Application by Complainant and Second Respondent and VPPA refused

SECOND RESPONDENT and VICTORIAN PRIMARY PRINCIPALS ASSOCIATION

2. The applications for costs by each party against the others all fail.

3. The application by Victorian Primary Principals Association against the Complainant fails.

On 9th June 1999 the Tribunal handed down a decision granting to the Complainant an award of $35,000.00 general damages and $20,000.00 aggravated damages in respect of contraventions of the Act by both Respondents. The Complainant's application for payment of costs as damages failed. The Order included provision for submissions on question of costs to be made by the parties.

Substantial submissions were made by the Complainant seeking costs against both Respondents, and by the Second Respondent seeking costs against the Complainant. Also the Victorian Primary Principals' Association ("VPPA") sought costs against the Complainant. In the Complainant's Particulars of Complaint she had sought to join the VPPA as a third party. That application had been refused by the Tribunal, reserving any question of costs.

The relevant provisions of the Equal Opportunity Act 1984 that apply in this matter are as follows:

(1) In any inquiry or proceeding before the Board, the Board may order the payment of costs fixed by the Board.

(2) In making an order under this section, the Board must, unless there are special circumstances, fix a sum which reflects the costs reasonably incurred by the person in favour of whom the order is made and any other pecuniary loss incurred by that person because of the proceedings.

(3) if the Board makes an order as to costs, the person to whom payment is to be made under the order may enforce the order by filing free of charge in the Magistrates' Court or the County Court or the Supreme Court-

(a) a copy of the order certified by the Registrar to be a true copy; and

(b) that person's affidavit as to the amount remaining unpaid under the order-

and on the filing of those documents an order is deemed to have been made by the Magistrates' Court or the County Court or the Supreme Court (as the case requires) requiring the payment of the sum mentioned in the affidavit as being unpaid and may be enforced accordingly.

The relevant provisions of the Equal Opportunity Act 1995 that apply in this matter are as follows:

After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may- -

(a) find the complaint or any part of it proven and make any one or more of the following orders-

(i) an order that the Respondent refrain from committing any further contravention

(ii) an order that the Respondent pay to the Complainant within a specified period an amount the Tribunal thinks fit to compensate the Complainant for loss, damage or injury suffered in consequence of the con;

(iii) an order that the Respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the Complainant as a result of the contravention or;

(b) find the complaint or any part of it proven but decline to take any further action in the matter; or

(c) find the complaint or any part of it not proven and make an order that the complaint or part of it be dismissed.

(1) The Tribunal may order the payment of costs fixed by the Tribunal in any proceedings before the Tribunal.

(2) In making an order for costs, the Tribunal, unless there are special circumstances, must fix a sum that reflects-

(a) the costs reasonably incurred by the person in whose favour the order for costs is made; and

(b) any other pecuniary loss incurred by that person because of the proceedings.

(3) The Tribunal may order that bills of costs be taxed or settled by the Registrar.

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings before it.

142. Tribunal is not bound by the rules of evidence

(1) Except to the extent it determines, the Tribunal is not bound by the rules of evidence or by practices and procedures applicable to courts of record.

(2) Without limiting the generality of sub-section (1), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement prescribed by the regulations in relation to that document or service of it.

The relevant provisions of the Victorian Civil and Administrative Tribunal Act 1998 that apply in this matter are as follows:

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(2) Without limiting sub-section (1)(b), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

(4) Sub-section (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.

(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 sub-section (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);

(v) attempting to deceive another party or the Tribunal;

(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;

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding".

