Victorian Civil and Administrative Tribunal|2001-09-07

Fernandez v Amatek Pty Ltd [2001] VCAT 1979 (7 September 2001)

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

Medium Neutral Citation [2001] VCAT 1979

Pursuant to Section 74 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders -

1. That the Complainant must pay the costs incurred by the Respondent on and after 2 April 2001up to and including 20 April 2001 in relation to proceeding number A389/2000.

2. That the Complainant must pay 40% of the Respondent's costs in relation to the Respondent's application for costs.

3. The costs referred to in paragraphs 1 and 2 are on a party/party basis and are 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 between the parties or, in default of agreement, at a time fixed by the Principal Registrar.

[1] My order is basically that the complainant pays the costs incurred by the respondent from 2 to 20 April 2001 inclusive and 40 per cent of the respondent's costs in connection with the costs application itself. Those costs have been assessed on scale A and the order makes ancillary provision for that matter.

Mr Fernandez withdrew his complaint, four days before this matter was to be heard. The respondent, which I call Amatek, now applies for its costs in relation to the whole proceeding and in relation to its costs application.

[3] The application is made under ss.74, 78 and 109 of the Victorian Civil and Administrative Tribunal Act 1998, which I call the VCAT Act. I have written and oral submissions from the parties on this application. Mr Fernandez and Mr Sturgess, a partner with McPherson Kelly who are the respondent's solicitors, gave evidence.

[4] I have also taken account of the complaint, the particulars of complaint and defence and the other material on the Tribunal's file. I first briefly mention the provisions under which the application is made. I then say something about the history of the proceeding, finally I deal with the party's submissions.

[5] Under clause 21 of schedule 1 of the VCAT Act, a complainant can withdraw a complaint without first having to obtain the Tribunal's leave. Applications and referrals, that is referral of complaints, under the Equal Opportunity Act 1995 which I call the Equal Opportunity Act, are treated differently from other VCAT proceedings in the sense that the Tribunal's leave is required before any other proceeding can be withdrawn but it is not required before an application or referral under the Equal Opportunity Act can be withdrawn.

[6] As I said in Asgari v. SBS Radio, a decision dated 27 August 2001, this simple method of withdrawal of a complaint under the Equal Opportunity Act is consistent with the focus of the Equal Opportunity Act on conciliation and with the simple methods of making a claim of breach of that Act which that Act establishes. Under s.74(2)(b) the Tribunal may order the applicant to pay all or any part of the costs of the other parties to a proceeding which is withdrawn.

[7] In Asgari I said that this power to award costs is differently expressed from s.109 of the VCAT Act which contains VCAT's general power to award costs. The effect of s.109 is that each party bears his or her own costs unless the Tribunal, after considering a number of listed factors, considers it fair to order otherwise. I said in Asgari that s.74(2)(b) is not a provision like this. It gives the Tribunal broad and unfettered discretion as to costs on the withdrawal of the proceeding.

[8] I also said that one of the implications from the broad and unfettered discretion conferred is that there ought be no automatic rule that costs should always or generally be awarded against the withdrawing applicant. I suggested that the non application of such an automatic rule is in the Tribunal's equal opportunity jurisdiction, also consistent with the conciliation focus of the Equal Opportunity Act and its character as legislation with a social rather than a commercial objective and also with the principle that people should not be deterred from accessing that jurisdiction by fear that if they withdraw their complaints they will automatically have to pay costs to the respondents.

[9] However, the circumstances of a particular case may justify an award of costs. Circumstances which have been held to justify awards of costs have occurred on a number of occasions. The circumstances include, but are not limited to, the matters listed in s.109(3) and s.78(1) of the VCAT Act. Examples are that the applicant has conducted the proceeding in a way that unnecessarily disadvantages the respondent; for example by breaching Tribunal direction or vexatiously conducting the proceeding, or has made a claim with no tenable basis.

[10] I now briefly refer to the relevant history of this proceeding. After this complaint was referred to VCAT, the respondent whom I call Amatek, applied to VCAT to have the complaint struck out or dismissed. That application was unsuccessful except for one paragraph of the particulars of complaint. The particulars, I should say, comprised more than 50 paragraphs.

[11] Directions were made on 22 January 2001 setting a timetable for the future course of the proceeding. The hearing was fixed for 24 April 2001. A mediation occurred on 20 February 2001. That mediation was unsuccessful. By letter dated 13 March 2001 Amatek made a settlement offer expressed to be open for seven days. Mr Fernandez did not respond to that offer within that seven-day period.

[12] Until receipt of that letter of offer, Mr Fernandez had not known that Amatek was represented by a lawyer. Before that the parties had not been represented by lawyers. The Tribunal's timetable set 5 March 2001 as the date for the filing and service of the complainant's witness statements. On that date Mr Fernandez filed his own witness statement but no others. That witness statement referred to other witnesses he intended to summons but the evidence of those witnesses, either by way of outline or witness statements, were not included.

[13] From the time he received the letter of offer, Mr Fernandez began to seek legal representation. He went to at least four firms of solicitors. He did not retain any of these as lawyers except Ambi Associates and I will refer to them later. Mr Fernandez said that the reason why he did not retain the other solicitors he consulted was because their costs were too high although he never said definitively that he could not afford those costs and also that he was told by them that they would need to postpone the hearing date so they would have adequate time to consider the file.

