Asghari v SBS Radio [2001] VCAT 1755 (9 August 2001)

Anti -Discrimination - Costs on withdrawal of complaint - Principles - Victorian Civil and Administrative Tribunal Act 1998 s.74.

Medium Neutral Citation [2001] VCAT 1755

Pursuant to section 74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders-

1. That the Complainant must pay to the Respondent the Respondent's costs incurred as a result of-

(a) the Complainant's failure to file and serve adequate Particulars of Complaint;

(b) the Complainant's failure to indicate within a reasonable time whether or not he opposed the Respondent's request for an extension of time in which to file and serve its submissions on its application to strike out the complaint;

2. The Complainant must pay to the Respondent 10% of the Respondent's costs in relation to its application for costs.

3. The costs referred to in paragraph 1 must be assessed on a party/party basis and on scale D of the County Court scale. In default of agreement they must be assessed by the Principal Registrar. They must be paid as agreed between the parties or, in default of agreement, on a date fixed by the Principal Registrar.

[1] I reserved my decision on this application. My decision is that it is granted in part. This is made clear in the Order. I award to the Respondent ten per cent of its costs in relation to the cost application itself. The costs will be on scale D. Otherwise details of the decision appear in the order. The order is available and my associate is now in a position to give the copies of the order to the parties. I now give my reasons. This complaint against the Respondent, whom I call SBS, was the subject of unsuccessful attempts at conciliation before the Equal Opportunity Commission. At Mr Asghari's request, that commission referred the complaint to VCAT in February of this year. In March of this year, the Tribunal directed particulars of complaint be filed and served. Particulars of complaint were filed with the Tribunal at the beginning of April and the Respondent says (and it is not denied) that they were served on the Respondent on 10 April, approximately eight days after the time when they were directed to be served. I will return to these later.

[2] SBS then applied to have the complaint struck out under s.75 of the Victorian Civil and Administrative Tribunal late 1998, which I call the VCAT Act. It filed and served submissions on its application on 5 June 2001. The Tribunal had, by direction dated 18 May 2001, required these submissions to be filed and served by 30 May 2001. This means then that the submissions were filed and served six days late. On 14 June 2001, Mr Asghari filed with the Tribunal and served on SBS notice discontinuing this proceeding. SBS now applies for costs in relation to the proceeding.

[3] The position under the VCAT Act as far as costs on withdrawal of a complaint and the withdrawal of the complaint itself, is this. Under s.74 of that Act, an applicant may withdraw a referral or application before the Tribunal determines it, if the Tribunal gives leave. This provision is modified for complaints referred to VCAT under the Equal Opportunity Act, 1995, by clause 21 of schedule 1, of the VCAT Act. This permits an applicant, here a Complainant, to withdraw the complaint, without the need to obtain the Tribunal's leave to do so. Under s74(2)(b) of the VCAT Act, the Tribunal may order an applicant, who withdraws an application or referral, here a complaint, to pay all the part of the costs of the other parties to the proceeding. There's a suggestion in the submissions made for Mr Asghari that this provision simply means that the provisions about the awarding of costs under s.109 of the VCAT Act apply. The effect of s.109 (1) to (3), is that each party bears their own costs, unless the Tribunal, having regard to the fact as listed in the section, considers it fair to order otherwise.

[4] In my view, this submission is not correct. Section 74(2)(b) is a separate power to order costs on the withdrawal of a proceeding. There is no rule here that costs lie where they fall, unless the Tribunal considers it fair to order otherwise. Here the Tribunal has an unfettered and broad discretion as to costs, similar to the discretion which the Anti-discrimination Tribunal had under the now repealed s.138 of the Equal Opportunity Act, 1995. However, the fact that there is a broad and unfettered discretion under s 74(2)(b) of the VCAT Act also means that there can be no automatic rule that costs will always be awarded against the withdrawing party. The decision as to costs must be based on the particular circumstances of each case. There is no reason why similar factors to those which have been taken into account in decisions under s.138 of the Equal Opportunity Act, could not also be taken into account in determining whether or not to award costs under s74(2)(b) of the VCAT Act. (As to this, see Kallinikos v. Hellinger, a decision of VCAT dated 15 March 2000). These factors include whether a complaint has been instituted vexatiously, that is, predominantly to embarrass the Respondent, or place an unreasonable burden on a Respondent, or for some purpose other than the adjudication of rights under the Equal Opportunity Act; whether the applicant has conducted the proceeding unreasonably; whether the applicant has made or persisted in a claim in which he or she had no genuine belief, or in circumstances where, although he or she may have genuinely believe the complaint to be well founded, the claim had no foundation and no reasonable person would have believed that it had. (As to this, see for example, Blaney v. National Bank of Australia Limited, a decision of VCAT dated 17 September 1999).

