ECF v Western Sydney University [2019] NSWCATAD 153

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ECF v Western Sydney University [2019] NSWCATAD 153 Hearing dates: On the papers Date of orders: 02 August 2019 Decision date: 02 August 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: C A Mulvey, Senior Member Decision: 1. A hearing of the respondent's application for costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The respondent's application for costs is refused.

3. Each party is to pay its own costs of the proceedings. Catchwords: COSTS – Whether special circumstances warrant an award of costs – Whether applicants' claims had a tenable basis in law –Whether costs should be ordered Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Western Sydney University Act 1997 (NSW) Cases Cited: Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 Edmondson Rural Holdings Pty Ltd v Gordon [2017] NSWCATAP 155 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38

Wagg v Farthing (No 2) [2015] NSWCATAP 263 Category: Costs Parties: ECF (Applicant)

Western Sydney University (Respondent) Representation: ECF (Applicant in person)

Lachlan Carr (Respondent) File Number(s): 2019/00117434 Publication restriction: Nil

REASONS FOR DECISION Introduction 1. This is an application filed by Western Sydney University for costs. The costs were incurred in proceedings in which ECF sought administrative review of a decision made by the appeals committee of the respondent on 4 March 2019. The decision which is the subject of ECF's application related to a review of an original decision of the respondent's student misconduct committee on 14 December 2018 ("the original decision"). 2. The application was dismissed by the Tribunal on 4 June 2019, because ECF withdrew the application after she obtained advice that the Tribunal had no jurisdiction to determine the matter. 3. The respondent now seeks that ECF pay its costs. The Hearing 1. The application for costs was decided by the parties to be determined on the papers without a hearing. 2. Section 50 New South Wales Civil and Administrative Tribunal Act 2013 (NCAT Act) provides: "50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, ... (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. ...." 1. The parties have filed submissions together with documents in support of their respective positions. I am satisfied that the matter can be properly determined without a hearing in accordance with s 50 (2) of the NCAT Act.

The Submissions and Evidence 1. ECF and the respondent have each filed submissions in relation to costs. ECFs submissions include a number of annexures which are referred to below by page number (Exhibit A1). The respondent relied upon a letter it sent to ECF on 30 April 2019 (Exhibit R1).

ECF's submissions and evidence 1. ECF submitted that no order for costs should be made in favour of the respondent. She provided a chronology of events as follows: "25 October 2018: A hearing with the Misconduct Committee was held, as I was alleged to have sent messages to students in online forums using pseudonyms. I was at the conclusion of this meeting informed that a decision will be made in two weeks. 14 December 2018: The University advised me of a finding of general misconduct being sustained and I was given the opportunity to appeal this decision, which I did. Please note that this occurred seven weeks not two weeks later. 5 February 2019: An Appeals Committee heard my grounds of appeal. At the conclusion of the meeting, I was told that a decision will be made 'as soon as possible'. 4 March 2019: I was advised that the Appeals Committee upheld the decision made by the Misconduct Committee. 11 March 2019: I applied to the Administrative Appeals Tribune (AAT) upon receiving legal advice from a local community legal centre (Toongabbie Legal Services). 15 March 2019: The AAT advised me that they do not have jurisdiction to hear my matter. 18 March 2019: I applied for Legal Aid (Civil and Administrative Division). 25 March 2019: Legal Aid refused my application for a grant (Annexure 13). 8 April 2019: I lodged an application with NCAT at the Penrith office. 6 May 2019: I received a letter from the University informing me that NCAT has no jurisdiction to hear my matter and that I accordingly withdraw my application (Exhibit A1, page 11 to 12). This was simply not possible as I had yet to receive any legal advice pertaining to the jurisdiction of the NCAT. 7 May 2019: A teleconference was held with Ms Pearson and Mr Lachlan Carr of Western Sydney University. 8 May 2019: I applied for pro bono assistance through the Law Society. 17 May 2019: I contacted a solicitor that the Law Society had located for me to get advice. Please note that the Law Society can take up to two weeks to locate a solicitor who will provide advice at no cost. It was during this meeting that the solicitor made me aware that the matter is not within NCAT's jurisdiction and that I should indeed withdraw from the substantive proceedings." 1. ECF sent an email to the Tribunal withdrawing her application on 20 May 2019 (Exhibit A1). The Tribunal dismissed the application on 4 June 2019. 2. ECF submits that the University failed to advise her if there were any external grounds for appeal, be this judicial or otherwise. She annexed a letter received from the respondent dated 4 March 2019 (Exhibit A1, page 2 - 6). ECFsubmits that after the AAT declined her application on the basis of a lack of jurisdiction, she undertook research on the respondent's website and located a document entitled 'Leadership and Governance - 2. External Review' (Exhibit A1, page 7). The document refers to the review process of decisions made by the respondent under the Government Information (Public Access) Act 2009 (GIPA). The review process refers to this Tribunal when exercising its jurisdiction pursuant to GIPA. ECF said that she read (Exhibit A1, page 7) to mean that she could make an application to NCAT to review the original decision. She is now aware that her application was misconceived. 3. ECF states in her submissions: 'The university could have mitigated any losses if they had provided me with the information sent by Mr Lachlan Carr, which I received on the 6th of May 2019, at the time the Appeals Committee handed down their decision. This would also have been consistent with clause 3.20 of the University's Guidelines on Procedural Fairness and Good Decision Making … the university had a further opportunity to provide me with information pertaining to the abovementioned when I contacted the Office of Government Services on the 4th of April 2019. Had this information been provided at that point, I would have sought legal advice prior to lodging an application with the NCAT.' 1. Annexed to ECF's submissions, (Exhibit A1, page 8, 9 and 10) is a copy of the Guidelines on Procedural Fairness and Good Decision Making of the respondent (Exhibit A1, page 10). At paragraph 3.20, a student can expect: 'students should be told of any further internal or external rights of review or appeal against a decision. This should be done when they are notified of the decision.' 2. On 4 April 2019 at 2.43 p.m., ECF wrote to the Returning Officer of the respondent and Ms Hannah McLean stating: 'As there are no further grounds of appeal regarding my matter at WSU, are you able to tell me if I can take this matter to the Administrative Appeals Tribunal or any other similar body?' (Exhibit A1, page 14). Ms McLean at 4.10 p.m. replied: '… the university cannot advise you of your legal rights. You will need to obtain independent legal advice'. Immediately after receiving that reply ECFresponded at 4.15 p.m.: 'I am not seeking legal advice from WSU. I need WSU to state that the matter is reviewable by the AAT or another governmental agency. This information should have been provided to me in the appeal decision that I received on the 4th of March 2019.' (Exhibit A1, page 15). Ms McLean at 4.29 p.m. replied: '… I repeat my earlier statement that this is a matter for independent advice. It is not a matter for me, Sophie, or any other staff member to guide you where to go from here. The rule clearly states that there is no further internal avenue of appeal, and next steps of external appeal (whether by judicial review or otherwise) are determined by the legislation governing those bodies. The university cannot provide you with the information you are requesting' (Exhibit A1, page 15).

