearing at additional costs. * The relative strengths of the parties were such that the respondent's defence was not tenable in fact or law in relation to the issues of disability, detriment, differential treatment, and causation. * The nature and complexity of the proceedings are such that the proceedings took 4 days of hearing. The case was strenuously defended throughout. * The applicant suffered hardship as her costs are significant. She is a student who works as a nurse to support her degree and lives away from home. The respondent has contributed to the escalation of the applicant's costs by the failure to produce documents and failing to admit matters that should have been admitted. * The applicant made an offer to the respondent on 12 October 2012 and the respondent did not reply

Respondent's submissions 12The respondent submits that the application for costs has been filed out of time. The applicant was given 28 days from the date of the decision to file an application for costs, the last day falling on a public holiday being 25 April 2014. Allowing for the public holiday, the last day to file the application for costs was by 28 April 2014 and the applicant filed the application on 29 April 2014, one day late. It was submitted that there is no jurisdiction to make an order for costs as the applicant did not seek leave for an extension of time. 13The respondent denies it's defence to the complaint was untenable. The respondent claims that the applicant was not unnecessarily disadvantaged, nor were the proceedings unreasonably prolonged. In relation to this issue it claims that when it became apparent that documents existed that should have been produced to the Tribunal, Counsel for the respondent raised the issue as part of the legal and ethical obligation to the Tribunal. The respondent took immediate steps to produce the documents in accordance with a subsequent Direction of the Tribunal. A further hearing date was fixed and the applicant had access to the documents and was able to cross examine witnesses. In summary the applicant was therefore not disadvantaged in the manner in which the proceedings were conducted. The respondent disputes the proceedings were complex.

The legislative provisions 14The costs provisions in the Anti-Discrimination Act 1977 and the Administrative Decisions Tribunal Act 1997 (NSW) would have applied in respect of these proceedings had the Civil and Administrative Tribunal Act 2013 and the relevant amending Acts not been enacted. The Tribunal finds that this application relates to "pending proceedings" and therefore the Anti-Discrimination Act and the Administrative Decisions Tribunal Act continue to apply in relation to this costs application: Civil and Administrative Tribunal Act 2013, Sch 1, cl 6(1) and 7(3). 15Section 110 of the Anti-Discrimination Act gave the Tribunal power to award costs under s 88 of the Administrative Decisions Tribunal Act in respect of proceedings before the Tribunal. The general rule is that each party bears their own costs, with exceptions as set out in s 88. The Tribunal may award costs if satisfied that application falls within one or more exceptions to the general costs rule specified in s 88 and it is "fair to do so". 16Section 88 provides: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, " costs " includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

The Decision 17The Tribunal finds that the application for costs was filed one day late. The applicant did not seek leave for an extension of time in the application for costs. The applicant subsequently filed a request for leave which the respondent wrote that they opposed, because it was claimed that there was no direction of the Tribunal for a reply. The delay in filing the submissions was minor, being one day. The applicant sought leave to file the late application after the respondent raised the issue. The application was one day late and there was no evidence that the respondent was prejudiced by the delay or the late request for an extension of time. The Tribunal therefore grants leave for the costs application to be filed out of time. 18In relation to the costs application itself, the Tribunal has regard to the criterion which are set out in section 88 and relevant decisions on the issue of costs. In Alramon Pty Ltd v Jonamill Pty Ltd (No 2)[2009] NSWADT, 302 [11] the Tribunal said, "The decision as to whether or not costs should be awarded, does not simply involve a balancing exercise to determine what is fair. To reiterate, s 88 provides that each party is to bear its own costs unless there is some particular circumstance which makes it fair to order a party to pay the costs of another party and, if such circumstance exists, the Tribunal may then order costs but only if it considers in its discretion that it is appropriate to do so." 19The issue of fairness was considered by the Court of Appeal in AT v Commissioner of Police, NSW [2010] NSWCA 131, where it was stated: [That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act. 20In the decision of Cooper v Western Area Local Health Network (No2) [2012] NSWADT 138 the Tribunal considered an application for costs. The Tribunal looked at the decision of AT v Commission of Police, NSW [2-1-] NSWCA 131 and determined that "three propositions" could be drawn from the decision. a) no costs must be ordered if the Tribunal is not satisfied that it is fair to do so; b) the relevant fairness must be grounded in one of the criteria set out in the Act; and c) the compensatory nature of costs must be taken into account when assessing the "fairness" and that consideration will "generally" favour the successful party. 21It is not in dispute that the respondent did not comply with a Summons to produce documents in relation to the issue of a comparator. Counsel for the respondent raised this with the Tribunal after it became apparent during cross-examination of a witness that documents which had been sought by Summons and had not been produced, did in fact exist. This occurred on day three of what was scheduled to be a three day hearing. It was possible to deal with the situation and it was agreed that the hearing should be adjourned to enable the documents to be produced. The hearing was then resumed following the production of documents and concluded. The applicant submitted that she had prepared her case on the basis of a hypothetical comparator. She then had to resume the hearing and deal with the issues of the actual comparators after obtaining this late material. 22There is a requirement to comply with a Summons for the production of documents. The documents sought by the applicant existed and were in the control of the respondent, albeit stored off site. The respondent for some unknown reason failed to comply with the Summons. The issue of a comparator is a central issue to a complaint of discrimination. The Tribunal accepts that the respondent's conduct would have unnecessarily disadvantaged the applicant by causing the applicant additional unnecessary expense in the preparation and running of her complaint before the Tribunal. This is because until almost the conclusion of the hearing the complaint was predicated upon a hypothetical comparator and following the production of documents, there was an actual comparator. It also directly led to the prolongation of the hearing because of the adjournment which the Tribunal finds in the circumstances was unreasonable. The Tribunal therefore finds that these are matters which fall within the scope of section 88 upon which an order for costs could be based. 23The Tribunal does not accept the applicant's argument that the respondent's defence was untenable in fact or law. The Tribunal also does not accept the applicant's claim that the respondent failed to admit matters which should have been admitted. 24The outcome of this matter was extremely important to the applicant's potential future career path. She therefore engaged solicitors to represent her. The Tribunal does find that this matter was relatively complex, but of itself would not be sufficient grounds to warrant a departure from the general rule for costs. 25The applicant has however established that this is a matter which falls within the scope of section 88. As noted in AT v Commissioner of Police, NSW, although an order varying the general rule may be made only if the relevant criterion is satisfied, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. 26This was a matter which was relatively complex and both parties were legally represented. The applicant has established that the facts of this matter fall within the scope of section 88. The Tribunal finds that the conduct of the respondent has led to an escalation of the applicant's costs. Having regard to the circumstances of this matter and the compensatory purpose of an award of costs, the Tribunal finds that it is fair to make an award for costs. 27These proceedings are "pending proceedings" which were commenced in the ADT. The parties did not provide any specific submissions in relation to the award of costs in accordance with the ADT's Costs Guideline. The Tribunal therefore orders that the respondents are to pay the applicant's costs as agreed or as assessed.

Orders 28The respondent is ordered to pay the applicant's costs as agreed or as assessed within 28 days from the date of these reasons.

********** 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: 01 September 2014