Administrative tribunals - Procedure - Statutory powers - Order for costs - Ordinary position that parties are to bear their own costs - Entitlement to costs -Effect of party conduct on entitlement to costs - Where proceedings withdrawn by applicant

Equal Opportunity Act 1984 ss 5, 6, 85A, 85B, 85F, 85G, 85K, 86, 90, 91, 93, 95A, 95B, 96B, 103

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 43, 44, 47, 48, 56, 57, 58

South Australian Civil and Administrative Tribunal Rules r 27, 101, 102

Aldridge v Johnston [2020] SASCFC 31

Atkins v Hughes & Anor [2019] SASCFC 49

Australian Federation of Islamic Councils Inc v United Muslims of New South Wales Inc [2021] NSWCA 311

Chan v Barter [2003] SADC 58

Conservative and Unionist Central Office v Burrell [1981] EWCA Civ 2

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

FTU v Nursing and Midwifery Board of Australia [2020] SACAT 5

GKZ v Department of Child Protection [2022] SACAT 29

GKZ v Department of Child Protection (No 3) [2022] SACAT 76

Han v Barker & Ors (No 2) [2025] SAERDC 1

Hanna v City of Marion& Anor [2020] SACAT 21

Loxton v Healy & Anor [2023] SACAT 43

McFarlane v Outback Communities Authority (No 2) [2024] SASC 74

Nguyen v Ross & Anor [2024] SACAT 69

NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433

Peek v SA Water [2022] SACAT 47

Re HWS [2018] SACAT 39

Rebbeck v Housing SA [2024] SASCA 86.

Somasundaram v State of South Australia [2012] SAEOT 3

South Australian Housing Trust v Brady & Milera [2018] SACAT 2

Taylor v Marveggio (No 2) [2020] SACAT 99

Yakmor v Hamdoush (No 2) [2009] NSWCA 284

YJV v YJW [2024] NSWCATAP 255

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This is the decision on the respondents' application for costs following the withdrawal by the applicant of the substantive proceedings against the respondents under the Equal Opportunity Act 1984 (EO Act) and the subsequent dismissal of those proceedings by the Tribunal.
2. The substantive proceedings were initiated on 25 August 2023 upon a referral to the Tribunal under s 95B(1)(c) of the EO Act by the Commissioner for Equal Opportunity (Commissioner). The applicant had alleged 49 individual breaches of the EO Act by the respondents (the Complaints).[1] The Tribunal proceedings were dismissed upon their withdrawal by the applicant prior to any full hearing of the allegations in the Complaints and prior to the respondents providing their formal Response to the Complaints.
3. I explain in these reasons why I have made costs orders against the applicant.
4. This decision is structured as follows:

1. the parties to the substantive proceedings; 2. an account of the course and conduct of the proceedings in the Tribunal, including questions of procedural fairness;

1. the applicant's Complaints against the respondents;

1. the relevant legislation and case law relating to costs in the Tribunal, including where proceedings are conducted by a Litigation Guardian; 2. the submissions of the parties on costs; 3. the Tribunal's consideration of the respondents' costs application in light of the above matters; and 4. conclusion.

1. Where I refer to the "applicant" in respect of the proceedings before the Tribunal, it is to KDP.
2. At the time that these proceedings were commenced, the applicant was a minor aged 17 years. He turned 18 in July 2024.
3. Until the applicant attained his majority, the proceedings were conducted on his behalf by his father, JZN, as litigation guardian (the Litigation Guardian).
4. Neither the applicant nor the Litigation Guardian were represented by a lawyer at any time in these proceedings.
5. After attaining his majority, the applicant filed documents in the Tribunal in his own name.
6. The first respondent operates a radio station in Adelaide. It is referred to in these reasons by its familiar station name of 5EBI.
7. The Tribunal understands that the second respondent is or was the General Manager of 5EBI and that the third to eleventh respondents inclusive were or are members of the Executive Committee of 5EBI.
8. The first to eleventh respondents inclusive are represented in these proceedings by Brendan Connell, a solicitor. Mr Connell is also the twelfth respondent.
9. The applicant, the Litigation Guardian and the applicant's mother ZLE attended all directions hearings in these proceedings that were not undertaken "on the papers". The respondents were represented at all such hearings by Mr Connell, save for the fourth directions hearings when Mr Belperio attended in his place.