[5] It is also relevant to take into the account the nature of the proceeding. This is a complaint under the Equal Opportunity Act. That legislation has a social rather than a commercial objective. Its objectives include to eliminate discrimination as far as possible, and for provide redress to its victims. The scheme of the Act involves the establishment of a simple system of complaint, which is accessible to people whether legally represented or not. One of the focuses of the Act is conciliation. It is consistent with this scheme and this focus that, as far as complaints are concerned, the requirements that must be met before a complaint before VCAT can be withdrawn are simpler than those for other proceedings. The leave of the Tribunal is not required before a complaint can be withdrawn.

[6] The Tribunal has said in the decisions that I have mentioned earlier, that it should exercise its costs discretion in a way that will not frustrate the purposes of the Equal Opportunity Act, or deter people from excessing that jurisdiction or from attempting to conciliate.

[7] SBS argues that Mr Asghari has instituted and persisted in a claim with no foundation, where a reasonable person would not have instituted or persisted with such a claim.

[8] On a reading of the complaint of the whole and the particulars of the complaint as amplified by a number of letters in the material before me, I now summarise the claims. It appears that the claim is that in February and March 1999, Mr Asghari requested SBS Melbourne radio to broadcast announcements relating to a forthcoming convention of Iranian Australians that he was organising to be held in Melbourne. It is not disputed that SBS refused to broadcast these announcements stating that they breached its relevant codes of practice and editorial and internal guidelines for the broadcasting of community announcements or information. On a reading of the Complainant's material as a whole, the claim is that a substantial ground for the refusal to broadcast these announcements was either Mr Asghari's opposition to the Iranian Government, or the pro-Iranian stance of the management and presenters of the Melbourne Persian-Farsi program by SBS and the knowledge of that management and those presenters that Mr Asghari did not share those views. On this basis, Mr Asghari claims direct discrimination on the basis of his political belief in the provision by SBS of its radio broadcasting services in Melbourne. Mr Asghari is claiming that he was treated less favourably by SBS Melbourne than by SBS Sydney, where one of his convention announcements was broadcast. Among other things, SBS says that its sole reason for refusing to broadcast the announcements in Melbourne was that they breached its codes of practice and guidelines.

[9] I am not satisfied that this claim is so clearly without foundation that no reasonable person could have instituted or persisted in it. It is really the subject of considerable dispute between the parties.

[10] SBS next says that Mr Asghari's motive in instituting this complaint was not to adjudicate rights under the Equal Opportunity Act, but rather to take up financial resources of SBS, which could better have been used in operating its broadcasting service, and also to achieve the dismissal of the presenter of the Persian-Farsi radio program in Melbourne. There is no dispute that for some years Mr Asghari has criticised the presenter of that program for unbalanced reporting, has made a number of complaints against that person, and has suggested that that person be dismissed. SBS says and the Complainant does not deny that at the initial directions hearing before VCAT when the complaint was referred to it, one of the remedies canvassed was dismissal of this presenter. But, shortly thereafter, when particulars of complaint were filed and served, that ground of relief was omitted. It may well be that when making this complaint,

Mr Asghari was in part motivated by continuing anger against this presenter, but I am not satisfied that this anger was his predominant motivation for the complaint. On all the material before me I am not satisfied that the complaint was predominantly instituted for a motive other than the adjudication of Mr Asghari's alleged discrimination.

[11] SBS next says that the complaint is frivolous. It says (and the Complainant does not deny), that in April 1999, SBS offered the Complainant an opportunity for an on-air interview in relation to the forthcoming convention, an opportunity which he declined.

[12] This submission, in my view, is not enough to justify an award of costs in SBS' favour. First, there is a dispute between the parties as to the reason for Mr Asghari's declining the interview. He says he was ill. SBS says he told one of its employees he declined the interview on legal advice. Second, on its face, the allegation that there has been a refusal to broadcast material because of a person's political beliefs, is a serious one. It is not made less serious because of a subsequent offer by the broadcaster of a broadcast in a different format. SBS next argues that the matters in this complaint should have been aired before the Australian Broadcasting Authority, rather than by way of a complaint under the Equal Opportunity Act. I do not agree. This complaint, read as a whole, claims discrimination in breach of the Equal Opportunity Act. This is the very subject with which that Act deals. While a similar subject might have been raised with the Australian Broadcasting Authority in relation to claimed breach by SBS of the codes of practice, that is essentially not what this claim is. Moreover, the ABA itself has indicated in a letter which is before the Tribunal and is dated 18 October 1999, that it has no jurisdiction to deal with complaints of discrimination. I am not satisfied that this Tribunal and the Equal Opportunity Act is a clearly inappropriate forum in which to raise these matters.

