Medium Neutral Citation [2002] VCAT 92

Pursuant to section 75(2) of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal Orders -

1. That the Applicant must pay the Respondents' costs in relation to this proceeding, but only in respect of the period commencing on and from 2 July 2001. This does not include the costs of the proceeding on 7 December 2001, which the Tribunal has already ordered the Applicant to pay to the Respondents.

2. The costs referred to in paragraph 1 are to be on a party/party basis on Scale A of the County Court Scale. In default of agreement they are to be assessed or settled by the Principal Registrar. They are to be paid as agreed or, in default of agreement, on or before a date fixed by the Principal Registrar.

[1] My decision is that there is to be an award of costs against Mr Boek. It will be from 2 July 2001 and it will be on scale A of the County Court Scale. I now explain my reasons for this decision.

[2] On 7 December 2001 Mr Boek's complaint was dismissed under s.75 of the Victorian Civil and Administrative Tribunal Act 1988, which I call the VCAT Act. Section 75(2) of that Act permits the tribunal, if it strikes out or dismisses a proceeding under that section to order the applicant, here Mr Boek, to pay another party an amount to compensate the other party for costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

[3] In exercising the broad discretion given to the tribunal by this subsection the tribunal has in its jurisdiction under the Equal Opportunity Act 1995, which I call the Equal Opportunity Act, not apply the automatic rule that costs follow the event. It has looked at the matter on a case-by-case basis and has taken into account factors similar to those listed in s.109(3) of the VCAT Act. One of those factors is that a party to the proceeding has conducted the proceeding in a way that unnecessarily disadvantages another party.

[4] I constituted the Tribunal at the hearing at which this complaint was dismissed. Mr Boek, I note, did not oppose that dismissal. The respondents have now asked for costs. They submit that Mr Boek has conducted this proceeding in a way that unnecessarily disadvantages them. To the extent I have indicated by the period to which the order applies, I agree with their submission.

[5] The reasons why I have come to this conclusion are these. On 29 March 2001, the Tribunal had dismissed much of Mr Boek's claim. What was left was in summary a claim of impairment discrimination. The impairment alleged was HIV AIDS. The discrimination claim was based on the respondents' treatment of Mr Boek as if he were a person suffering from a temporary or short-term impairment or an impairment that would eventually resolve so that he would again be fit for work.

[6] The allegation was on this basis. The respondents required him to submit to regular medical reporting and medical status reports and that ultimately when he failed to do this, his income protection policy was suspended.

[7] The Tribunal was not satisfied that this part of the claim was manifestly hopeless. Those parts of the claim that were dismissed however included claims that the respondents on the basis of Mr Boek's political or religious beliefs had treated him in the way I have just described.

[8] There was also a claim that the respondents by this alleged treatment had breached the Federal Constitution. Those claims were also dismissed. Mr Boek's claims, included in the original complaint, and the submissions which he made on the strikeout application included voluminous material describing his religious and political beliefs.

[9] The Tribunal, after dismissing certain of the claims on 29 March 2001, then set a timetable within which the respondents had liberty to apply for costs. The respondents did not apply for costs within that set time. I do not consider that now, some eight months later and having chosen not to exercise that option, they can now apply for costs on the strike-out application.

[10] The respondents do however also apply for costs with respect to the remainder of the proceeding. I have said already that in the order which ultimately dismissed the claim on 7 December 2001, costs of the day were awarded to the respondents. I now deal with the additional costs which the respondents seek.

[11] On 4 June 2001, the Tribunal directed Mr Boek to file and serve particulars of the surviving claims. What Mr Boek filed and served was a voluminous document in effect repeating his original claims include those claims which the Tribunal had dismissed. The document did not set out events in chronological order and was in many places unclear. Not only did it include material concerning the dismissed claims but it was, in my view, a document which was not in a form that would enable the respondents to prepare particulars of defence.

[12] In July 2001, on 19 July to be exact, on 16 October 2001 and again on 16 November 2001, the Tribunal made similar directions requiring particulars of complaint. Each time Mr Boek filed and served material which included the dismissed claims, it was not in chronological order and was not in a form which would enable the respondents to prepare particulars of defence. Ultimately on 7 December 2001, the Tribunal held a further directions hearing.

[13] It is clear from what Mr Boek said to the Tribunal at that hearing that he regards the only important part of his claim as the claim that the respondents discriminated against him on the basis of his religious and political beliefs. It is also clear that he would continue to put forward that claim if this proceeding were to continue. In effect he ignores the fact that these claims have been dismissed and continues to file documents in this proceeding as if the claim still survived.