B. The course and conduct of the proceedings in the Tribunal

1. Since the receipt in the Tribunal of the Commissioner's referral on 25 August 2023, these proceedings have had a substantial procedural history. I summarise major milestones below but discuss some aspects at greater length where they are relevant to the discussion later in these reasons.
2. On 8 September 2023, the applicant wrote to the Tribunal asserting that the Complaints in the Tribunal do not correspond to his complaints to the Commissioner; that (for various reasons) he did not make a complaint against 5EBI, only against other respondents including Mr Connell, and that 5EBI should be removed as a respondent in the Complaints; and that he objects to Mr Connell representing the other respondents.
3. On 26 September 2023, a Member of the Tribunal conducted a directions hearing "on the papers" and adjourned proceedings on account of the illness of the Litigation Guardian and ZLE (First Directions). No adverse weight is placed on this adjournment in my present decision and it is not necessary to speak of it again.
4. On 10 October 2023, I conducted the second directions hearing in this matter and adjourned the proceedings to allow the Litigation Guardian to obtain legal advice (Second Directions).
5. In my Second Directions, I explained for the applicant's benefit that it is not every act of discrimination that can be dealt with under the EO Act and that the EO Act is specific about the grounds of discrimination it can deal with and the areas of public life in which that alleged discrimination is said to have happened and the persons or organisations that can be the subject of action under the Act.
6. The Second Directions raised the issue of the applicant obtaining legal advice and the especially complex nature of proceedings under the EO Act. The financial risk of a costs order was also raised.
7. I said that the Tribunal cannot give the applicant or Litigation Guardian legal advice and did not act as an investigator of the Complaints as the Tribunal could only act on the evidence and legal submissions of the parties. I said it was for the applicant to prove his case that each of the 12 respondents had acted in breach of the EO Act in the way that he has alleged.
8. The Litigation Guardian's attention was expressly drawn by me to the EO Act and that he would need to have close regard to its provisions.
9. I had formed a view that the Complaints were not properly particularised and in fact were substantially deficient in that regard. I said in the Second Directions that it was not possible to understand the precise nature of the applicant's Complaints from the documents submitted to the Commissioner by the applicant.
10. I said that it was likely that the Tribunal would make orders at the next directions hearing that the applicant provide fuller and better details of the victimisation and discrimination allegations made against the respondents and the allegations regarding discriminatory advertising. At my request, the Registry sent the applicant a Legal Assistance Guide factsheet;[2] the Tribunal's factsheet relating to litigation guardians; and the Tribunal's comprehensive factsheet[3] on proceedings taken under the EO Act (EO factsheet).
11. The EO factsheet included details of the advice service established by the University of Adelaide for matters under the EO Act. It also included an explanation of the need for an applicant to provide further and better particulars of their complaint and that an applicant has the onus on the balance of probabilities to prove their assertions by way of evidence adduced to the Tribunal.
12. On 28 November 2023, I conducted a third directions hearing (Third Directions). I adjourned the proceedings to permit the Litigation Guardian more time to obtain legal advice. At this directions hearing, Mr Connell indicated that the respondents would seek their legal costs should the proceedings be dismissed.
13. In my Third Directions, I noted that it was evident to me that the Litigation Guardian would find it challenging to prosecute these complex proceedings without at least legal advice, if not also legal representation and that he appeared to misunderstand the nature and scope of the proceedings before the Tribunal and the role and responsibilities of a complainant. I referred him again to my Second Directions and the Tribunal's EO factsheet.
14. On 29 January 2024, the applicant filed an interlocutory application in the Tribunal seeking that Mr Connell and (seemingly) the law firm Belperio Clark be removed as representatives of the other respondents (the removal application).
15. On 30 January 2024, the fourth directions hearing was conducted (Fourth Directions). The Litigation Guardian told me he was content to progress the matter notwithstanding that the applicant had not yet obtained legal representation. I made directions for the provision by the applicant of further and better particulars of his Complaints (Further and Better Particulars) and for the respondents to file their response to the allegations.
16. In my Fourth Directions, I explained at considerable length the reasons for requiring the applicant to provide detailed and specific Further and Better Particulars of his Complaints and what he must do.[4] I said that it would not be sufficient or appropriate for the applicant to provide only a discursive narrative of the events he says constitute breaches of the EO Act and leave it to the Tribunal and the respondents to tease out what the allegations must be.
17. I said that, at the eventual hearing of the Complaints, the applicant would be required to prove the allegations made against the respondents by way of evidence supporting his version of the facts.
18. I directed (consistently with the EO factsheet earlier provided to the applicant) that the applicant provide discrete and separate Further and Better Particulars for each of the 49 allegations of breaches of the EO Act and that, in respect of each breach, the applicant must set out:
    1. the section of the EO Act the applicant relies on; and
    2. the conduct said to constitute the breach, including the facts or omissions alleged to constitute the breach (i.e. the who, what, why, where and when of the alleged conduct); and
    3. how the alleged conduct is related to the age of the applicant; and
    4. how the alleged conduct is related to employment; and
    5. how the alleged conduct is related to associations.
19. I said that, should the applicant decide to abandon one or more complaints against one or more of the respondents, he could raise that at the next directions hearing.
20. I also directed that the applicant provide specific details of how the amount of monetary compensation sought against the respondents had been determined.
21. I directed that the Further and Better Particulars take a particular format to assist the applicant to manage the sheer number of allegations made against the respondents.[5]
22. I also extracted in the Fourth Directions certain passages of the Tribunal's decision in Peek v SA Water (Peek)[6] and directed the Registry to send the applicant a full copy of that decision. This is because it appeared to me that the proceedings were being prosecuted by the Litigation Guardian in a manner that was not confined to the allegations in the Complaints. In particular, it appeared that the Litigation Guardian was introducing race as a ground of discrimination.[7]
23. I also asked the Registry to send the parties a copy of the bundle of referral documents filed by the Commissioner (referral bundle).
24. Although not strictly complying with paragraphs 15 to 19 of my Fourth Directions,[8] the applicant has filed voluminous material which I have taken in these reasons to be his Further and Better Particulars.
25. On 31 January 2024, the applicant filed an interlocutory application in the Tribunal seeking that the Tribunal review the observations I had made in the narrative accompanying my Second Directions. Any such application should have been made to the Supreme Court. The record is silent as to whether this application was transferred to or refiled in the Supreme Court Registry, or whether it was served on the respondents.
26. On 16 February 2024, Mr Connell provided written submissions to the Tribunal in respect of the applicant's removal application.
27. On 28 March 2024, the applicant filed a document clearly intended to address my directions that he provide further and better particulars of his Complaints (First Further and Better Particulars).[9]
28. On 13 May 2024, the applicant wrote to the Tribunal in response to Mr Connell's submissions of 16 February 2024 in respect of the removal application. I have taken this letter to be additional submissions from the applicant on this application.
29. On 14 May 2024, the fifth directions hearing was conducted (Fifth Directions). I considered that the applicant had not complied in any real sense with my earlier directions to provide Further and Better Particulars of his allegations against each of the 12 respondents and intended to raise this with the Litigation Guardian at the directions hearing. As I explained at this directions hearing, it is not unusual for an applicant to be given an opportunity to improve on their Further and Better Particulars. So that there was no misunderstanding, I asked the Litigation Guardian to allow the interpreter to interpret my words verbatim before he responded.
30. After some minutes, the Litigation Guardian, the applicant and ZLE were removed from the hearing room by the Tribunal's security guard at my request. This was due to a series of inappropriate and disrespectful interjections and interruptions of the hearing by each of them. The directions hearing proceeded in their absence, with Mr Connell only.
31. I then made further directions allowing the applicant additional time to provide his Further and Better Particulars, noting in the directions that this was done as a matter of fairness to the applicant as there can be serious consequences of the applicant not complying, or not complying adequately, with the direction to supply Further and Better Particulars. I noted that two such potential consequences are, first, that the Tribunal may, on its own initiative or upon an application from the respondents, strike out or dismiss the Complaints in whole or in part under ss 47 and/or 48 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) and, secondly, the risk of costs being awarded against the applicant.
32. Mr Connell did not oppose the Tribunal allowing the applicant additional time to comply with my previous direction but indicated that the respondents may instruct him to file an application to strike out the Complaints and for their costs. I said in the directions that I would timetable submissions on any such application and on the applicant's removal application at the next directions hearing, and proposed to then make a decision on those applications "on the papers".
33. I referred the parties in my directions to the decision in FTU v Nursing and Midwifery Board of Australia (FTU),[10] as being relevant to the applicant's removal application. This decision is discussed further below.
34. I noted in my written directions that the applicant would turn 18 years of age in July and would then no longer be entitled to be represented in these proceedings by a litigation guardian as he would no longer be a child. I drew the applicant's attention to the terms of s 56 of the SACAT Act as to his entitlement to conduct the proceedings in person, or to be represented by a lawyer or, if the Tribunal grants permission, to be represented by a person who is not a lawyer.
35. I also observed in my written directions that the additional time I was allowing the applicant would permit him a further opportunity to obtain legal advice on the several issues raised in my directions.
36. On 14 June 2024, the respondents filed a strike out application in which they sought their costs. The application was to dismiss the Complaints and the removal application. The strike out application was accompanied by an affidavit of Mr Connell dated 13 June 2024.
37. On 14 June 2024, the applicant wrote to the Tribunal seeking a review of my Fifth Directions and separate correspondence objecting to my conduct of the proceedings and seeking that I be replaced.
38. On 28 June 2024, the applicant filed an interlocutory application with a supporting affidavit of the Litigation Guardian seeking:
    1. adjournment of the forthcoming directions hearing of 9 July 2024 because of the objections made about me;
    2. the striking out of the respondents' strike out application and Mr Connell's affidavit on account of the affidavit being prepared without any regard to the rules of evidence and containing perjury; and
    3. cross-examination of the second to twelfth respondents.
39. On 1 July 2024, the applicant filed a large document with many attachments being a "Reply to the SACAT Decision dated 14 May 2024". I took this to be the applicant's second further particularisation of the Complaints (Second Further and Better Particulars). Again, this document did not in any real sense address the provisions of the EO Act that I had directed the applicant to address in my Fourth Directions and Fifth Directions.
40. On 9 July 2024, the sixth directions hearing was conducted (Sixth Directions). It dealt with the two outstanding interlocutory applications then before me: the applicant's interlocutory application to remove Mr Connell and the respondents' application to strike out the proceedings and the applicant's removal application and seek their costs. I noted that, by that stage, there had been a considerable number of documents filed in the Tribunal in respect of those applications. Mr Connell said that the respondents did not intend to file any further material. The Litigation Guardian sought a further two weeks to file further submissions on the applications. This was granted. I said that I would then make a decision on both applications "on the papers" unless I decided I needed to hear oral submissions or take evidence.
41. I note also that, at the sixth directions hearing, the Litigation Guardian made an oral application that I recuse myself from further conducting these proceedings on the grounds that I had not asked or allowed him or the applicant to talk about the substantive issues in this case and on the grounds that I had caused him, the applicant and ZLE to be removed from the fifth directions hearing.
42. After hearing submissions from the Litigation Guardian and from Mr Connell, I declined the recusal application. Citing Ebner v Official Trustee in Bankruptcy,[11] I explained in the narrative accompanying my written directions the reasons for declining to recuse myself. This was essentially that a fair-minded lay observer would recognise that my conduct of the several directions hearings in this matter was within the scope of my duty as a Tribunal member to conduct the hearings in a fair and efficient manner (which, as they are only directions hearings of a preliminary and procedural nature, do not involve a consideration of the substantive issues between the parties), and that events at the directions hearing on 14 May 2024 were largely the result of the failure of the Litigation Guardian, the applicant and ZLE to comport themselves appropriately and to comply with my various requests, including that they not interrupt the proceedings.
43. On 14 July 2024, the applicant attained his majority.[12]
44. On 18 July 2024 and again on 23 July 2024, the applicant on his own behalf filed stay applications in the Tribunal on the grounds that he had appealed my directions of 14 May 2024 (the Fifth Directions) to the Supreme Court and that he was intending to appeal to the Supreme Court against my directions of 9 July 2024 (the Sixth Directions). Both stay applications were supported by affidavits "settled" and deposed by the applicant himself.
45. On 23 July 2024, the applicant personally filed a large affidavit with multiple attachments in response to Mr Connell's affidavit of 13 June 2024.
46. This affidavit includes allegations that I am or was biassed in favour of the respondents. It is appropriate to deal with those allegations here and to consider whether I should recuse myself from determining this costs application.
47. The applicant asserts my directions demonstrate that I gave legal advice to the respondents by making "suggestive Orders and instructions" on interlocutory applications that the respondents could make.[13] The particular directions are not identified. I have reviewed all my written directions and my recollection of the directions hearings. I am satisfied that there is no reasonable basis for the applicant to hold such a belief about any of my directions.
48. Also, the applicant complained that I did not comply with the EO factsheet in requiring a response to the Complaints from the respondents within 21 days of the referral and that this demonstrated favouritism by me towards the respondents.[14] I am aware that the applicant has objected on a number of occasions that the respondents had not filed a response to his Complaints within the timeframe indicated in the Tribunal's EO Factsheet.
49. However, as I have already indicated, the Complaints as referred were in no state for the respondents to formally respond to. I did not consider it appropriate or efficient to require a response from the respondents until the applicant had fully particularised his Complaints. The contents of the Tribunal's EO factsheet do not override my duty under ss 43 and 44 of the SACAT Act to ensure that proceedings are fair and that the parties to proceedings have a reasonable opportunity to understand the nature of the matter under consideration and to understand the nature of any assertions made in the proceedings.
50. I am satisfied that the applicant has not identified a basis for me to recuse myself. I am satisfied that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of these proceedings, including this costs application.[15]
51. The Seventh Directions were issued "on the papers" on 25 July 2024 on the applicant's stay applications. I noted however that advice from the Supreme Court Registry was that the appeal against my Fifth Directions had been struck out by the Court on 17 July 2024 and that no appeal had yet been filed against my Sixth Directions. Noting that an appeal to the Court against a decision of the Tribunal must be made within one month of the Tribunal's decision, I adjourned consideration of the stay application until after that one month period had passed.
52. Due to some confusion between the Tribunal Registry and the Supreme Court Registry, I erroneously believed that the applicant had filed an appeal against my Sixth Directions on about 12 August 2024. Accordingly, I refrained from making a decision on the two outstanding interlocutory applications then before me - the applicant's removal application and the respondents' strike out application. On 23 October 2024, the Tribunal informed the parties that the advice of the Court Registry received the previous day was that there was in fact no such appeal, and that accordingly I would proceed with the two interlocutory applications unless the parties considered that there was actually such an appeal in the Supreme Court.
53. On 25 October 2024, the applicant filed a notice in the Tribunal withdrawing the substantive proceedings on the Complaints. On 29 October 2024, I granted the applicant leave to discontinue the proceedings and ordered that the proceedings be dismissed.
54. On 11 December 2024, the respondents filed a brief Outline of Argument in respect of the earlier application for costs filed as part of the strike out application of 14 June 2024. This was taken in the Tribunal as an indication that the respondents continued to press their costs application.
55. The final directions hearing in these proceedings was held on 28 January 2025 (Eighth Directions) on the respondents' costs application. On the day of that directions hearing, the applicant filed and served two Outlines of Argument (dated 27 January 2025). I made directions that, after time allowed for a Reply by the respondents to the applicant's two Outlines of Argument, I would make a decision on the costs application "on the papers".
56. No further submissions on costs have been received from any party as at the time of issue of these reasons.