[14] It is submitted for Amatek that I should infer from Mr Fernandez's evidence that his solicitors in fact told him that his case was hopeless. I am not prepared to do this.

[15] By letter dated 2 April 2001 Mr Fernandez requested the Tribunal for an adjournment of the hearing for some months. In his letter he refers to the solicitors he has contacted and that he has been told that time was needed to consider his file.

[16] By this time, according to the Tribunal's original timetable, Amatek had in fact filed its witness statements. Mr Fernandez did not notify Amatek that he had requested an adjournment. On 3 April 2001 the Tribunal in chambers refused his request. On 9 April 2001, in accordance with the Tribunal's timetable, Mr Fernandez filed and served a second witness statement by way of answer to the respondent's witness statements.

[17] On 18 April 2001 Mr Fernandez requested the Tribunal to issue various witness summonses. On 20 April 2001 Mr Fernandez wrote to the Tribunal requesting it to dismiss his complaint without an order for costs. The Tribunal marked the complaint as withdrawn and gave to Amatek liberty to apply for costs. Amatek has now done this.

[18] It seems that by mid April 2001 Mr Fernandez had discussions with a firm of solicitors, Ambi Associates. In the four days from 17 to 20 April 2001 that firm made approximately seven phone calls to the respondent's solicitors, McPherson and Kelly, first discussing settlement and then discussing the course of the hearing including the number of witnesses to be called.

[19] Mr Fernandez gave evidence that he did not instruct Ambi Associates to take these steps. I find this evidence unconvincing. I am not satisfied that Ambi Associates did what they did contrary to Mr Fernandez's instructions.

[21] It first submits that Mr Fernandez has made a baseless claim which justifies an award of costs against him and in Amatek's favour. It says that I should also take into account the strength of Amatek's case as shown from its witness statements. It says that I should take into account the fact that the complainant's case is not supported by any independent witness. It says in support of its arguments that the Commission declined the complaint because it lacked substance and because it was more than 12 months old.

[22] In my view this submission does not justify an award of costs against Mr Fernandez. The fact that the Commission declined his complaint as s.108 of the Equal Opportunity Act permits it to do, is not a conclusive indication that the complaint is baseless. I do not have before me the Commission's reasons for that decision. I do not know of what material he based that decision. In any event, the complainant has a right to request referral of a declined complaint to VCAT. There has been a strike out application before VCAT which was almost entirely unsuccessful.

[23] The witness statements of the parties show little more than that almost every matter alleged by Mr Fernandez is contradicted or disputed by Amatek. In these circumstances I am not prepared to infer that the lack of independent witnesses from the complainant's side means that his case is baseless. The lack of independent witness statements is more likely to be due, in my opinion to the fact that as unrepresented person, Mr Fernandez had very little idea of what material was necessary to present to support his case at hearing.

[24] I also bear in mind that the makers of the witness statements have not given oral evidence, nor has their evidence been tested.

[25] Amatek next submits that costs in its favour are justified because Mr Fernandez commenced or continued this proceeding for an improper purpose. That purpose is to harass and annoy Amatek and to put it to unnecessary expense and inconvenience and to disrupt its business.

[26] In my view there is nothing in the material before me to support this submission. It seems to me that Mr Fernandez genuinely believes that he has been discriminated against by Amatek and seeks redress for what he believes to be a breach of the Equal Opportunity Act.

[27] Amatek next says that Mr Fernandez should have costs awarded against him because he unreasonably rejected its settlement offer of 13 March 2001. I do not agree.

[28] In my view that offer was reasonably made but was not unreasonably rejected.

[29] Finally, Amatek seeks costs for what it says was Mr Fernandez's unreasonable conduct of this proceeding and because Mr Fernandez is said to have unnecessarily disadvantaged Amatek by conducting the proceeding in the way he did. In my view Mr Fernandez's conduct of this proceeding has been unreasonable by not notifying Amatek that he requested an adjournment on 2 April 2001 and then by allowing his own solicitors to discuss the way the case would be conducted at hearing with Amatek's solicitors, Mr Fernandez gave the impression to Amatek and its solicitors that the hearing would run. In fact he was already seeking an adjournment on 2 April. If Amatek had known this it may have delayed its preparation for the hearing.

[30] This is sufficient to justify an award of costs in Amatek's favour from 2 April 2001 to the date of withdrawal of the proceeding. Amatek should also be awarded a proportion of its own costs in relation to the making of this costs application. Taking into account that Amatek has not been wholly successful in that application, it is my view that it should be awarded 40 per cent of its costs in that aspect.

[31] It is unclear from the complaints material what the amount of the claim is. I note that in his particulars of complaint he claims lost wages from June 1987 and also damages for harassment and bullying. But the amount is not quantified. On the material I consider it unlikely that the amount of this claim would take it out of the range of scale A of the County Court scale. In my view that is the appropriate scale on which costs should be awarded. That concludes my reasons for decision.

Civil and Administrative Tribunal Act 1998

Opportunity Act 1995

Fernandez v Amatek Pty Ltd [2001] VCAT 1979

At a glance

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Decision date

Source

Judgment (37 paragraphs)

Fernandez v Amatek Pty Ltd [2001] VCAT 1979 (7 September 2001)

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Legislation Cited (2)