The applicant in this proceeding, Benjamin Close, is a former employee of Woolworths and was a member of the Shop, Distributive and Allied Employees Association (SDA). His employment with Woolworths was terminated in February 2016, and the applicant commenced proceedings in the Fair Work Commission.[1]
On 21 October 2017, the applicant applied to VCAT for an order under the EO Act against SDA Victoria (that is, the Shop, Distributive and Allied Employees Association - Victorian Branch) alleging that SDA Victoria discriminated against him, or authorised or assisted discrimination against him, on the basis of a disability.[3]
On 26 October 2017, Woolworths and State Trustees Limited (which was at that time the applicant's administrator, and acting on his behalf) entered into a release agreement to finalise the applicant's dispute with Woolworths.[4]
On 6 March 2018, VCAT struck out the applicant's proceeding against SDA Victoria, with a right to apply for reinstatement if he ceased to have an administrator appointed under the Guardianship and Administration Act 1986 (Vic).
On 4 September 2019, the applicant applied to reinstate the application. That application was refused by VCAT on 1 October 2020, with the Tribunal finding that all incidents of alleged discrimination did not amount to discriminatory conduct and would not amount to a breach of the EO Act even if proven.[5] On the same date, VCAT refused to reinstate the applicant's case against Woolworths in the same facts and circumstances. [6]
On 8 June 2021, the applicant made another application to VCAT under the EO Act claiming he had been discriminated against in the areas of employment and the provision of goods and services by SDA on the basis of the protected attribute of disability.
On 29 June 2021, the principal registrar rejected the application under section 71 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) on the basis that the matter had already been heard and determined in a previous application made by the applicant against the same respondent about the same facts and circumstances, in which final orders and decisions had been provided on 1 October 2020.[7]
The applicant applied for a review of the rejection under section 71(2) of the VCAT Act. A review of the rejection decision was held on 27 July 2021, at which the applicant submitted that the application was different from the application which had already been heard and determined, because the respondent is a different entity. He submitted that the respondent in H222/2017 was SDA Victoria, and the respondent in the present application is SDA, which is a national entity.
VCAT ordered that the hearing of the application under section 71(7) be adjourned to a date to be scheduled, directed the principal registrar to notify the respondent, and required the respondent to attend the hearing.
VCAT heard that matter on 9 September 2021 and Senior Member Steele made orders and provided reasons on 18 October 2021. Relevantly, Senior Member Steele found that while the application in the present proceeding concerns the same respondent and the same issues as those in Close v SDA Victoria, this did not affect the applicant's entitlement to make the application, even though the application appeared to be an abuse of process and likely to be dismissed if it was considered under section 75 of the VCAT Act.[8]
By VCAT's own motion it was proposed that VCAT would make a decision about the application of section 75 without further hearing, after the parties had made written submissions.
The applicant requested that the matter proceed to a hearing.
On 1 November 2021 the respondent provided written submissions about whether the application should be dismissed under section 75 of the VCAT Act. The applicant did not make written submissions.
I heard the application (that is, the application for summary dismissal under section 75 of the VCAT Act) on 12 May 2022, after which I dismissed the applicant's claims. In my written reasons for that decision I recorded that:
the Victorian branch of SDA is not a separate entity from SDA and therefore the proceeding brought by the applicant concerned the same dispute against the same respondent as the proceeding in Close v SDA Victoria (H222/2017);
I did not accept the applicant's submissions that the orders of VCAT in earlier proceeding were not made in accordance with law and therefore do not, in effect, exist;
I did not accept the applicant's submissions that the respondent's solicitors did not have authority to represent them, as that authority was conferred by orders of Senior Member Steele in Close v SDA[2021] VCAT 1189;
I accepted the respondent's submission that the attempt to relitigate matters the subject of an earlier proceeding amounts to an abuse of process for the purposes of section 75(1)(b) of the VCAT Act; and
I determined the applicant's claims in the proceeding to be misconceived and an abuse of process.[8]
[3]
The respondent has applied to VCAT for an order under section 75(2) of the VCAT Act to compensate it for costs, expenses and inconvenience suffered as a result of the applicant's application of 8 June 2021.
The respondent has provided written submissions in support of the proposed order for costs, and those submissions are accompanied by the statement of Imogen Szumer, solicitor for the respondent, attesting to the quantum and itemisation of the fees incurred by the respondent in the proceeding, together with copies of relevant invoices which have been paid or will be required to be paid by the respondent. The legal fees incurred by the respondent in the proceeding total $19,960.21.
The applicant has submitted that costs ought not be awarded. He has sent a number of emails about this and other matters, and which indicate that he does not accept the outcome of the proceedings he has brought at VCAT.
The applicant's email correspondence reiterates the applicant's view that Maurice Blackburn Lawyers did not have proper authority to represent the respondent, and therefore that the section 75 application for summary dismissal of his complaint was never properly litigated, and so his conduct could not be deemed vexatious or an abuse of process because 'no case has ever been heard'.[9] He says that the matter must proceed to further litigation, and that he demands the right to have his case heard. He also says that he was not 'legally at the hearing' due to illness. [10] He makes allegations of bias, and requests an appeal, and a re-hearing, although also claiming that 'the issues have never been heard'.[11] He demands the resignation of some people who he names.[12]
The applicant's emails also say that any award of costs would cause him financial hardship because he is unemployed.
[4]
While VCAT's jurisdiction to award compensation subsequent to an order having been made pursuant to section 75(1) arises from section 75(2) of the VCAT Act, the approach the Tribunal has taken has been to consider exercising its discretion in accordance with the principles that have been established in relation to the general costs provisions contained in section 109 of the Act.