[14] I take the view that this is conduct of the proceeding which unnecessarily disadvantages the respondents and this is one factor on which I base the award of costs. I would also add that Mr Boek has persistently failed to comply with the Tribunal's directions which were designed so that proper particulars of complaint could be filed and served.

[15] The Tribunal has borne in mind that until this costs application was made, Mr Boek had no legal representation in this proceeding. It has, at various directions hearings, explained to him which of his claims still survived and what particulars of his case he must supply. I do not think that Mr Boek failed to understand this guidance. It seems however that he above all wishes to continue to put forward the claims based on religious beliefs or political activities.

[16] I have said that I am satisfied that by conducting the proceeding in this way, he unnecessarily disadvantaged the respondents and that disadvantage lay in the persistent failure to particularise the surviving claims only and the inclusion in particulars of the dismissed claims. In my view there has also been on Mr Boek's part conduct which has unreasonably prolonged the time taken to complete this proceeding.

[17] Had Mr Boek particularised his claims as the Tribunal directed at an early stage, subsequent directions hearings would have been avoided. Alternatively had he withdrawn the surviving claims on the basis that he no longer wished to pursue them and had done this at an earlier stage, further directions hearings would have been unnecessary.

[18] The respondents asked me to take into account a number of other factors. I do not consider that these additional factors would in themselves justify an award of costs in the respondents' favour.

[19] The first factor was that the Equal Opportunity Commission had declined the claim. This is not in my view a factor which would justify an award of costs in favour of the respondents. I do not know why the Commission declined the claim or on what material that decision was based.

[20] Mr Boek had a clear right under the Equal Opportunity Act to have this claim referred to VCAT even though the Commission had declined it. In any event on the strike-out application, although much of the claim was dismissed, some of it survived.

[21] The second factor was that the surviving claim was without substance. It is clear from the Tribunal's decision on the strike-out application that the claims survived because the Tribunal took the view that they were not manifestly hopeless.

[22] The third factor relates to what the respondents say was a Calderbank offer under s.112 of the VCAT Act. Section 112 to 115 in broad terms required the Tribunal to make an order for costs in favour of a party who makes a settlement offer in accordance with the provisions of those sections where that offer is not accepted by the other party and the Tribunal considers that the orders ultimately made in the proceeding are not more favourable than the offer. The whole of these provisions is subject to any contrary order by the Tribunal.

[23] First ss.112 to 115 do not apply to proceedings under the Equal Opportunity Act. (See VCAT Act schedule 1 clause 28). Second although in my view the making and rejection of a Calderbank offer are matters relevant to costs under s.75(2), this is only one of the many factors to be taken into account. It should not automatically result in a costs order against the party who does not accept the offer. After all ss.112 to 115 of the VCAT Act where that automatic position would apply subject to a contrary order does not apply to proceedings under the Equal Opportunity Act.

[24] Here in my view although the Calderbank offer was reasonably made, it was not unreasonable for Mr Boek not to accept it. The offer contained two options. One of these options related not just to this proceeding but to other matters. The other required Mr Boek to accept a regime of medical reporting and medical status reporting where it was the frequency of that reporting which was at the heart of the impairment discrimination claim that still survived. In these circumstances it was not unreasonable of him not to accept the offer.

[25] Against the matters raised by the respondents, I balanced what was raised on Mr Boek's behalf. It was said that his conduct of the proceeding was largely attributable to his lack of legal representation and to the effect on his thought processes of his medical condition and this litigation. It was particularly hard for him, a non-lawyer, to particularise this claim because of its relative complexity.

[26] There is also a suggestion that because of his lack of legal representation, Mr Boek did not seek orders for discovery. As to this I agree with the respondents that discovery at this stage was premature because there was no proper particularisation of the surviving claims. There is also a suggestion that Mr Boek may not have been able to afford legal representation but there is nothing in the material to support this.

[27] In my view the lack of particularisation of the surviving claims was due not so much to a failure to understand what had to be done, but to a wish to continue to pursue the dismissed claims. Taking all of the factors I have mentioned into account, I am of the view that Mr Boek has conducted the proceeding in a way that unnecessarily disadvantaged the respondents and that accordingly there should be an order for costs made in their favour. Those costs should dated from 2 July 2001 which is the date on which particulars of complaint were required to be filed and served.