The relevant provision of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 is as follows:

(1) if immediately before the commencement day a proceeding in relation to a Tribunal matter was pending before a former Tribunal but the former Tribunal had not begun to hear that proceeding or had begun to hear to hear it but had not been given evidence on any material question of fact, the proceeding is to be heard and determined by the new Tribunal and for that purpose-

(a) the proceeding is to be taken to have been commenced in the new Tribunal; and

(b) anything done in relation to that proceeding by the former Tribunal before the commencement day is deemed to have been done by the new Tribunal; and

(c) the procedure that applies to the proceeding on and after the commencement day is the procedure prescribed by the VCAT Act and the rules made under it in relation to hat class of proceedings; and

(d) anything done or omitted to be done in relation to the proceeding by a party or any other person before the commencement day under or in accordance with the procedure applied before that day must be taken, so far as possible, to have been done or omitted under or in accordance with the procedure applying on and after that day; and

(e) the new Tribunal has only the powers, functions and duties which the former Tribunal would have had in relation to the proceeding under the enabling enactment and the Act by which the former Tribunal was established had the commencement day not arrived; and

(f) any order made by the new Tribunal may only be appealed against in accordance with Part 5 of the VCAT Act.

(2) if immediately before the commencement day a proceeding in relation to a Tribunal matter was pending before a former Tribunal and the former Tribunal had begun to hear that proceeding and had been given evidence on any material question of fact, the proceeding is to be heard and determined by the new Tribunal and for that purpose-\

(a) the proceeding is to be taken to have been commenced in the new Tribunal; and

(b) anything done in relation to the proceeding by the former Tribunal before the commencement day is deemed to have been done by the new Tribunal; and

(c) the member or members who constituted the former Tribunal, if available, shall constitute the new Tribunal subject to any reconstitution under section 108 of the VCAT Act; and

(d) the new Tribunal may have regard to any record of the proceeding in the former Tribunal, including a record of any evidence taken in the proceeding; and

(e) the procedure that applies to the proceeding on and after the commencement day is the procedure that would have applied had the former Tribunal continued to hear it and the commencement day not arrived; and

(f) the new Tribunal had only the powers, functions and duties which the former Tribunal would have had in relation to he proceeding under the enabling enactment and the Act by which the former Tribunal was established had the commencement day not arrived; and

(g) any order made by the new Tribunal may only be appealed against in accordance with Part 5 of the VCAT Act.

In its decision the Tribunal referred to section 109 of the Victorian Civil & Administrative Tribunal Act (VCAT) 1998 as being now the operative provision dealing with the power to award costs. Counsel for the First Respondent submitted that Tanglemeyer v FAI Workers Compensation (Vic) Pty Ltd, (McKenzie DP 16 December 1998) was authority for the proposition that Section 136 of the Equal Opportunity Act 1995 was the operative provision, but conceded that it would make no practical difference in this case whether the question of costs was dealt with under section 109 of VCAT or section 136 Equal Opportunity Act 1995. In fact, the correct reference would appear to be to section 138 of the Equal Opportunity Act.

Dr Scutt submitted that the relevant statutory provision was s.138 of the Equal Opportunity Act 1995 but also conceded that the ultimate practical effect in this case was the same as if s.109 of the VCAT Act applied.

The VCAT Act commenced on the 1st July 1998 and applied to a number of pre-existing Tribunals, including the Anti-Discrimination Tribunal. There was initially some controversy as to the correct interpretation of the transitional provisions in the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act. Clause 9 of Schedule 2 of that Act dealt with pending proceedings and the "procedure" to apply. "Proceeding" was not defined. Tanglemayer v. FAI is now accepted as authority that "the effect of Clause 9(2)(e) is that the "procedure" applying to a proceeding falling under that sub-clause on or after 1st July 1998 is "the procedure that would have applied" had the former Tribunal continued to hear the matter and had 1st July 1998 not arrived." In the present case evidence was heard before 1st July 1998 so Clause 9(2) and not Clause 9(1) applies.

Under Clause 9(2) VCAT only has the powers given under the Equal Opportunity Act 1995. Section 138 of that Act applies to costs in applications in respect of acts occurring after 1st January 1996, and section 47 of the Equal Opportunity Act 1984 applies regarding acts occurring before 1st January 1996.