A complaint alleging that a person has acted in contravention of this Act may be made- > > (a) by a person aggrieved by the act;

(b) by a person aggrieved by the act, on behalf of himself or herself and any other person aggrieved by the act;

(c) if a person aggrieved by the act is a child or has an intellectual disability - by a person who is, in the opinion of the Commissioner, a suitable representative of the interests of the aggrieved person.

1. It is not every act of discrimination that can be dealt with under the EO Act. It is also not every act that a person finds offensive or is aggrieved about that can found a complaint under the EO Act.
2. The EO Act is specific about the grounds of discrimination it can deal with, the areas of public life in which that alleged discrimination is said to have happened, and the persons or organisations that can be the subject of action under the Act. The Act is also specific about what victimisation and discriminatory advertising grievances can be dealt with under the Act.
3. In Peek, a recent decision under the EO Act, the President of the Tribunal indicated that a complaint, as referred to the Tribunal, delineates the scope of the Tribunal's jurisdiction.
4. Her Honour said (my underlining):
   1. The Commissioner's referral is expressed in a manner to enliven the Tribunal's jurisdiction to determine the complaint and to define the scope of the matter.
   2. That scope determines the limits of the dispute except insofar as the Tribunal may permit any enlargement. The discretion to permit enlargement of the scope of the dispute would usually be limited to the identification of further or other occasions of alleged discrimination of the same type alleged in the original complaint. This is because the scheme of the Act is evidently to require a complainant to have their complaint investigated and conciliated in the first instance by the Commissioner and for the Tribunal only to conciliate or hear matters that have already been through such a process.
   3. To the extent that the Tribunal is able to enlarge the scope of the proceedings such enlargement is not capable or should not be exercised in a manner that introduces new grounds of discrimination with different criteria that have not been assessed by the Commissioner as having prima facie been met so as to create a complaint that is within jurisdiction and that has been through the Commissioner's processes.[16]
5. This principle is long established.[17] Some latitude will be given to a complainant in providing further particulars of a complaint.[18]
6. I note also the passage in paragraph [65] of Peek (reproduced below) which indicates that a complainant would not necessarily be confined to the "label that the complainant used to describe the complaint or a feature of the complaint" where the issues before the Tribunal are otherwise well understood by the parties and the Tribunal.
7. It is therefore critical to carefully scrutinise the Complaints to understand the scope of the Tribunal's jurisdiction. Any new ground of discrimination cannot be introduced in the Tribunal after the referral by the Commissioner and must be raised first with the Commissioner so that it can be dealt with under the EO Act.[19]

