Public interest justified $77,000 costs award in discrimination case

Cases

Public interest justified $77,000 costs award in discrimination case

The Full Bench of the NSW Administrative Decisions Tribunal has awarded a correctional officer $77,000 to cover her legal costs in mounting a successful discrimination and harassment case against the Department of Corrective Services and her supervisor.

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The Full Bench of the NSW Administrative Decisions Tribunal has awarded a correctional officer $77,000 to cover her legal costs in mounting a successful discrimination and harassment case against the Department of Corrective Services and her supervisor.
 
Background
 
The employee, a correctional officer at Mulawa Correctional Centre, had previously won a claim that she was sexually harassed and racially discriminated against by her supervisor. The Administrative Decisions Tribunal also found that she had been victimised by the department’s delay in transferring her to the John Morony Correctional Centre. 
 
In this second case, she applied for costs pursuant to s114(2) of the Anti-Discrimination Act 1977. The Department of Corrective Services and the correctional officer's supervisor opposed the claim for costs.
 
The officer claimed that although she was awarded a total of $47,500 in damages, her legal costs exceed $77,000. She said that in order to substantiate her claims, she was required to conduct and fund proceedings that involved seven days of hearing. 
 
Leaving aside the victimisation complaint, which solely concerned the Department of Corrective Services, she said she was required to meet a completely different defence from each of the respondents.
 
Findings
 
The Full Bench of the Administrative Decisions Tribunal said the general rule concerning costs, set out in s114(1) of the Act, provides that each party to an inquiry shall pay their own costs.
 
However, s114(2) empowers the tribunal to make 'such order as to costs . . . as it thinks fit' where it 'is of the opinion in a particular case that there are circumstances that justify it doing so'. It said the potential circumstances listed in the section appeared 'to reflect an overall concern that the substantial rights and protections conferred by the Act should not be undermined by the cost of vindicating them'.
 
The bench found the case involved a matter of public importance, that is, the rights of correctional officers to work in an environment free of harassment and the corresponding obligations of the Department of Corrective Services to provide such an environment. 
'The public interest aspect of the case assumes even greater significance when it is recognised that the prevailing ‘prison culture’ inhibits correctional officers from making formal complaints against their supervisors … The case clearly highlights the importance of the department's policies and grievance procedures being properly implemented by the [department’s] most senior officers at Mulawa. It is likely to have a beneficial flow on effect to other correctional institutions.'
The bench went on to say that as the employee's legal costs exceed her total damages award by nearly $30,000, she would clearly be significantly out of pocket in the absence of a costs' order in her favour.
 
The bench said the department’s defence against the race discrimination and sexual harassment claims 'lacked any real prospects of success from the outset'. 
 
This conclusion was based on the supervisor’s seniority within the department, the fact that the department never denied that the supervisor had sexually harassed the officer in the manner alleged or that he had made the alleged racist remarks to her. 'Indeed the department itself had instituted disciplinary proceedings against him and found them substantiated.' 
 
The bench also noted that the Governor of Mulawa was on notice in 1996 and 1997 about the supervisor’s inappropriate conduct towards female members of staff.
 
The bench concluded that the Department of Corrective Services and the supervisor should cover all the officer’s costs.
 
See: Borg v Commissioner, Department of Corrective Services & Anor, [2003] NSWADT 35, February 28, 2003.
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