Ms Gray's application did include a few complaints in respect of acts said to have occurred prior to 1st January 1996 and section 47 of the Equal Opportunity Act 1984 is the relevant costs provision. In Spencer v. Dowling [1996] VSC 51; (1997) 2 VR 127 the Court of Appeal held that orders for costs are not made as of course on an indemnity basis. This Tribunal in Rabel v. Eastern Energy Limited (No.36 of 1991, unreported 18.11.1999) said "the word "may" in s.47 (1) is permissive and the Tribunal has an unfettered discretion to award costs." In Tanglemayer (op. cit) the Tribunal referred to a number of decisions where the Victorian Supreme Court, VCAT and the Anti-Discrimination Tribunal have considered the Tribunal's power to award costs under s.47 of the 1984 Act and s.138 of the 1995 Act, and concluded that those decisions were authority for the following propositions:

1. "It is inappropriate in relation to the jurisdiction conferred by the Equal Opportunity Act 1995 to observe an automatic rule that costs should follow the event. To do so might detract from the clear conciliation focus of the Act by encouraging parties to proceed to hearing in the hope of being indemnified for their costs, rather than resolving the matter by conciliation. It may also undermine the objective of the Act to provide redress for the victims of sexual harassment or discrimination, by deterring them from accessing the jurisdiction, for fear that, if they lost, costs might be awarded against them. This approach to costs is consistent with legislation under which the Anti-Discrimination Tribunal was required to act fairly and according to the substantial merits of the case and was not bound by rules of evidence or court practice( Equal Opportunity Act 1995 s.141 and 142; now see VCAT Act s.98).

2. The Tribunal has a clear discretion as to the award of costs and, if the parties seeking costs can point to circumstances (apart from the fact of having won) to justify the award, it may award them. Examples of situations where the Tribunal has awarded costs include where a party has instituted or pursued a claim in which he or she could not have genuinely believed or which on no reasonable belief could have any prospect of success, or where a party has continued to make a claim that was clearly untenable. The Tribunal has also awarded costs in situations where a party's conduct in relation to proceedings has been unreasonable. (Examples of cases where it had been said that costs might be awarded are akin to the matters now listed in s.109(3) of the 1998 VCAT Act, to be taken into consideration by the Tribunal in exercising its discretion under 2.109(2) to order costs. The starting point is set out in s.109(1), i.e. that each party bears their own costs.

Existing authority requires this Tribunal to decide these applications according to the Equal Opportunity Act but in our view the outcome would be the same whether we applied s.47 of the Equal Opportunity Act 1984, s.138 Equal Opportunity Act 1995 or s.109 VCAT Act, in exercising our discretion regarding the costs application. This approach was adopted by the Tribunal in Alison Thorne v. The Council of the Northern Melbourne Institute of TAFE (unreported decision 24.11.99, No.91 of 1998): "because the approach previously taken by the Tribunal and the considerations that have been viewed as relevant circumstances in deciding whether to award costs under s.138 of the Equal Opportunity Act is similar to the approach and considerations spelt out in s.109 of the VCAT Act," the Tribunal considered each of the matters relied on by the Respondent in determining whether a costs order should be made.

Section 109(2) provides that "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". Section 109(3) restricts the power to make an order under sub-section 2 only where the Tribunal is satisfied that it is fair to do so, having regard to a number of factors listed in that section.

The factors argued by each party in their submission were that the other parties had "been responsible for prolonging unreasonably the time taken to complete the proceeding"; or because of the nature and complexity of the proceeding, or that another party had unnecessarily made it so. Both Respondents asked the Tribunal to apply the principles in Cutts v Head (1984) Ch.290 to refuse or reduce the Complainant's costs for refusing settlement offers. The Counsel for Second Respondent submitted that his client should be paid costs by the Complainant on the basis that Calderbank & Calderbank (1975 3 All ER 333) applied. She had been put on notice that if she received less than the settlement amount offered then the Second Respondent would seek his costs.

The amount of damages which the Second Respondent was ordered to pay the Complainant was less than the monetary amounts he offered, but the total damages awarded exceeded the total offers from both Respondents.

Complainant's Counsel submitted that she made it clear during the settlement negotiations with both parties that the issue was more importantly that she sought a safe workplace and that the complained of conduct of the Second Respondent should cease. No offers put forward by the First Respondent at any time addressed her requirement for the provision of a safe workplace.