1. The referral bundle indicates that this matter commenced on 19 April 2023 by the applicant making three separate complaints to the Commissioner under the EO Act within a few minutes of each other. The Tribunal has received a printout of the three complaints. They have the appearance of being made online and I will refer to them as online complaints. Moreover, they have the appearance that the complaint form is filled out online by the complainant making selections from a number of "drop-down menus".
2. The first online complaint concerned the second, third, fourth, fifth and sixth respondents. The second online complaint concerned the seventh, eighth, ninth, tenth and eleventh respondents. The third online complaint concerned the twelfth respondent (Mr Connell) only. It is not clear why three separate online complaints were made instead of consolidating all complaints in the one form, but nothing turns on this.
3. The printouts of each of the three online complaints contain the following questions and responses. They are identical save for the difference in the answers to the last question reproduced below.

Please select the laws under which a complaint was made that resulted in victimisation

Equal Opportunity Act 1984

Please select the ground(s) for the discrimination experienced:

Please select the area(s) of public life where the discrimination occurred:

Employment (including voluntary, paid and unpaid work), Clubs and association, Advertising

Please provide more details (e.g. what happened, who was involved, their relationship to you, and why you think it is discrimination, sexual harassment or victimisation).

Please tell us what happened as a result of the event or behaviour

What effect (financial or personal) did the unfair treatment have on the complainant?

[Second to Eleventh Respondents only] - I have been working for more than 4 years since August 2019 in 5 EBI. I invested more than 9,500 working hours. I've paid membership fees for 3 years, and I've paid for training fees and airtime fees. I donated $900.00 to 5EBI. All my schoolmates listen to my program. Many friends in Adelaide, Australia, China, Europe, and America. I have great reputation damage. My friends ask me what's wrong with my program. I'm asked everyday: "Why is my picture and my name in the program and we have to listen to other music that you didn't make?"

[Twelfth respondent only] - Victimisation, reputation damage, loss of audience.

1. The complaints against the second to eleventh respondents alleged the relevant events complained of occurred between 30 October 2022 and 18 April 2023. The complaint against Mr Connell, the twelfth respondent, alleged the relevant events occurred on 24 February 2023. This is the date of a letter from Mr Connell to the applicant that is discussed further below.
2. It should be noted that none of the online complaints include the first respondent, 5EBI, as a party against whom any complaint is made. This is discussed further below.

1. The referral bundle included a number of additional documents supplied by the applicant to the Commissioner in conjunction with his online complaints (the Supplementary Complaint Material).
2. In a written statement dated 19 April 2024 by the applicant (and countersigned by his parents), the applicant stated [sic, reference to most attachments omitted]:

I have been working for Ethnic Broadcasters Incorporated (further 5EBI) without a volunteer contract for more than 4 years. According to the General Manager, Mr Kym Green statement dated 28/09/2020, the prerequisite for own broadcast at 5EBI was the successful completion of the 5EBI Broadcaster Course. I and my Parents as supervisors have invested more than a year in waiting for study place and education at 5EBI. The costs for this education we have to pay alone... > > After them, at the express request of the General Manager, I should produce and present at my own expenses 'Youth Program'... > > The General Manager gave us the prospect of membership in 5EBI. There were no restrictions or limitations on membership in 5EBI... > > For 3 years I and my Parents are Member from 5EBI. Our membership has been confirmed in writing by the 5EBI General Manager, Mr Kym Green several times so at 15/10/2021... > > General Manager informed us that 5EBI is in a difficult financial situation and every dollar is needed as a donation. In addition to membership fees and broadcasting fees, I also donated $700.00 to 5EBI in 2021/2022 ... > > Application for Renewal of my/our Membership for 2022-23 was accepted by 5EBI. We have also received and paid Membership invoice and broadcasting fees for the financial 2022/2023 ... > > I produce and represent for more than 2 years my own Radio Program [name of program redacted] and for 6 months second Program [name of program redacted]. > > I got Community Service Award 2023 for my broadcast on 26/01/2023. > > Since October 2022 responsible of 5EBI began to misuse my private name, my private intellectual property (name of my Radio shows), for unauthorized advertising. My name was unannounced, unauthorised without my consent advertised alternately with private individuals involved in bankruptcy of German Adelaide Club, or other for me unknown persons. I and my parents were asked several times in different meetings, in which relationship we are with this person involved in bankruptcy. The abuse of my private name and these questions damage reputation for me and my parents, especially since we don't even really know these people. > > Various other private people used my own radio show, my private name, my private intellectual property, to promote themselves and their own radio shows without my consent and without my knowledge. In my radio show, the slogan for others was constantly advertised without my consent: "Join me and my radio show". > > Several requests to stop this advertising were ignored by 5EBI. The General Manager said to us on January 17, 2023, in a personal meeting: "What is wrong with it". The advertising lasted more than 4 months. On 27/01/2023 there was a second meeting regarding my concerns. After this meeting, the General Manager announced that he would terminate my membership... > > This then happened. Membership was revoked after 3 years of membership because I'm now 16 years old. So, from 21/02/2023 my 2 programs were suspended. > > How I understand 5EBI's action is a discrimination according to the Equal Opportunity Act 1984, Division 3, 85G., Discrimination by association on ground of age. > > I see in the manager's behaviour an abuse of his position of power. > > After my broadcast was discontinued on 21/02/ 2023 after 3 years, 5EBI responsible continue to broadcast other broadcasts under my name without my permission. Even today in my name and the name of my radio shows are in the radio program of 5EBI without my consent. > > Derogatory and discriminatory, misleading noises such as dogs barking, whistling, drilling was often broadcast. Attachment number 12 MP3. > > This doesn't appeal to my youth audience and also ruins my reputation. > > This represents a further victimization of my underage person by those responsible at 5EBI. > > I am asked daily by my friends, classmates, neighbours, acquaintances, what happens with my radio shows. > > Both of my radio programs can be heard in Europe and America. My listeners and my friends all over the world, have also alerted me to misuse of my personal name and private intellectual property and are extremely concerned about 5EBI 's actions.

3. The referral bundle contains a copy of the Constitution of Ethnic Broadcasters Inc (Constitution) dated 5 March 2020 and two MP3 audio files.[20] Further reference is made to the Constitution later in these reasons.
4. One of the MP3 audio files is entitled "12_04.04.23 victimisation during my show time.mp3". I have taken this to be Attachment 12 to the above statement. I have listened to this audio file, an extract of about 90 seconds. It contains some sounds, such as dogs barking, and singing in a non-English language. It is apparently of African music.[21]
5. There is a second statement dated 19 April 2023 from the applicant (and again countersigned by his parents). This appears to be a reference to the online complaint against the twelfth respondent, Mr Connell, and in particular alleges that Mr Connell has breached s 90 of the EO Act by aiding a breach of s 85G of that Act.
6. This second statement refers to and includes one page from a letter from Mr Connell dated 24 February 2023 and a paragraph [j] of that letter which states "[KDP] is currently 16 and therefore could not be a member under any circumstances". The Tribunal has only ever received this single page from an apparent multiple page letter and can therefore have no understanding of the purpose or context of the letter as a whole.
7. The applicant writes in his statement (my underlining):

The lawyer presents untrue information that speaks against the present statements and documents and membership invoices. > > The lawyer's statement "j) [KDP] is currently 16 and therefore could not be a member under any circumstances". > > I see this statement sent to me as a Lawyer of 5EBI according to the Equal Opportunity Act 1984, Division 3, 85G as an aid for the discrimination by association on ground of age according to the Equal Opportunity Act 1984, Division 3, 90 - Aiding unlawful acts.

