Beasley v Department of Education and Training (Anti Discrimination) [2006] VCAT 2044

Pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) this Tribunal orders-

1 That the respondent is to pay part of the complainant's costs of and incidental to the respondent's application to strike out or dismiss the complaint under s75 of the VCAT Act. For that purpose, I apportion the costs to be paid to the complainant at eighty per cent of the complainant's total costs. The costs are to be on a party/party basis on Scale A of the County Court Scale.

2 That the respondent is to pay part of the complainant's costs of and incidental to the rest of the proceeding. For that purpose, I apportion the costs to be paid to the complainant at seven per cent of the complainant's total costs. Those costs may include disbursements to Ms Julie Phillips in respect of any period on or after 6 January 2006 for interpreting services provided in connection with the proceeding to the complainant or the complainant's next friend, but do not include any other costs claimed by Ms Phillips. Those costs are to be on a party/party basis and on Scale C of the County Court Scale.

3 In default of agreement, costs under paragraph 1 or 2 are to be settled or assessed by the Principal Registrar. In default of agreement, costs under paragraph 1 or 2 are to be paid on a date to be fixed by the Tribunal or the Principal Registrar.

4 The parties have liberty to apply in respect of any matter arising. That application is to be made on or before 3 November 2006.

1 The complainant's costs applications are successful in part. My orders indicate the extent of that success and the appropriate Scale for the award.

2 I handed down my decision on the full hearing of this case in February 2006. The complainant was successful in part. I say more about this later. By decision handed down in June 2006, I determined what remedy was appropriate. I awarded compensation to the complainant of $20,000. I refused the other remedies sought. The complainant now applies for an order that the respondent (the State) pay all his costs in the proceeding.

3 Earlier, in September 2004, the State had applied under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) to strike out or dismiss the complaint. On that application the State was successful in part. The complainant applies for an order that the State pay the complainant's costs in relation to that strike out application. The parties made submissions on that matter, but its determination was deferred until the outcome of the main proceeding was known.

4 I have comprehensive submissions from the parties on these costs applications. The strike out application and what I call the main proceeding are distinct, and different circumstances apply. I deal with each in turn.

5 I first make some general comments on s109 of the VCAT Act. This is the relevant provision concerning these costs applications. I then deal in turn with the strike out application and the main proceeding. For each, I first consider the claims and the decision, the parties' submissions, and then state my conclusion.

6 The effect of s109(1) to (3) of the VCAT Act is relevantly this. Subject to the Division, each party bears their own costs. But the Tribunal may order a party to pay another party's costs only if it considers it fair to do so having regard to a number of listed factors. These factors include whether a party has conducted the proceeding in a way that unnecessarily disadvantages another party, whether a party has been responsible for unreasonably prolonging the time taken to complete the proceeding, the relative strengths of the claims made by each party including whether a party has made a claim with no tenable basis in fact or law, the nature and complexity of the proceeding, and any other matter considered relevant by the Tribunal.

7 Section 75 of the VCAT Act relevantly permits the Tribunal, on application, to strike out or dismiss all or part of a proceeding if it considers that the proceeding is frivolous, vexatious, misconceived, lacking in substance or an abuse of process. Section 75(2) permits the Tribunal, if it makes an order striking out or dismissing the proceeding, to order the original applicant in the proceeding to pay compensation to another party. Here, it is not the State which applies for costs. It is the complainant. That application is governed by s109 of the VCAT Act.

8 Deputy President Coghlan decided this application on 5 April 2005. In summary, her reasons were these.

9 The State had first asked for the whole complaint to be struck out or dismissed as an abuse of process. It asked this for three reasons. It argued that the remedy sought was in the circumstances no longer relevant to Dylan Beasley's situation, that the complainant had engaged in 'forum shopping', and that there had been unreasonable delay in lodging the complaint.

