STICCA and HOUSING AUTHORITY

[2018] WASAT 67 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)

CITATION:   STICCA and HOUSING AUTHORITY [2018] WASAT 67 (S)

MEMBER:   SENIOR MEMBER J MANSVELD

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED:   21 AUGUST 2018

FILE NO/S:   EOA 28 of 2017

BETWEEN:   MARIO GUISEPPE STICCA

Applicant

AND

HOUSING AUTHORITY

Respondent

Catchwords:

Equal opportunity - Cost application under s 87 of the State Administrative Tribunal Act 2004 (WA) - Cost application dismissed

Legislation:

Equal Opportunity Act 1984 (WA)
Freedom of Information Act 1992 (WA)
Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 47(1), s 87
State Administrative Tribunal Rules 2004 (WA), r 40, r 41

Result:

Application for costs dismissed

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr Simon Thackrah

Solicitors:

Applicant	:	N/A
Respondent	:	Housing Authority

Case(s) referred to in decision(s):

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50

Chew and Director General of the Department of Education and Training [2006] WASAT 248

Sticca and Housing Authority [2018] WASAT 67

Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 28 July 2018 the Tribunal published its decision in Sticca and Housing Authority [2018] WASAT 67 (Sticca).

2. Mr Mario Sticca had made a complaint of discrimination against the Housing Authority under the Equal Opportunity Act 1984 (WA) (EO Act).

3. Mr Sticca had alleged unlawful discrimination on the grounds of sex, age and race in the area of good services and facilities.

4. The complaint was dismissed.

5. The Housing Authority is seeking its costs pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

6. The EO Act contains no provision as to costs.

The strike out application

1. At a directions hearing on 22 January 2018 before a judicial member of the Tribunal, the Housing Authority applied to have Mr Sticca's complaint struck out pursuant to s 47(1) of the SAT Act.

2. The judicial member declined to hear the application, it would appear, on the basis that the determination of Mr Sticca's complaint would be better served by way of a hearing on the merits of his case.

3. At the directions hearing Mr Sticca was advised that he would need to show that any unfair treatment he may have received was due to the grounds he nominated in his complaint to the Equal Opportunity Commission.

4. In the context of the Housing Authority's application for strike out, it does not appear that Mr Sticca was warned about the potential for a costs application to be made against him should his complaint not be successful.

The relevant legislation

87.     Costs of parties and others

(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ­

(a)whether the party (in bringing or conducting the proceeding before the decision­maker in which the decision under review was made) genuinely attempted to enable and assist the decision­maker to make a decision on its merits;

(b)whether the party (being the decision­maker) genuinely attempted to make a decision on its merits.

(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.

(6)The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.

The submissions of the Housing Authority

1. The submissions of the Housing Authority can be divided into three parts.

2. First that Mr Sticca pursued a claim that was untenable and lacking in any foundation.  A reasonable person could not have held a belief that the complaint could have been successful.

3. The Housing Authority submits that Mr Sticca offered no evidence that the less favourable treatment he experienced was as a consequence of his sex, race or age nor did he put to the relevant Housing Authority officers that the true reason for them refusing to refund the application fees was because of his sex, race or age.

4. Secondly that Mr Sticca acted unreasonably in the proceedings in that he had rejected an offer of settlement made by the Housing Authority.  The offer which was made in December 2017 was for the payment of $60 to Mr Sticca which represented the two application fees he had paid for access to material under the Freedom of Information Act 1992 (WA) (FOI Act).

5. The offer was not made without prejudice or in the context of the Tribunal initiated mediation.  The Housing Authority submits that the application fees were the monetary loss suffered by Mr Sticca in the applications made under the FOI Act.

6. Thirdly that Mr Sticca had brought the proceedings for improper purposes which constitutes an abuse of process.  The Housing Authority submits that it was Mr Sticca's actual intention in the equal opportunity proceedings to attempt to further litigate a decision to deny him access to particular CCTV footage which had been resolved by a review decision of the Information Commissioner under the FOI Act.

7. The consequence of this according to the Housing Authority was that Mr Sticca made baseless allegations against certain Housing Authority officers but which he did not specifically pursue in the hearing.

8. The Housing Authority cites the decisions of the Tribunal in Chew and Director General of the Department of Education and Training [2006] WASAT 248 (Chew) and Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S) (Summerville) in support of its submission that a costs order may be warranted in circumstances where the applicant's case is implausible or so weak it should never have been maintained, that there was no case to answer or that the applicant acted so unreasonably or inappropriately in the proceeding so as to constitute an abuse of process (see Chew at [85] and Summerville at [34] ­ [38]).

9. The Housing Authority claims $7,330 in costs on the basis that the costs of a salaried legal practitioner (which was the case for counsel) should be the same as a legal practitioner in private practice and that the Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) provides a useful guide to the maximum rates that might be allowed on a party to party basis even though it is expressed as only applicable on a legal practitioner/client basis.

10. The submissions of the Housing Authority set out in detail the hours spent and tasks undertaken by counsel in the calculation of the quantum of costs.