8. It is appropriate to consider all the materials produced to the Commissioner by the applicant (the online complaints and the Supplementary Complaint Material) as constituting the Complaints for the purposes of these proceedings.
9. While the Complaints are ambiguous on the matter of compensation, the Litigation Guardian clarified at the second directions hearing that the applicant was seeking $250,000 in toto in compensation against the respondents.

Commissioner's Referral letter and Notice of Referral

1. On 25 August 2023, the Commissioner referred the Complaints to the Tribunal at the request of the applicant under s 95B(1)(c) of the EO Act.[22]
2. The referral bundle was sent from the Commissioner to the Tribunal's Registrar with a cover letter and a formal Notice of Referral.
3. In brief, the Commissioner's letter identified the Complaints against each of the 12 respondents to be of:
   1. discriminatory advertising contrary to s 103 of the EO Act;
   2. victimisation contrary to s 86 of the EO Act;
   3. age discrimination in the area of employment contrary to s 85B of the EO Act; and
   4. age discrimination in the area of associations contrary to s 85G of the EO Act.
4. The letter identified a further allegation that the twelfth respondent, Mr Connell, aided the unlawful actions of the first to eleventh respondents, contrary to s 90 of the EO Act.
5. I respectfully disagree with the Commissioner on this last point, in particular on the scope of this separate allegation against Mr Connell. This appears to be an oversight or administrative error. I consider that it is clear from the Supplementary Complaint Material (namely the underlined portion of the applicant's second statement of 19 April 2023) that the applicant's discrete complaint against Mr Connell was only that Mr Connell aided 5EBI in the breach of s 85G of the EO Act.
6. In any event, this amounts to a referral of 49 separate allegations of a breach of the EO Act: identical allegations of four breaches of the EO Act against each of the 12 respondents and a distinct, additional allegation against Mr Connell.[23]
7. The Commissioner said in her letter that she declined the complaints on 12 May 2023 on the grounds that they were invalid as the applicant's parents did not make the complaints on his behalf pursuant to s 93(1)(c) of the EO Act.[24] She also said that she had advised the applicant that, even if his parents resubmitted the complaints on his behalf, she would decline them pursuant to s 95A(1)(a) of the EO Act on the basis that they were frivolous, vexatious, misconceived and lacking in substance.
8. The Commissioner said that she communicated her decision to the applicant in an emailed letter and provided a copy of that decision to his parents in the post.
9. The Commissioner also said in her letter to the Registrar that, on 10 August 2023, the applicant requested that she refer his complaints to the Tribunal under s 95B(1)(c) of the EO Act for hearing and determination. She said that the Assistant Commissioner offered to delay the referral process so that the applicant could seek independent legal advice through the University of Adelaide's Equal Opportunity Legal Advice Service. However, by correspondence on 19 August 2023, the applicant requested that all aspects of his complaint be referred to the Tribunal forthwith.

1. The three online complaint forms lodged with the Commissioner do not include 5EBI as a party against which allegations are made, yet 5EBI was included as a respondent in the Complaints referred to the Tribunal by the Commissioner.
2. In correspondence dated 8 September 2023 with the Tribunal, the applicant indicated that 5EBI was not intended to be part of the Complaints and sought that the Tribunal remove 5EBI as a respondent.
3. In my Second Directions, I said that, if the applicant did not wish to include 5EBI in the proceedings, he may apply for the referral to be amended. I suggested that legal advice be obtained as to the consequences of excluding 5EBI from the proceedings and, in particular, whether an age discrimination complaint in the areas of employment and associations could be sustained against the other eleven respondents.
4. By letter to the Tribunal dated 19 October 2023, the Commissioner explained the reasons for including 5EBI as a respondent in the Complaints referred to the Tribunal. The Commissioner said that it was clear that the applicant had included 5EBI as a respondent. She referred to the many references to 5EBI in the applicant's first statement of 19 April 2023 which, she said, contained repeated accusations against 5EBI. She said that she had made it clear in her letter of 12 May 2023 to the applicant that she considered 5EBI to be a respondent and that the applicant did not raise any concern about this when he requested that she refer the Complaints to the Tribunal.
5. The Commissioner's letter of 19 October 2023 was provided by the Tribunal to the parties.
6. In a decision of the former Equal Opportunity Tribunal, her Honour Judge Cole found that:

Mr O'Leary submitted that the Tribunal's jurisdiction could neither be extended nor confined by the Commissioner's "characterisation" of the complaint. I agree. Pursuant to s 95B of the Act, the Commissioner must, in specified circumstances, refer "the matter" to the Tribunal. "The matter" is the complaint. Nothing the Commissioner says in the Notice of Referral can alter the nature or the content of the complaint.[25]

Complainants to the Commissioner are very often unrepresented at the stage of the making of the complaint. Many of them do not have a high level of education .... Many have English as a second language, and some do not speak or write English at all. The preamble to the Act says that it is: > > An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; to facilitate the participation of citizens in the economic and social life of the community and to deal with related matters.[26]

I do not consider that a complaint to the Commissioner should be read strictly, as a pleading in a Court might be read.[27]

9. I have respectfully adopted Judge Cole's observations in agreeing with the Commissioner's reasons for including 5EBI as a respondent in the matter referred to the Tribunal. I consider that it was fair and reasonable for the Commissioner to give the benefit of the doubt to the applicant in interpreting the scope of the Complaints. Whether the various online complaints and the Supplementary Complaint Material were drafted by the applicant or one or more of his parents, the author was an unrepresented and unsophisticated lay complainant. The drafting of these documents should not be expected to be of the level that one would ordinarily encounter from a legal practitioner.
10. I consider also that it was fair, reasonable and sensible for the Commissioner to infer that the applicant's grounds of complaint against 5EBI were the same as the grounds of complaint against its employees and/or office bearers, namely its General Manager and Executive Committee members.
11. There is some support for this conclusion in documents subsequently filed by the applicant in the Tribunal where he states that he sees the "Executive Committee as a generic term for an EBI body" and that the applicant has "never alleged that he was individually discriminated against or victimised by any particular Executive Committee Member".[28] This suggests to a degree that the applicant was including the second to eleventh respondents in his Complaints in some sort of proxy capacity for 5EBI.
12. On the basis set out in Part C of these reasons, I am satisfied that the Complaints referred to the Tribunal (and the inclusion of 5EBI as a respondent) are a fair and reasonable reflection of the various matters raised by the applicant with the Commissioner.
13. While initially raising some objection to 5EBI being a respondent in these proceedings, I infer from the applicant's failure to take any further steps in that regard that the applicant subsequently acquiesced in the inclusion of 5EBI as a respondent. In fact, the applicant intimated in one of his interlocutory applications that he "does not want to make any changes".[29] He later seemed to acknowledge that he had made "a valid complaint against 5EBI".[30]
14. I am therefore satisfied that it is proper that 5EBI's costs be considered in these reasons.