10 The Tribunal was not satisfied that the remedy sought was precluded. It was not satisfied that the complainant had engaged in 'forum shopping' by lodging the complaint first with the Equal Opportunity Commission, then withdrawing it and attempting to lodge it with the Human Rights and Equal Opportunity Commission (HREOC), and then (having been advised that the Commonwealth legislation precluded this) re-lodging the complaint with the Equal Opportunity Commission. The Tribunal considered that the attempt to lodge the complaint with HREOC had been made on incorrect advice and that, as soon as the error was understood, the complaint was re-lodged with the Victorian Equal Opportunity Commission.

11 As far as delay was concerned, the Tribunal noted that the delay might affect the quality of evidence and prejudice the respondent. However, the Tribunal considered that, properly read, the complaint concerned not just the year 1999 but the whole of the period for which Dylan Beasley (Dylan) was in school at Pearcedale Primary School. That period lasted from 1999 to 2003.

12 In the alternative, the State applied to have the complainant's claim of direct discrimination struck out as incapable of constituting impairment-based treatment, or of constituting less favourable treatment on the basis of impairment. The State also applied to strike out the claim of indirect discrimination on the basis that it had not imposed the requirement or condition claimed, or, if it had, that the complainant could comply with that requirement or condition or that the requirement or condition was reasonable.

13 The Tribunal refused to strike out both these claims. It did so because these matters could not be determined without evidence. They must go to a hearing.

14 The Tribunal agreed with the State that five paragraphs of the particulars of complaint should be struck out for various reasons. These included that some material in the paragraphs was not covered in the complaint, and that some material concerned teaching skills and methods which, even if covered by the complaint, was incapable of constituting impairment-based discrimination.

15 I summarise these. It was argued for the complainant that the State was effectively wholly unsuccessful on the strike out application. All the key parts of the complaint survived. The State ought to have known that it would be unsuccessful, because of the outcome in the case of Catholic Education Office v Clarke[1]. The relative strength of the complainant's claim and weakness of the State's claim justified an order for costs in the complainant's favour.

16 The State's submissions were these. The starting point is that parties bear their own costs unless in particular circumstances the Tribunal considers it fair to order otherwise. Costs do not automatically follow the event. This is particularly so in the Tribunal's Equal Opportunity Act jurisdiction. That Act is legislation with social rather commercial objectives. Costs orders might undermine those objectives by deterring people from using the mechanisms provided by that Act, for fear that costs might be awarded against them if they should lose at the Tribunal stage. This position also applies in respect of strike out applications. Here, the strike out application was successful in part. It cannot be said that the State should never have made it, in the light of the Clarke decision. That decision turns on its own facts and is not identical to this case. It does not bind the Tribunal.

17 The relative strengths of the claims of the complainant and the State do not justify a costs order. In its strike out application decision, the Tribunal did not say that any aspect of the application had no tenable basis.

18 The State mentions other provisions of s109 in its submissions. However, although the complainant's costs submissions briefly mention s109(3)(d) and (e) in this context, it is fair to say that the complainant's submission is almost wholly based on s109(3)(c) (relative strengths of the claims). It is unnecessary for me to summarise the other submissions here.

19 In my view, the State should be ordered to pay eighty per cent of the complainant's costs on the strike out application. In my opinion, the State was unsuccessful as to eighty per cent of that application.

20 The State is correct in arguing that this does not of itself automatically mean that a costs order should be made. The starting point is that each party bears its own costs unless the Tribunal considers it fair to order otherwise. Whether it is fair to order otherwise must depend on the particular circumstances of each case, and no general rule can be adopted. When s109(3)(c) speaks of the relative strengths of the claims, it cannot mean that if, on the evidence, the Tribunal simply prefers the claim of one party to another, it will then always be fair to order costs in favour of the successful party. This would in effect be to apply an automatic rule that costs follow the event. After referring to the relative strengths of the claims, s109(3)(c) goes on to mention claims with no tenable basis in fact or law. This gives an idea of what 'relative strengths' means. In my view, it means that a substantial disparity between the strength of one claim and the weakness of its competitor must exist before an order for costs will be fair having regard to this paragraph.

