I now turn to the matter of costs in relation to the hearing of the complaint. The Club applies for costs in relation to this hearing. It says that having regard to a number of the factors in s.109(3) I should conclude that it is fair to make this order. The first factor on which it relies is that Mr Jamieson's complaint was wholly untenable and at least after the respondent's witness statements were served on the complainant on 2 August 2000, the complainant ought to have realised this and discontinued the claim. I do not agree.

There were a number of internal inconsistencies in the witness statements of the major witnesses in this case including both witnesses for the respondent and the complainant himself. Some of the oral evidence given was inconsistent with the witness statements. The Tribunal commented on these inconsistencies in its reasons for decision on the complaint.

Given this, in my view it is not possible to say that the claim was so clearly untenable even after the respondent's witness statements had been served that it should not have been pursued. Because of the many factual disputes it was not possible at that time to predict with certainty what the findings of the Tribunal would be.

The Club then relies on what it says was Mr Jamieson's unreasonable rejection of its Calderbank offer as justifying an award of costs in its favour. Sections 112-115 of the VCAT Act provide a scheme under which unless the Tribunal orders otherwise, a party who makes then offer to settle in accordance with those provisions that is rejected by the other party is entitled to be paid by the other party all its costs incurred after the making of the offer if the Tribunal makes an order in the proceeding that is not more favourable than the offer.

This scheme does not apply to proceedings under the Equal Opportunity Act, see VCAT Act, Schedule 1, Clause 28. In my view this does not, however, mean that on a complaint hearing such as this the Tribunal cannot take into account the making of an offer to settle as a relevant factor in considering whether it is fair to order costs. What it does mean is that the Tribunal cannot treat this as a ground for a rule that costs must, automatically, be awarded if that offer is rejected unless it is satisfied that there is some reason to justify the non application of such an automatic rule.

The making and rejection of a settlement offer is one, but only one, of the relevant factors that the Tribunal must take into account in determining whether an award of costs would be fair and so whether the position set out in s.109(1), that is that costs lie where they fall, should not apply.

The Club then submits that Mr Jamieson unreasonably rejected its offer to settle. And that accordingly it is fair to award costs in its favour. The position in which the offer was made was this. By correspondence dated 9 August 2000 the Club solicitor wrote to Mr Jamieson's solicitor offering on a without prejudice basis save as to costs to settle the matter on the basis that the parties would bear their own costs and that the complainant will waive his right to costs against the Club arising from Master Wheeler's order made on 22 February 2000 and would withdraw the claim.

The offer was expressed to be open for seven days. The complainant rejected the offer. The offer was made again on 24 August 2000. This time it was open for a day until close of business on 25 August. Mr Jamieson was put on notice that the Club would apply for costs at hearing. It is submitted for Mr Jamieson that the offer was not reasonably made and was not unreasonably rejected and that in these circumstances it would not be fair to award costs in favour to the Club.

In my view it was not unreasonable of Mr Jamieson to reject the offer. I am not prepared to say that the offer was unreasonably made. First there had already been an unsuccessful strike-out application and an unsuccessful application for leave to appeal by the Club and a costs order made in favour of the complainant.

Second, the witness statements, the respondent's witness statements which by now the complainant already had, contained some internal inconsistencies. Third, the offer does not clearly explain what documents had to be executed to give effect to the settlement, whether for example the parties are to make consent applications to have the costs order in the Supreme Court set aside or whether they are to enter into mutual releases under which the Club would waive any right to costs and the complainant would waive his right to costs under the Supreme Court's order.

Fourth, the shortness of the time for which the offers were open, seven days in the first case and a day in the second, left little time for the complainant to consider whether it would be reasonable to accept the offer. Fifth, the effect of the offer was to deprive the complainant of the benefit of a costs order made by the Supreme Court in his favour. In all these circumstances I do not consider it unreasonable that Mr Jamieson rejected the offer and its rejection does not lead me to consider it fair to award costs against him.

As to settlement offers of this kind generally see Grabavac v. Heart [1997]1 VR 154. It is next submitted for the Club that it would be fair to award costs in its favour taking into account the relative strength of the claims of the parties. This is a factor which I must take into account under s.109(3) of the VCAT Act. I do not agree with this submission.

I have already said that in my view Mr Jamieson's claim was not manifestly untenable. I take into account the state of the evidence, the inconsistencies in the witness statement and the inconsistencies between them and the oral evidence, the many disputed issues of fact and the fact that the Tribunal drew some conclusions favourable to the complainant namely in relation to whether tattoos are physical features and in relation to certain statements made by Mr Sherlock, one of the respondent's witnesses, in a meeting with the complainant.

Taking all these matters into account, although while ultimately the club was found not to have contravened the Act, I do not consider that there is such a disparity between the relative strength of the party's claims to make it fair to award costs to the Club in these circumstances.

Finally, I would add that under s.109(3) I must also take into account among other things the nature of the proceeding. I take into account that this complaint is a proceeding under the Equal Opportunity Act 1995, legislation which has a social rather than a commercial objective. I also take into account that there has not, in my view, been a suggestion that the complainant did not genuinely believe that he had been discriminated against.

For all these reasons it seems to me that the proper position ought to be that the parties bear their own costs. Thank you very much.