[13] It is argued for Mr Asghari that SBS by making an application to strike out the complaints on the grounds that insofar as they relate to matters concerning the SBS, the Equal Opportunity Act is inconsistent with the Act under which the SBS is constituted in the sense of that term as used in s.109 of the Commonwealth Constitution, and by supporting that application with extensive and complex submissions, the Respondent made it impossible, in practical terms, for Mr Asghari to continue with his complaint. He could not afford the Senior Counsel, whom he would need to represent him on an application like this and could not afford, again, to employ senior counsel at the hearing. Assuming that the application were unsuccessful and the matter went to hearing and similar arguments were raised. SBS, he says, as a corporation with more funds than he had, could afford to run complex defences of this kind and could, in effect, make it financially unviable for him to continue.

[14] My approach to this submission is this. Under s.75 of the VCAT Act, a Respondent has a right at any time to apply to have a proceeding struck out or dismissed on the grounds mentioned in the section. The application may be supported by whatever arguments the Respondent chooses, including arguments that relate to inconsistency between State and Commonwealth laws. There is nothing in the material to suggest that this strike-out application was made as some kind of unfair tactic against the Complainant.

[15] Finally, I come to a number of submissions which relate to what is said to be unreasonable conduct by the Complainant in the conduct of this proceeding. That conduct is said to justify an award of costs against him. I agree in part with these submissions. I first deal with a number of matters, which I do not consider justify an award of costs.

[16] SBS first relied on what it said was unreasonable delay in lodging the complaint. Mr Asghari lodged this complaint some 18 months after the alleged discrimination occurred. I am not satisfied that this delay is so unreasonable as to justify an award of costs against him. I note that the Equal Opportunity Commission did not exercise its discretion to decline the complaint, because it was lodged too late, and that SBS did not ask it to do this.

[17] SBS then says that it was unreasonable of Mr Asghari not to have decided earlier to withdraw the complaint. I do not agree. The complaint is not clearly or manifestly untenable. The Equal Opportunity Commission did not decline it, but sent it to conciliation. At the Equal Opportunity Commission stage, SBS did not apply to have it struck out. Mr Asghari had a right to require the commission to refer the complaint to VCAT where conciliation attempts had been unsuccessful. After it became clear that a struck out was going to be fought on the basis of a complex defence, Mr Asghari withdrew the complaint without delay.

[18] The parties raised a number of matters, which they said were related to unreasonable conduct on both their parts, concerning what was said to be a settlement offer. I deal no further with this offer, because I am satisfied that it was not unreasonably made by the Complainant, and not unreasonably rejected by the Respondent.

[19] However, there are two respects in which I consider Mr Asghari has conducted this proceeding in an unreasonable manner. The first is by not supplying adequate particulars of complaint. The particulars of complaint provided on

2 April 2001, are clearly inadequate, as to details and material facts, characterisation of the claim, (for example, whether it related to direct or indirect discrimination), and as to particulars of loss and damage.

[20] This led to a number of letters from SBS solicitors to the Complainant's solicitors requiring that further particulars of complaint be furnished, and, eventually, most were furnished after an exchange of letters, the last of which was written on 17 May 2001. However, still the nature of the Complainant's claim is not sufficiently characterised, in particular, the nature of the discrimination claimed.

[21] The second aspect of the conduct of the proceeding by Mr Asghari, which I consider to have been unreasonable, relates to SBS's request to Mr Asghari for addition time in which to file and serve its submissions on the strike out application. SBS advised the Complainant and the Tribunal on 30 May 2001, that it sought an extension of time in which to file and serve those submissions. They had been directed, as I have said, to be filed on 30 May. Mr Asghari's solicitors did not advise SBS that they opposed the application until

4 June 2001, and this, in my view, was unreasonable. I would further add that the original particulars of complaint in this proceeding, as I have mentioned, were served late and contrary to the Tribunal's directions.

[22] In respect of these matters, I award costs in SBS favour. I note in the particulars of complaint as amplified by the various letters from the Complainant's solicitors that Mr Asghari claims various specific amounts of compensation and also damages for loss of credibility in the Iranian community to the extent of VCAT's jurisdiction. As far as complaints under the Equal Opportunity Act are concerned, that jurisdiction was unlimited as to amount. Accordingly, the appropriate scale of costs should be scale D of the County Court scale.

[23] As to costs on the application for costs itself, I take into account that SBS has been only successful in part and consider that an award of ten per cent of the Respondent's costs is appropriate. The scale should be the same scale, as I have mentioned, that is scale D.