The submissions of the Respondent 1. The respondent in its submission correctly sets out the lack of jurisdiction this Tribunal has in determining ECF's application. It refers to the Western Sydney University Act 1997 (WSU Act), being the Act which provides for the constitution and function of the University. The respondent submits that the WSU Act does not confer jurisdiction on the Tribunal to review any of its decisions as an administratively reviewable decision pursuant to s 7(1) Administrative Review Decisions Act 1997 (the ADR Act). Therefore, this Tribunal does not have jurisdiction pursuant to s9 of the ADR Act to review of the original. Ultimately this was not an issue between the parties given that ECF withdrew her application. 2. The respondent makes the following submissions as to special circumstances that warrant a costs order: 1. ECF was the subject of allegations of general misconduct, including in relation to conduct she was alleged to have engaged in online, directed at other students of the University. Those allegations were found by a student misconduct committee to have been proven for the purposes of the University Students Misconduct Rule. ECF was given the opportunity to appeal the decision of the Student Misconduct Committee convened in the first instance, which she did. The Appeal Committee upheld the decision of the committee convened in the first instance. 2. ECF seeks to appeal the decision of the Appeal Committee by way of the application made to the Tribunal, however that application relates to matters which the Tribunal has no jurisdiction to hear. ECF's application and the substantive proceedings commenced, therefore have no tenable basis in law. 3. On 30 April 2019, the university wrote to ECF, by post and by email, to put her on notice of the university's position that the Tribunal did not have jurisdiction to hear the application. In the same letter the university invited ECF to withdraw her application in the Tribunal, noting it would seek to recover its costs if she did not withdraw (Exhibit R1). 4. Despite having been put on notice of the university's position, either by way of the university's letter of 30 April 2019, or by way of this application and submissions, ECF has not withdrawn her application. As a result the university has been put to the expense of participating in the substantive proceedings (including an appearance before the Tribunal) and filing an application to dismiss her application. 1. In its letter (Exhibit R1) the respondent's view is set out in terms of the Tribunal not having jurisdiction to determine ECFs application. Further, it refers to costs as follows: 'If you withdraw the application by 3.00 p.m. on 3 May 2019 we will not seek to recover any costs from you in relation to the application. If you do not withdraw the application, we reserve the right to ask the Tribunal to make an order requiring you to pay the university's costs.'