Section 75(2) provides:
[5]
75 Summary dismissal of unjustified proceedings
...
(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
[6]
109 Power to award costs
(1) Subject to this Division, each party is to bear their own costs in the proceeding.
(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -
(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii) asking for an adjournment as a result of (i) or (ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the Tribunal;
(vi) vexatiously conducting the proceeding;
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d) the nature and complexity of the proceeding;
(e) any other matter the Tribunal considers relevant.
[7]
Relevantly, section 75(2) is distinguished from section 109 because it is couched in terms of compensation 'by way of costs, expenses, loss, inconvenience or embarrassment'.
The power to award compensation under section 75(2) has been variously described in VCAT proceedings as follows:
[8]
Section 75(2) operates independently of s.109, and is broader that the power to award costs under s.109. It does not operate from a starting presumption that each party ordinarily bear their own costs but, equally, it does not create a presumption that costs should automatically follow the event. There is a general discretion, which should be exercised having regard to the particular circumstances of the proceeding.[13]
....the Tribunal's discretion under s.75(2) is unfettered. Whilst, in deciding whether to exercise its discretion the Tribunal might be assisted by matters similar to those set out in s.109(3) it is not required to consider those specific matters.[14]
In my view ss 75(2) and s 109 can be read together and when so read they disclose a coherent and sensible scheme. Subsection 75(2) makes specific provision for an award of compensation in circumstances where a dismissal or strike out application is successful, because absent such a provision the power to award costs would be in doubt. The scope of an award of compensation is broader that the costs which may be ordered under s.109 in order to discourage unmeritorious claims.[15]
[9]
In the case of Maddingly Brown Coal Pty Ltd v Moorabool SC[2020] VCAT 908, Justice Quigley observed (at [9]) that VCAT's jurisdiction to award costs, consequent to an order having been made under section 75(1), arises from section 75(2). Her Honour observed there ought to be recognition that the costs circumstances in the case at hand arose from a section 75(1) determination, not an application for costs under section 109. Her Honour stated that there is an important distinction to be made between section75(2), which is couched in terms of compensation 'by way of costs, expenses, loss, inconvenience or embarrassment' and section 109 which is only a costs provision [at [10], [15]), and that, while the discretion in section 109 is broad, the discretion to award cost under section 75(2) is wider (at [13], [15]).
I agree with these observations and, taking them into account, I am of the view that a consideration of the history of the present proceeding, and the applicant's conduct throughout it, weighs in favour of an award of costs against him.
The applicant has been pursuing claims, largely unsuccessfully, against his former employer Woolworths and the union of which he was once a member, the SDA, since 2016. The chronology of these claims is set out in paragraphs 1 to 14 above.
In the present case I found the applicant's complaint against the respondent to be obviously unsustainable in fact or law, and the proceedings he brought to be misconceived and an abuse of process by the applicant. It was a duplicate proceeding, and the applicant had been put on notice of this, most specifically by the reasons provided in the decision of Senior Member Steele in Close v Woolworths[2020] VCAT 1075.
Relevantly, when VCAT refused on 1 October 2020, to reinstate the first matter filed by the applicant against the SDA, the refusal was for reason that, even if the applicant could establish all of the matters he alleged in his application, those matters would not amount to unlawful discrimination under the EO Act.[16] At the hearing of that matter, the applicant had only sought to distinguish the matter from the previous matter on the basis that the respondent was different from that in the first application he had filed, a submission which was rejected. He did not attempt to distinguish the application on the basis that it was factually different from the first.
Despite the unsuccessful outcome of his application for reinstatement of the matter, the applicant pursued an application which VCAT had already determined could not succeed. The applicant was therefore on notice that his claim was untenable and could not succeed when he lodged his second application.
Subsequently, on 18 October 2021, Senior Member Steele made findings that the application made by the applicant was made against the same respondent as in Close v SDA Victoria, and that his application appeared to be an abuse of process and likely to be dismissed under section 75 of the VCAT Act.[17] Senior Member Steele proposed to determine whether the application should be dismissed or struck out under section 75 subject to the parties' written submissions, without the need for a further hearing, unless either party objected.
The applicant did not discontinue the proceeding. Nor did he make any written submissions in response to the respondent's submissions provided pursuant to the orders of Senior Member Steele. Rather, he wrote to VCAT to insist that the matter proceed to a hearing.[18]
At that hearing the applicant made quite brief oral submissions that were not cogent, but which indicated a refusal to accept the outcome of previous VCAT proceedings which he considers not to be 'legal'.
It is apparent that the applicant, in his conduct of these proceedings, has caused significant costs to the respondent in the pursuit of a claim that that was bound to fail, and which the applicant had been put on notice was bound to fail.
Accordingly, I am satisfied that this is a matter where it is appropriate to order the applicant to compensate the respondent for some of their legal costs of the proceeding.
[10]
Although the respondent's legal costs in this proceeding amounted to $19,960.21,[19] in the exercise of my discretion under section 75(2), I consider it appropriate to confine the payment of compensation to that part of the proceeding which took place after the decision of Senior Member Steele on 18 October 2021, at which time the applicant was clearly on notice (had he not been at an early time) that not only did his claim against SDA have no prospect of success, but was further likely to be misconceived and an abuse of process.[20]
The respondent has itemised the costs incurred in the proceeding from the date of 18 October 2021 onwards, including the costs of applying for an order under section 75(2) as being $9,893.53.[21] I consider this to be an appropriate sum for the applicant to pay in compensation under the provisions of section 75(2) of the VCAT Act.
VCAT orders that a fixed amount be paid rather than costs assessed according to scale because, having regard to the amount claimed, it would be unfair for the respondent to be subject to further costs associated with assessment and taxation.