21 In my view, after a reading of the Tribunal's reasons for decision on the strike out application, the claim that the whole of the complaint was an abuse of process was very weak. The claims seeking the strike out of the allegations of direct and indirect discrimination were also very weak. They were premature. They could not be determined until the full hearing, and in the light of evidence given there. On this basis, the State should pay a proportion of the complainant's costs which reflects the proportion which those claims bear to the whole of the strike out application proceeding. That proportion is eighty per cent.

22 The appropriate Scale for this order is Scale A of the County Court Scale, on a party/party basis. This was a relatively early stage of the proceeding, before the filing and service of witness statements and particulars of defence. What was in dispute was still unclear.

23 I should add that I agree with the State about the relevance of Clarke's case.

24 In summary, four claims were pursued at the hearing. The first related to Auslan as the medium of educational instruction best suited to Dylan. The second alleged prohibited discrimination by the State in the access to the curriculum provided to Dylan (a profoundly deaf signing child) compared to his hearing peers. This second claim was a claim for breach of the Act, and not just for consequential relief. The third claim alleged prohibited discrimination by the State in that it provided to Dylan a medium of educational instruction which resulted in Dylan not meeting his educational potential, or obtaining lesser educational outcomes compared to his hearing peers. The fourth related to participation in the classroom. It alleged that by using a medium of instruction for Dylan which was less effective than the spoken word used for his hearing peers, the State directly discriminated against him on the basis of his impairment. It alleged that, in those classes where no interpreter or teacher of the deaf was present to help Dylan, the State indirectly discriminated against him by requiring that he receive instruction by the spoken word and without an interpreter or teacher of the deaf.

25 The Tribunal found for the complainant as to the fourth claim, and found the other three claims not proven. I regard all four claims as of equal importance. The fourth claim comprises separate claims of direct and indirect discrimination. The indirect discrimination claim is confined to Dylan's maths class (taught by Mr Tonks) in grade 5 and to terms 3 and 4 of his grade 6 year. I regard the class participation claim as representing twenty five per cent of the total case. I regard the indirect discrimination claim as representing ten per cent of the total claims and the part of it which relates to Mr Tonks's maths class as representing seven per cent out of that ten per cent.

26 As I have said earlier, the claims as to remedy were only successful in part.

27 I summarise these. The complainant asks for the costs of the main proceeding on the Supreme Court Scale, including the costs in relation to Ms Julie Phillips. I deal with the claims concerning Ms Phillips later.

28 The complainant relies on those factors in s109(3)(c) to (e) which concern the relative strengths of the claims, the nature and complexity of the proceeding, and other factors which (the complainant says) ought to be considered relevant by the Tribunal.

29 There are four bases for the orders sought. First, there is what is said to be the circumstances of the parties. Dylan is a child, obliged to attend school by statute, subject in education to the State's control and authority, and reliant on the State for its expertise in choosing the best method in which to educate him. The State is in a position of trust as far as he is concerned. It should have made reasonable enquiries to determine the kind of education which should be provided to him. His next friend, his mother, receives government benefits and would be disadvantaged if a costs order were not made. The Tribunal, in its decision, made adverse comments concerning the Program for Students with Disabilities (PSD), the program under which students with disabilities at State schools receive funding from the State Government.

30 The second basis is what is alleged to be the State's pre-litigation conduct. It is said that the State has an obligation to adhere to human rights standards and to set an example to others. The State ought to have taken notice of what is said to be the failings of its PSD, or to have followed certain international instruments to which Australia is a party and ought to have had regard to resolutions of various international bodies. It knew or ought to have known, throughout the period to which the complaint relates, that Auslan was the best medium of instruction for deaf signing children. It should have known this because of the cases of Clarke and of Hurst v State of Queensland[2] and certain other complaints made under the Equal Opportunity Act 1995 against the State. It is said that the State is not acting consistently with its policy of inclusive education.