1. The determination of costs applications in the Tribunal generally differs from costs applications in some courts where the successful party might usually expect to receive an award of costs in their favour against the unsuccessful party.[31] Whereas, in some courts, the principle of fairness grounds the traditional entitlement to costs where a party is successful, in respect of the Tribunal the Parliament has stipulated that there is a different starting point, namely that the parties will bear their own costs.[32]
2. That starting position is subject to a contrary legislative intention being expressed in the Act conferring jurisdiction on the Tribunal.
3. The position in the Tribunal when an application is withdrawn or discontinued is also different from that applying in the State's courts where there are specific provisions in the Uniform Civil Rules 2020[33] about costs where a party discontinues proceedings.
4. There are no specific rules in the South Australian Civil and Administrative Tribunal Rules 2014 (SACAT Rules) about costs where a party discontinues proceedings. Rather, a costs application in the Tribunal is to be determined on the basis of the general legislation and rules applying to the Tribunal, and relevant case law.
5. As I discuss below, the Tribunal has a broad, but not unfettered, discretion to award costs if the Tribunal thinks that it is appropriate to do so after taking into account certain specified matters (the appropriateness standard).
6. The applicant for costs will have the onus of establishing an entitlement to costs.[34]

1. An application for costs in the Tribunal is governed principally by ss 57 and 58 of the SACAT Act which state:

57 - Costs > > (1) Unless otherwise specified in this Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal. > > (2) Unless otherwise specified in a relevant Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party, or of a person required to appear before the Tribunal or to produce evidential material, if the Tribunal thinks that it is appropriate to do so after taking into account -

(a) the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and

(c) any provision made by the rules;[35] and

(d) any other matter considered relevant by the Tribunal.

(3) Without limiting subsection (2), if the Tribunal dismisses or strikes out any proceedings in any prescribed circumstances, the Tribunal should also make an order for costs against the party against whom the action is directed unless the Tribunal is of the opinion that there is a good reason for not making an order in the circumstances of the particular case.

(4) If the Tribunal makes an order for the payment of costs and does not fix the amount of costs, that amount is to be assessed and settled in accordance with the rules.

58 - Costs - related matters

(1) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses or loss resulting from any proceedings or matter.

(2) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party, where the matter that is the subject of any proceedings comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -

(a) whether the party genuinely attempted to enable and assist the decision‑maker to make a decision on its merits;

(b) whether the party (being the decision‑maker) genuinely attempted to make a decision on its merits.

(3) The rules may deal with the effect of certain offers to settle, and the response, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.

(4) The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, any proceedings in a way that resulted in unnecessary costs.

1. To be clear, the dismissal of proceedings under s 47(3) of the SACAT Act upon their withdrawal is not a prescribed circumstance under s 57(3) of the SACAT Act so I have had no regard to that provision in my decision.
2. Understanding the application of ss 57 and 58 require them to be read in their statutory context within the SACAT Act, and also the legislation conferring jurisdiction on the Tribunal because there may be a different approach depending on the nature of the jurisdiction being exercised by the Tribunal.[36]
3. For example, a complaint brought to the Tribunal under the EO Act is not in the Tribunal's review jurisdiction (it falls in the Tribunal's original jurisdiction) so s 58(2) has no bearing in this matter.
4. It is also relevant to bear in mind that the objectives in s 8(1) of the SACAT Act state:

8 - Main objectives of Tribunal > > (1) The main objectives of the Tribunal in dealing with matters within its jurisdiction are -

(a) in the exercise of its jurisdiction, to promote the best principles of public administration, including -

(i) independence in decision‑making; and

(ii) natural justice and procedural fairness; and

(iii) high‑quality, consistent decision‑making; and

(iv) transparency and accountability in the exercise of statutory functions, powers and duties; and

(b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with special needs; and

(c) to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high‑quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and

(f) to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

Nguyen v Ross - a costs decision relating to proceedings under the EO Act

1. Nguyen v Ross[37] is a recent decision of Senior Member Rugless of this Tribunal regarding a costs application in respect of proceedings under the EO Act.
2. The Senior Member said:

1. There have been several published decisions of the Tribunal concerning the circumstances in which costs will be awarded. An analysis of those cases, and the principles regarding the award of costs in the Tribunal set out in the relevant decisions, is discussed, and summarised by Senior Member Ward in Nash v Revenue SA [2023] SACAT 90 at paragraph 11. 2. It is convenient to set out the summary from Nash v Revenue SA here ...:

[11] In previous costs decisions, the Tribunal has made and/or confirmed the following general propositions or observations which can guide the determination of costs applications under ss 57 and 58 (although each case must be determined on its merits and some of these matters may not arise in a particular case):

1. the clear effect of s 57 is that the Tribunal is generally a no costs jurisdiction, and costs will rarely be awarded;
2. a costs order is exceptional. It is not appropriate to describe the costs discretion under s 57(2) as broad and unfettered and there must be good reasons to depart from the default position that each party is to bear its own costs;
3. the overarching principle is that parties bear their own costs unless it is appropriate for the Tribunal to make a costs order and none of the factors that must be considered under s 57 overrides this general proposition;
4. this rule applies even where a party succeeds in the proceedings;
5. section 57(2)(d) gives the Tribunal a wide discretion (subject to the overarching principle) to consider a range of facts, circumstances and conduct in determining if it is appropriate to make an order for costs;
6. the objectives in s 8 of the SACAT Act, and how a costs order will reflect or further those objectives, are to inform whether a costs order should be made. This includes, in particular, ensuring that applications are processed as quickly as possible while achieving a just outcome; keeping costs to parties to a minimum insofar as is just and appropriate; and acting with as little formality and technicality as possible;
7. the central concern with respect to costs is that of access to the Tribunal. The actual or possible imposition of a costs order on an unsuccessful party will always represent a burden to access. In Hanna v City of Marion, the Tribunal noted that "access to the Tribunal is a primary objective of the SACAT Act, and the Tribunal in considering whether to award costs must take into account the impact the possibility of a costs order may have on the objective of accessibility";
8. matters in the Tribunal should be conducted efficiently and in a manner proportionate to the dispute (that is, legal costs and other costs should be reasonable and proportionate to the importance and complexity of the issues in dispute). A person representing a party in proceedings must use their best endeavours to facilitate the just, quick and cheap resolution of the real issues in proceedings;
9. section 57(2)(b) indicates that costs should only generally be awarded where a party has been disadvantaged by proceedings that have little or no merit as proceedings can be used by one party to achieve ends other than to resolve legal disputes. These are matters brought before the Tribunal that are unlikely to succeed and where that is known or ought to have been known by that party, and brought or argued frivolously or vexatiously. This generally suggests that s 57(2)(b) is relevant where unmeritorious proceedings are brought by the applicant;
10. lack of merit is not measured by lack of success where there is a legitimate dispute requiring adjudication; or that a decision was made without power or there was an error in the administrative decision-making process that was not intentional or reckless;
11. the ability under s 57(2)(d) to take into account any other relevant matter means that there is a wide discretion to consider a range of facts, circumstances and behaviours (including the nature of the proceedings, the complexity of the proceedings and the conduct of the parties) when determining whether it is appropriate to make a costs order;
12. the conduct of a party in knowingly exploiting an advantage unfairly, or otherwise acting inappropriately, unreasonably, unfairly or oppressively, may be relevant to a costs application;
13. there is no reason to treat the success or failure of a public authority differently from the success or failure of a private party. However, it is sufficient to enliven the discretion to award costs if a government agency persists with defending what should, on proper consideration, be seen to be a decision without merit, and this is relevant to whether the applicant's costs have been kept to a minimum;
14. the reference to "proceedings" in s 57 means the review proceedings in the Tribunal not the decision under review; and
15. in contrast to most proceedings in the Tribunal's review jurisdiction, disciplinary proceedings are more akin to inter partes proceedings where an award of costs is usual in favour of a successful party.