The submissions of Mr Sticca

1. The submissions in response by Mr Sticca can be summarised as follows:

   •The application made by Mr Sticca was broader than the grounds of sex, age and race and was                   'for discrimination in general' (paragraph 6).

   •By restricting the grounds of discrimination to sex, age and race, the Housing Authority is attempting to enable the relevant Housing Authority officers to continue   'the cover up' in respect to the contents of the CCTV footage (paragraph 12).

   •The application for alleged discrimination was not brought for an improper purpose.  The Housing Authority should acknowledge that the treatment Mr Sticca received from Housing Authority officers was 'unprofessional and unsatisfactory' (paragraph 12).

   •The discrimination which Mr Sticca states he attributed to Housing Authority officers on the grounds of sex, age and race 'is probably the result of systemic incompetence since the officers are unqualified, and therefore they have made inconsistent judgments' (paragraph 11).

   •The CCTV footage should be viewed before the Tribunal makes its decision.  The footage will demonstrate the 'unprofessional, discourteous conduct' against Ms Pamela Dell by a Housing Authority officer and confirm the continued 'cover up' of that behaviour (paragraph 15).

   •The matter was not simply concerned with the applications fees 'but also about the discrimination which I experienced when I tried to complain about the tenants who were costing me thousands of dollars' (paragraph 16).

   •The Housing Authority's submission that the legal costs charged should be the same as if counsel was in private practice is 'unjustified and fanciful'.  The Housing Authority should provide evidence of its counsel having been paid at the nominated rate in private practice (paragraph 8).

Consideration of the issues

1. The starting point for the Tribunal under s 87(1) of the SAT Act is that each party is to bear its own costs.

2. The approach to be taken by the Tribunal in the application of s 87 of the SAT Act has been determined by the Court of Appeal of the Supreme Court of Western Australia in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale).

3. The approach was usefully summarised in Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 at [14] and [15].

4. Relevantly for this matter:

   •The facts which the Tribunal is bound to consider and is precluded from considering are to be determined by implication from the subject matter, scope and purpose of the SAT Act as properly construed.

   •The discretionary power is to be exercised judicially.

   •The power is to be exercised if it is fair and reasonable in all the circumstances of the case to do so.

   •The presumption as to costs that operate in curial litigation have no application.

   •The onus is on the party seeking a costs order to establish that such an order should be made.

   •The nature of the dispute is a relevant consideration.

   •The parties to the proceeding before the Tribunal are taken to be cognisant of the objectives of the Tribunal as expressed in s 9 of the SAT Act to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible, and in a way which minimises the costs to the parties.

   •It will be relevant to the Tribunal to consider whether and to what extent the party who bears the onus on costs can establish that the other party's conduct has impaired the Tribunal's statutory objectives.

   •Claims made that lack merit, that are vexatious or grossly exaggerated may justify the exercise of a discretion under s 87(2) of the SAT Act.

5. Importantly the Court in Questdale said at [51]:

   Section 87(2) is to be construed in the context that the legal rationale for an order of costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act[.]

6. In Mr Sticca's complaint the Housing Authority conceded that he had been treated less favourably than his friend Ms Dell in the matter of the fees paid on applications made by them under the FOI Act     (Sticca at [67]).

7. The question to be determined on the merits was whether this unfavourable treatment occurred as a consequence of unlawful discrimination.

8. A problem with Mr Sticca's case was what appeared to be the ultimate nature of his enquiry (the alleged criminal act(s) of certain Housing Authority officers) and its relationship with his complaint under the EO Act (Sticca at [77] ­ [86].

9. In this regard Mr Sticca was hampered by not having legal representation and on the case presented by him it seems also an absence of legal advice.

10. However, Mr Sticca was entitled to represent himself at the hearing of his complaint.

11. As a self-represented litigant Mr Sticca was hindered by his lack of understanding of the legal complexities that can arise in an equal opportunity matter, in particular that receiving less favourable treatment may not of itself constitute unlawful discrimination.  In respect to this point however, he was advised in the directions hearing on 22 January 2018 what he would need to prove for his complaint to be successful.

12. I have accepted that Mr Sticca has a long-standing grievance with the Housing Authority and that he has been impassioned in his attempt to right the wrong he sees as having occurred (Sticca at [77] and [78]).

13. Despite an application for strike out by the Housing Authority,     it was ultimately decided by the Tribunal that his complaint should be heard on the merits.

14. Mr Sticca did not appear to have been forewarned that a costs application was a possibility both at the time of the application for a strike out and subsequently.

15. As regards the offer of settlement the Housing Authority says it made to Mr Sticca (which he is said to have rejected), other than the offer being stated in the application for costs there is no evidence before me that indicates the settlement offer was made in accordance with s 87(5) of the SAT Act and r 40 and r 41 of the State Administrative Tribunal Rules 2004 (WA).

16. For all these reasons I am not persuaded that I should make a costs order in favour of the Housing Authority.

Order

1. The application for costs is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR J MANSVELD, SENIOR MEMBER

21 AUGUST 2018