31 Third, there is what is said to be the State's approach to this litigation. It is said that the State has employed senior and junior counsel and approached the case with an open cheque book. The Tribunal is asked to infer that the State has done this, not so much to defend this case, as to defend its PSD. It is said that a model litigant would have realised that its case was significantly impaired and would not have pursued it.

32 Fourth, it is said that the complainant was substantially successful. It is argued that the claims should not be regarded separately, but rather as different formulations of the same claim. It was permissable to formulate the claims in this way because of the communication barriers between the complainant's counsel and his clients.

33 The complainant also relies on some additional matters. He seems to ask the Tribunal to conclude that the State behaved unreasonably where, according to the complainant, discovery of a briefing note was requested by the complainant, the respondent could not find the briefing note, and a copy of the briefing note was then tendered by the complainant at the hearing. Also, the complainant argues that to deny him a costs order would be to deny him the fruits of the Tribunal's judgment. Finally, it is said that the proceeding was complex, and was approached by the State as if it was a Supreme Court case.

34 It is argued for the complainant that costs should include the costs of Ms Julie Phillips. It is said that Ms Phillips assisted the complainant's counsel, either as an expert, researcher, or adviser, and provided Auslan interpreting services which allowed communication between the complainant's counsel and Dylan and his mother. Until 6 January 2006, these services were provided by Ms Phillips as an employee of Deaf Children Australia; and after that, as an independent contractor.

35 In summary, the State's submissions are these. Each party should bear its own costs. The general approach to costs in the equal opportunity jurisdiction should apply here. The complainant was not substantially successful in this case. The State has not conducted itself in a way that unnecessarily disadvantaged the complainant, unreasonably prolonged the case, or was oppressive, improper or unfair. The State simply took reasonable steps to defend itself against wide-ranging and serious allegations.

36 On many occasions, the Tribunal preferrred evidence given on behalf of the State to that given on behalf of the complainant. The PSD, although the Tribunal commented on some of the evidence relating to it, was not an issue to be determined in the case. Other cases such as the Clarke case and the Hurst case turned on their own facts and were of little assistance here. The Tribunal had found that other complaints were irrelevant here.

37 As to the Ministerial briefing note, there was confusion as to the identity of the document and there was no suggestion that the State did not tell the truth when its representative said that the document could not be located. There was no explanation as to why the complainant sought discovery of a document already in its possession.

38 The case was not complex. Costs should not be ordered as a substitute or enhancement for compensation or damages.

39 As to Ms Phillips's costs, the Tribunal can only award professional legal costs under s109. In any case, there is no suggestion that the complainant expended money or incurred liability in respect of services provided by Ms Phillips when she was an employee of Deaf Children Australia.

40 In my view, apart from one relatively small aspect, each party in the main proceeding should bear its own costs. That aspect concerns that part of the claim based on Dylan's class participation, which relates to his grade 5 maths class (taught by Mr Tonks). The evidence for the State was consistent with Dylan's evidence that, in this class, there was no interpreter or teacher of the deaf present. Dylan was instructed, as were his hearing peers, by written and visual means and otherwise only by the spoken word. I found that his class participation was severely limited at these times. I found that in these circumstances, indirect discrimination had occurred. The State's case in this one aspect seems so extremely weak, and the complainant's claim so extremely strong, that it is hard to imagine why this part of the claim was contested. In these circumstances, the respondent should pay part of the complainant's costs. I have said that I regard this claim as representing seven per cent of the total claim. The respondent should pay seven per cent of the complainant's total costs of the main proceeding.

41 In all other respects, I accept the State's submissions. There is nothing improper, unreasonable, vexatious or oppressive about the way in which the State conducted the proceeding. It did not unnecessarily prolong the case. The complainant was not substantially successful.