1. I generally accept and adopt that summary of the decisions apart from two important qualifications. I do not agree with the proposition that SACAT is a 'no costs jurisdiction'. In Tronnolone v Edwards & Bryan Justice Parker observed that the Tribunal is "generally" a no costs jurisdiction. I note that His Honour was there considering whether costs should be awarded in the residential tenancies division of SACAT where, given the nature of the jurisdiction, costs are rarely awarded. In my view, the point being made in that decision was that the starting point under s 57 is that each party should bear its own costs (i.e., no costs are to be awarded). I understand that it was in that sense that His Honour was using the phrase a "no costs jurisdiction".
2. Further, I do not accept the proposition that costs will only be awarded by the Tribunal in 'exceptional circumstances'. The Tribunal's discretion to award costs in s 57(2) of the SACAT Act in 'appropriate circumstances' is not further constrained to only being awarded in 'exceptional circumstances'. Member A Files used that term in Hoare v Registrar of Firearms, where he was considering the award of costs in administrative review proceedings, citing Stratford v District Council of Tumby Bay and SAHT v Brady & Milera. However, I note that that terminology was not used by the Tribunal members in the original decisions cited by Member Files.
3. In SAHT v Brady & Milera President Hughes J observed:

It must be borne in mind that the overarching principles are that parties bear their own costs unless it is appropriate for the Tribunal to make an order. None of the factors that must be considered overrides the general proposition. > > The main objectives of the Tribunal are set out in s 8 of the SACAT Act. Whether a costs order is made is to be informed by these objectives and how a costs order will reflect or further those objectives. > > ...The Tribunal's ability to take into account any other relevant matter connotes the wide discretion in the Tribunal to consider a wide range of facts, circumstances and behaviours when determining what is appropriate in making an order.[38]

4. I agree with Senior Member Rugless that these are the broad principles that apply when considering a costs application in proceedings taken under the EO Act.
5. In particular, I agree with the Senior Member's view that the Tribunal is not a no-costs jurisdiction and that the Tribunal's discretion to award costs is not constrained to only being awarded in exceptional circumstances. Clearly, the legislature conferred a power on the Tribunal to award costs if satisfied that it was appropriate to do so after taking into account the matters enumerated in s 57(2).

Costs where proceedings are conducted by a litigation guardian

1. Unlike the rules of the higher courts in this State,[39] there are no provisions in the SACAT Act or the SACAT Rules about costs where proceedings are partly or wholly conducted by a litigation guardian on behalf of a minor.
2. Regard therefore needs to be had to the general law. Here, a litigation guardian is sometimes referred to in the caselaw as a "next friend" or a "tutor" and the minor is sometimes referred to as an "infant".
3. There is no immunity from a costs order where proceedings are taken by a litigation guardian on behalf of a minor.[40]
4. Also, in NSW Insurance Ministerial Corporation v Abualfoul, the Federal Court relevantly said:

1. ... Under the general law, because of an infant's inability to bind himself or herself, or to incur liability for costs, the infant was incapable of bringing an action without the assistance of some other person responsible to the court for the proper conduct of the suit: Daniell's Chancery Practice (7th ed, 1901), 116. This person was known as the next friend (or "prochein amy" in the earlier cases), apparently because he or she was usually a near relative of the plaintiff. ... 2. One reason for requiring an infant plaintiff to sue by a next friend was so that there would be a person answerable to the defendant for the costs of the litigation, although the defendant could waive this benefit: Daniell's Chancery Practice, at 116; Ex parte Davis [1901] NSWStRp 71; (1901) 1 SR (NSW) 187, at 189. The next friend was liable for all costs incurred in the actions brought by the infant, until the infant attained his or her majority: Bligh v Tredgett [1851] EngR 903; (1851) 5 De G & SM 74; 64 ER 1024; Simpson on the Law of Infants (3rd ed, 1909), 391. The next friend could be attached for the non-payment of the costs of an action in which the defendant obtained a verdict: Radford v Cavanagh [1899] NSWLawRp 11; (1899) 15 WN (NSW) 226. However, the next friend was ordinarily entitled to recover the costs from the infant's estate (if there was one), provided he or she acted bona fide: Pritchard v Roberts [1873] UKLawRpEq 173; (1873) LR 17 Eq 222.

5. Where an infant plaintiff attained his or her majority, the infant could elect whether or not to proceed with the litigation. The infant was taken to have elected to proceed if he or she did anything which could reasonably be considered an adoption of the proceedings: Baile v Baile [1872] UKLawRpEq 39; (1872) LR 13 Eq 497, at 508, per Wickens VC. If an infant plaintiff came of age and carried on a suit instituted in his or her name, the plaintiff became responsible for all the costs of the suit: Bligh v Tredgett, at (ER) 1026, per Parker VC.[41]
6. In making a costs order where proceedings are taken on behalf of a minor party who attains their majority during the proceedings, it seems from the cases that it is not essential for the order to apportion costs as between the litigation guardian and the former minor.[42] It seems to be adequate to make the order against the former minor.

1. The respondents' submissions on costs incorporate their interlocutory application of 14 June 2024 and Mr Connell's supporting affidavit of 13 June 2024.
2. The outline of argument filed on 11 December 2024 asserted that the proceedings initiated by the applicant were frivolous, vexatious, lacking in foundation and merit, and amounted to an abuse of process and that an award of costs on an indemnity basis would be appropriate.