The Tribunal finds that the cases of Calderbank and Cutts v Head are inapplicable in principle in the present case, because they dealt only with monetary issues. In this respect the Tribunal refers to the decision of Khorram v John Willams Aloi Computer Product (Australia) Pty Ltd (unreported No.39 of 1995 VCAT Anti Discrimination List 5 February 1999) where the Respondent applied for costs based on Cutts v Head, but the Tribunal did not award costs. In that case the Tribunal accepted that there may be circumstances when it could be said that an award for costs would be appropriate because it was not reasonable to reject the offer because the offer was more beneficial to the recipient than the outcome of the proceedings, but did not consider that the principle should be applied in that particular case. It pointed out that one thing which the Complainant sought in this jurisdiction was a finding of discrimination - that is, public vindication. The Tribunal said "there are difficulties importing such a practice into this jurisdiction. A remedy sought in a claim alleging unlawful discrimination is not simply money but also vindication, and public recognition that discriminatory conduct has occurred. Sometimes an apology is ordered. These aspects have a real value that is impossible to quantify in monetary terms. Further, anti discrimination legislation has a number of objectives, one of which is to prevent acts of discrimination and increase public awareness of the evils of discrimination. This object would not be furthered by encouraging settlements which involve a denial of discriminatory conduct which has in fact occurred and the concealment of that conduct behind a veil of confidentiality." The Tribunal found that the failure of the Complainant to accept the offer was not so unreasonable that he should pay the Respondent's costs. Applying that test in this case, the Tribunal would not find Complainant's refusal to accept the offer unreasonable, as it did not resolve some of the major issues. The Second Respondent's application on this ground fails.

All parties claimed that the others conducted the case in a manner which unreasonably prolonged the time taken to complete the proceeding: and at the same time claimed that they themselves had taken particular steps (for example for shortening or minimising cross examination) in a positive attempt to shorten the hearing.

The Complainant's claim was based on some 33 alleged instances of sexual harassment and discrimination by the Second Respondent, and 16 instances of victimisation by him for which she claimed the First Respondent was vicariously liable and a total of 22 claims of direct victimisation by it. The Tribunal found both Respondents had contravened the Act as a result of which reasonably substantial damages were awarded. Although some allegations were found not proven (not "dismissed" as submitted by the First Respondent), the fundamental outcome was that there had been a number of breaches of the Act by both Respondents.

The First Respondent was ordered to pay aggravated damages because the First Respondent did not properly or promptly investigate a complaint of sexual harassment. This caused the Complainant to continue to suffer stress in contesting long and hard fought cases before this Tribunal and the Workcover Authority to establish her claims. The Complainant submitted that these were matters which ought to be taken into account by the Tribunal in awarding costs to her. The First Respondent objected, submitting that aggravated damages had already been awarded for those matters and they could not be relied upon again to assist the Complainant in respect of costs. The Tribunal agrees.

Overall, the Tribunal cannot be satisfied that it is fair to make an order against any party to pay the costs of another party in this proceeding. It was fought hard and long by all parties. All parties on occasions behaved in a manner which prolonged the hearing beyond what the Tribunal would have hoped and gave evidence or cross examined on relatively unimportant or insignificant matters. On balance it would be difficult to try and apportion degrees of blame, and consequently not fair to make any costs order. The Tribunal finds that they should lie where they fall.

We turn now to the application on behalf of VPPA. During the course of the proceedings the Tribunal heard evidence from other school principals who referred to the involvement of the VPPA in representing Mr Pettman regarding Ms Gray's complaints against him. In light of evidence which indicated the involvement of the Victorian Primary Principals' Association in support of the Second Respondent, the Tribunal does not consider that the Complainant behaved unreasonably in seeking to join the Victorian Primary Principals' Association as a third party. It does not find the Complainant behaved in a negligent or dilatory manner and accordingly makes no order against the Complainant in relation to the costs of the VPPA.