42 I reject what I regard as the complainant's attempts, through this costs application, to re-visit aspects of the case where I found against the complainant. I made it clear that this case is not about the best medium of communication for a profoundly deaf signing child. It is about the narrower issue of whether prohibited discrimination within the meaning of the Equal Opportunity Act 1995 has occurred. Each of the Clarke and Hurst cases is so fact-specific as to be of little assistance. Although some of the evidence about the PSD was sufficiently concerning as to require comment from me, the PSD was not an issue requiring determination.

43 Each case must turn on its own circumstances and on the wording of s109. Broader matters concerning international instruments and the nature of the duties of the State, as a provider of State schools, to students at those schools, are irrelevant.

44 I do not award costs to the complainant in respect of the other part of the class participation issue. The relative slowness of sign-supported English compared with the spoken word only became clear in oral evidence given at hearing. I made findings on that evidence. There is nothing in s109(3) that would justify an order of costs in respect of this issue.

45 There is nothing to suggest that the State acted improperly concerning the Ministerial briefing note. There is no suggestion that its representatives lied when they said they could not locate it. It is hard to understand why the complainant sought discovery of a briefing note which was already in the complainant's possession.

46 I now turn to Ms Phillips's costs. I do not agree that s109 of the VCAT Act is confined to professional legal costs. Justice Morris, the President of VCAT, has expressed the view in Aussie Invest Corporation Pty Ltd v Hobsons Bay CC[3] that Cachia v Hanes & anor[4] did not apply in the statutory context in which VCAT exists. He agreed with a number of cases decided in VCAT's Planning List in which professional advocates appearing for parties in that List were awarded their costs. He expressed the view that a party appearing in person could be entitled to costs to reimburse him or her for loss actually incurred in preparation for or attendance at the hearing.

47 However, in this case, the complainant was represented by counsel. There is no suggestion that Ms Phillips is a professional advocate within the meaning of s62 of the VCAT Act. She was not called as an expert witness. The interpreting services which she provided to Dylan and his mother in connection with this proceeding, in respect of the period before 6 January 2006, appeared to have been provided as an employee of Deaf Children Australia. To the extent that she provided those services in connection with the proceeding after 6 January 2006, and to the extent that the complainant or complainant's counsel paid for or incurred a liability for those services, this would no doubt be disbursements in the proceeding. This is the only part of Ms Phillips's costs which I consider to be claimable.

48 It is true that in some cases, a failure to make an order for costs in a complainant's favour may mean that a complainant is effectively denied the fruits or benefits of a judgment in his or her favour, because the money he or she receives is entirely used to pay costs. This is not, as the State argues, to regard costs as a substitute for or enhancement of damages or compensation. While this is a relevant consideration, it must be balanced against the other considerations in s109(3), and cannot displace the wording of the section. Balancing all the other matters I have mentioned, this factor does not change my award.

49 I now come to the appropriate Scale. The complainant seeks costs on the Supreme Court Scale, having regard to the complexity of the case. The State asks for Scale A of the County Court Scale, which it correctly says is often used in the relatively rare costs orders made in the anti-discrimination jurisdiction of VCAT.

50 I ordered compensation in this proceeding of $20,000. This would, at first sight, make Scale B of the County Court Scale appropriate. However, while the case was not as complex as is argued by the complainant, it was more complex than is argued by the State. It involved complex law and legal submissions, substantial expert evidence, and a considerable amount of other evidence. The State was represented by senior and junior counsel and, to my mind, appropriately so given the nature and complexity of the case. I am satisfied that Scale C of the County Court Scale is appropriate.

51 I have given the parties liberty to apply within twenty one days should any question arise.

[1] [2004] FCAFC 197

[2] [2006] FCAFC 100

[3] [2004] VCAT 2188

[4] [1994] HCA 14; (1994) 179 CLR 403