[28] It is then submitted for Mr Boek that there are in fact no costs to order. It is said for Mr Boek, and the respondents do not deny, that the respondents' legal representative was Mr Riddell, a solicitor with a corporate practising certificate employed by AXA Australia. It said that ACL which is the respondent company, is part of the AXA group and that Mr Capecchi, the other respondent, is one of ACL's employees.

[29] Neither Mr Capecchi nor ACL will be liable to pay for the legal work done by Mr Riddell in connection with this case. It is submitted for Mr Boek that if there is no liability to pay for those legal professional costs, I should make no order for costs in the respondents' favour. (As to this matter generally, see R v. Police Magistrate at Hughenden and Reid Ex parte Cummings (1915) St.R.Qd 147; Russo v. Russo (1953) VR 57 67).

[30] There is nothing in the material before me to indicate that there was an agreement between Mr Riddell and the respondents that in no circumstances will the respondents be liable for costs incurred in relation to the provision of legal services to them in this case. (As to agreements of this kind, see Adams v. London Improved Coach Builders Ltd (1921) 1 KB 495).

[31] While there is no doubt that the purpose of costs is compensatory and that their purpose is not to punish the party against whom they are ordered, and while generally costs are awarded to compensate for expenditure personally incurred by the party to whom they are awarded, there are some occasions where costs have been awarded because a party has received professional legal services even though that party has not paid for, and is not personally liable for them.

[32] An example is where an officer of the Crown such as a Crown solicitor or the Australian Government Solicitor represents a party in a proceeding in which the Crown has an interest. Another example is where a solicitor employed by a statutory authority represents that authority in proceedings that relate to the authority's statutory functions. (See for example Blackall v. Trotter [1969] VicRp 114; (1969) VR 939; Inglis v. Moore & Ors (1979) 25 ALR 453; Cook v. Head and Arneman (1976) 1 NSWLR 176; Ditton v. Gallagher (1992) 110 ACTR 12; Queensland Building Services Authority v. Dajulm QBT 35, a decision dated 20 March 2001; EPA v. Taylor Woodrow (Aust) Pty Ltd (No.2) (1997) NSW LEC 135, a decision dated 10 September 1997. As to the purposes of an award of costs, see Latoudis v. Casey [1990] HCA 59; (1990) 97 ALR 45).

[33] In my view a case such as this where a body corporate's in-house list appears for it and for one of its employees cannot be equated to a case where an individual litigant appears in person or a litigant corporation appears by an agent who does not act as a solicitor - that is, who does not provide professional legal services. Nor can it be equated to a case where a litigant who is a solicitor acts for himself or herself.

[34] In real terms the body corporate and the individual who are represented here and the solicitor who represents them are in positions as far as the provision of legal services is concerned similar to a private solicitor who might act for a client in litigation. The difference is that although costs are incurred - that is, the solicitor provides the professional legal services and is diverted from other work to do this, the respondents are not directly liable for those costs. It is the notional costs of the services that are being compensated for. In this sense it cannot be said that the respondents profit from the litigation because costs are awarded in their favour.

[35] In my view these respondents should not be treated as litigants in person and therefore the principle that litigants in person are not entitled to costs for professional legal services, subject to an exception that concerns solicitors, does not apply. These respondents are entitled to costs in the same way that they would be if they had briefed a private firm of solicitors to act. (As to litigants in person and costs, see generally Cachia v. Hanes [1994] HCA 14; (1994) 120 ALR 385; Guss v. Veenhuizen (No.2) [1976] HCA 57; (1976) 12 ALR 271; Brott v. Almatrah (1998) 2 VR 83).

[36] In my view rather than making an attempt to try to quantify the amount of time and resources spent on this case by the solicitor, an attempt which was made in EPA v. Taylor Woodrow, costs should here be awarded on the ordinary scale. I have, after taking into account the respondents' submissions that I should award a higher scale of costs, awarded costs on the basis of Scale A. The matters which I take into account in doing so are these.

[37] First I take into account that the amount of relief sought is uncertain. Second I take into account that the Equal Opportunity Act is legislation with the social objective of eliminating discrimination and providing redress to its victims. It is in the interests of the objectives of that Act that unrepresented people shall not be deterred from accessing this jurisdiction.

[38] Third I take into account that this complainant has appeared unrepresented in what seems to me to be a relatively complex case. I balance these with the other factors that I have earlier mentioned.