Discussion of the evidence 1. The letter from the respondent (Exhibit A1 page 1) which is referred to by Ms Mclean, makes comment about there being no further internal review or appeal process available to ECF. It is however unfortunate, that the Respondent did not provide a more direct response to the specific questions asked by ECF. If it had, ECF may not have proceeded with this application. By no means do I suggest that the respondent had a legal obligation to do so. However, such action would be within the spirit of the respondent's own guidelines as set out at paragraph 3.20 (Exhibit A1, page 10), which action was ultimately exercised by Mr Lachlan Carr (Exhibit R1). 2. Exhibit R1 appears on its face to include the address for service by ordinary post and to a Hotmail email address. Importantly, the email address is not ECF student email address. I note in previous email correspondence passing between ECF and the respondent (Exhibit A1 page 1 and 14 – 16), her student email address has been used as the address for service. I am not satisfied that ECF received the email allegedly sent to her Hotmail address on or before receiving the letter in the ordinary post, or at all. I prefer and accept ECF's evidence that she received the letter from the respondent by ordinary post on 6 May 2019. ECF in these circumstances would not have been able to accept the respondent's offer before it expired at 3pm on 3 May 2019.

Legislative Provisions 1. The primary rule, set out in s 60(1) of NCAT Act, is that each party to proceedings in the Tribunal is to pay the party's own costs. This is qualified by s 60(2), which provides that 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. 2. Section 60(3) of the NCAT Act sets out matters to which the Tribunal may have regard when determining whether there are special circumstances warranting an award of costs , as follows: "(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." 1. The respondent relied upon s 60(3)(c), submitting that the ECF claims had no tenable basis in law, and s 60(3)(g), on the basis that ECF should withdraw her claim was relevant to a determination of special circumstances.

Are there special circumstances warranting an award of costs? 1. The first matter to consider is whether "special circumstances" exist, warranting an award of costs, within s 60(2) of the NCAT Act. "Special circumstances" refer to circumstances that are out of the ordinary, not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Wagg v Farthing (No 2) [2015] NSWCATAP 263 at [6]; Edmondson Rural Holdings Pty Ltd v Gordon [2017] NSWCATAP 155 at [14]. 2. The matters contained in s 60(3)(a), (b), (d), and (f) are not pressed by the respondent and in my view are not relevant based upon the evidence before me.

Did applicants' claims have a tenable basis in law? 1. One of the matters the Tribunal may consider, when determining whether there are special circumstances warranting an award of costs, is 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 (NCAT Act, s 60(3)(c)). The word "tenable" should be given its ordinary meaning. The Macquarie Dictionary defines it to mean, and I accept that it means, "capable of being held, maintained, or defended, as against attack or objection". 2. It is uncontroversial that on 20 May 2019, ECF conceded her claim was untenable. She withdrew her application which led to an order dismissing it. 3. On balance, I am satisfied that the proceedings were misconceived as the Tribunal had no jurisdiction to determine the matter. Apart from ECF's ignorance as to the law, there is no evidence that the application was brought for any collateral purpose. ECF had a genuine belief, albeit misguided, that this Tribunal had jurisdiction to determine her application. 4. I am not satisfied that ECF by refusing to withdraw her claim upon receipt of the respondent's letter (Exhibit R1), before she obtained legal advice, amounts to circumstances that are out of the ordinary. Similarly, a lay person such as ECF, who received a letter where the time for responding to an offer had expired, would likely have thought it too late to take any action in order to prevent a claim for the recovery of costs. These are also matters which do not amount circumstances that are out of the ordinary.

Conclusion as to special circumstances 1. If a costs applicant establishes that some of the circumstances in s 60(3) apply, it does not necessarily follow that a costs order should be made. The Tribunal must "weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs": Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. Even where special circumstances exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made (Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21], [24]). 2. I am not satisfied that there are special circumstances warranting an award of costs, having regard to, the relative strength of the application made by ECF, including that her application had no tenable basis in law. I have found that ECF received the letter from the respondent setting out its view concerning the Tribunals lack of jurisdiction on 6 May 2019, three days after the respondent's offer expired. I accept that she sought pro-bono legal assistance from the Law Society on 8 May 2019 and after receiving legal advice from a solicitor on 17 May 2019 she withdrew her application 20 May 2019. ECF is not a legally trained. Whilst a prudent chronology of events might have been to obtain legal advice before commencing proceedings, she acted in a reasonably swift manner in withdrawing her claim soon after receiving the respondent's letter (Exhibit R1). For these reasons, I am not persuaded there are special circumstances that are out of the ordinary justifying a departure from the ordinary rule that each party bear their own costs. 3. The application that ECF pay the costs of the respondent is refused. 4. The order of the Tribunal is: 1. A hearing of the respondent's costs application is dispensed with, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The respondent's application for costs is refused. 3. Each party is to pay its own costs of the proceedings.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. 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

Amendments 05 November 2019 - Anonymisation 06 November 2019 - further anonymisation 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: 06 November 2019