1. The applicant has from the outset expressed his clear opposition to a costs order. He considers all costs should be borne solely by the respondents "regardless of the outcome of the proceedings" and that the engagement of Mr Connell was unnecessary.[43]
2. I place no weight on the submission that Mr Connell's engagement was unnecessary. Under s 56 of the SACAT Act, the respondents had a right to be represented by counsel (as did the applicant). The substantive Complaints proceedings were complex, they involved multiple respondents and a variety of claims made against them under the EO Act. There was a background of considerable other litigation between the parties. Substantial compensation in the amount of $250,000 was sought against them. There can be no criticism of the respondents choosing to be legally represented in the proceedings.
3. The applicant filed two Outlines of Argument (Outline), both dated 27 January 2025, in respect of the respondents' costs application.
4. The applicant's first Outline asserts that Mr Connell acted in certain Magistrates Court and Supreme Court proceedings "without authorisation". This is irrelevant to this costs application and I place no weight on this submission.
5. The first Outline also reagitates complaints made previously about the contents of Mr Connell's affidavit of 13 June 2024, in particular that it makes untruthful statements and that Mr Connell cannot sign an affidavit for other parties. I have closely considered Mr Connell's affidavit and the applicant's voluminous response to it dated 23 July 2024. Neither of those documents assisted me significantly in making my decision on the respondents' costs application.
6. The applicant's second Outline makes a number of references to matters that are essentially irrelevant to this costs application, including the events occurring at the fifth directions hearing on 14 May 2024 and the erroneous assertion that, by my Fifth Directions, I had dismissed the Litigation Guardian in my Fifth Directions (when I had in fact simply remarked on the legal consequences of the applicant attaining his majority in July 2024).
7. The applicant asserts in his second Outline that:
   1. On 14 July 2024, when I transitioned from being a minority to being an adult, I was never asked by SACAT members if I wanted to adopt the above procedure [sic, "proceedings"].
   2. I was never given the opportunity to comment or give any statements on the case in numerous hearings between 23rd September 2023 and 29th October 2024.
   3. That's why I decided not to adopt the case and not pursue it further. I have reported this to SACAT, Mrs Ward, in writing. An order was issued on 29 October 2024. The proceedings were then dropped.
   4. On 29 October 2024, the SACAT procedure was ended with the issuance of the corresponding order.
   5. For non-adopted Tribunal or Court cases, the process should be dropped. The question of costs was not addressed at all.
8. The answer to the above submissions is that between the commencement of the proceedings in August 2023 and 14 July 2024 (when the applicant attained his majority), the proceedings were prosecuted on his behalf and in his interests by the Litigation Guardian and the proceedings were still in their early procedural stages. From 14 July 2024, there were no hearings other than the seventh "on the papers" directions hearing on 25 July 2024 on the stay applications that the applicant had filed in person. I note also that, on the eighth directions hearing on 28 January 2025, which was conducted by telephone, and I asked to speak to and did speak to the applicant in person.
9. It is not clear to me if the above is a submission by the applicant that he did not approve or adopt the proceedings and should not be liable for costs. If that is the case, I would find this submission to be somewhat disingenuous given that the applicant personally attended each directions hearing, displaying considerable interest in the proceedings, and that after he attained his majority he filed documents and signed affidavits in his own name. I note also that in the First Further and Better Particulars, which was counter-signed by the applicant and both his parents, it was asserted that the proceedings reflected the applicant's wishes. At no time prior to the filing of the withdrawal notice by the applicant on 25 October 2024 did the applicant indicate that he did not approve of the proceedings taken in his name.
10. In any event, as I discussed above, the law is clear that costs can be awarded against a minor where proceedings are conducted by a litigation guardian on behalf of the minor. And, as I noted, a minor can be held liable for costs reaching back to the outset of the proceedings if the minor adopts the proceedings on attaining their majority. I am satisfied that the applicant has conducted himself in a manner that can "reasonably be considered an adoption of the proceedings".[44]
11. However, more to the point, my independent researches have not identified a legal principle that would permit the minor to immunise themselves from an adverse costs order by withdrawing the proceedings when they attained their majority.
12. The applicant's second Outline also referred to the usual position under s 57 of the SACAT Act that parties bear their own costs in Tribunal proceedings. The applicant submitted that Tribunal proceedings end when a decision is made and recorded and that EO Act proceedings cannot be reviewed by the Tribunal. Except for what I say below, there is nothing controversial about these submissions.
13. The applicant concluded his second Outline by submitting that:

I have not received any letter or anything similar from Mr Connell about this new reopening of the proceedings. I do not agree to allow a new reopening of the proceedings.

14. This appears to be a submission that the proceedings ended for all purposes when I made my dismissal order on 29 October 2024, and that the respondents could not make a costs application after that dismissal without his consent[45] or that I could not consider a costs application after the dismissal order.
15. I disagree with this submission.
16. It is common in courts and tribunals for the decision-maker to make a final finding on the substantive issues between the parties and then hear the parties on the matter of costs. If Parliament sought to make different provision for the Tribunal, it would have been simple to do so. However, there is no express or necessarily implied provision in the SACAT Act that would prevent a costs order from being made after the substantive portion of the proceedings are finalised. In fact, the terms of s 57(3) are clear that, in some circumstances where the Tribunal has finalised proceedings by dismissing them or striking them out (which does not include when they are withdrawn), the Tribunal should make an order for costs unless there is a good reason not to in the circumstances of the particular case.
17. In short, under the SACAT Act, the withdrawal of proceedings does not immunise the withdrawing party from an adverse costs order. However, the fact that the party has withdrawn the proceedings prior to the full hearing is a matter that should be given weight in their favour in an assessment under s 57.

1. There are no costs provisions in the EO Act, so this matter is to be determined by reference to the general costs provisions in the SACAT Act as discussed in the published decisions of the Tribunal regarding the award of costs under the SACAT Act.
2. I turn now to consider the matters in ss 57(2)(a) to (d) of the SACAT Act.

Section 57(2)(a) - the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as is just and appropriate

1. For the reasons I have set out in the next section of this document, it ought to have been evident to the applicant from an early stage in the proceedings that the vast majority of the Complaints was misconceived, and could not hope to succeed, because the allegations did not fall within the ambit of the EO Act.
2. In view of the information made available to the applicant, he was in a position where he should have realised that 47 out of 49 of his allegations were not going to succeed and should be abandoned. Yet, the applicant did not withdraw these proceedings until some 14 months had elapsed from when the Commissioner's referral was received in the Tribunal.
3. I must take into account that the applicant unnecessarily prolonged and complicated these proceedings and did not prosecute the proceedings in a manner that kept costs to parties to a minimum insofar as is just and appropriate.

Section 57(2)(b) - the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit

1. I discuss first whether the proceedings were conducted fairly and secondly the merits of the proceedings. As recognised by the Tribunal in the Nguyen decision, s 57(2)(b) is relevant where unmeritorious proceedings are brought by the applicant.
2. In view of the latitude that should be afforded an unrepresented and unsophisticated litigant in better particularising their complaints under the EO Act, I have closely considered all the materials filed by the applicant in the Tribunal as his "pleadings", and not only the First Further and Better Particulars and the Second Further and Better Particulars. I have considered the contents of each of the interlocutory applications made by the applicant in these proceedings and his various affidavits as they tended to include substantive matters. This approach reflects:

the need for any court or tribunal dealing with a claim made by an unrepresented party to exercise particular care to consider carefully whether the claim may have some possible merit notwithstanding gross deficiencies in the manner in which the case has been presented.[46]

3. It is fair to say that the applicant's pleadings are in considerable disarray.
4. However, as will be seen below, the difficulty with the Complaints is not the state of their particularisation but that the vast majority of the allegations in the Complaints are not matters that are within the ambit the EO Act.

Fairness of proceedings - the applicant was afforded procedural fairness

1. At the Litigation Guardian's request, a German interpreter was in attendance at all directions hearings, save for the directions hearing on 10 October 2023 and, of course, all those directions hearings conducted "on the papers".
2. An interpreter was not requested by the Litigation Guardian until 4.40 pm on the afternoon prior to the 9.30 am listed start for the directions hearing of 10 October 2023. Despite endeavours made by the Registry, an interpreter was unable to be secured at such short notice. I found the Litigation Guardian to have good command of English and was satisfied that the directions hearing could fairly proceed that day without an interpreter.
3. Throughout the proceedings, the Litigation Guardian elected to avail himself of the assistance of the interpreter only when he sought that assistance himself. Otherwise, the directions hearings were conducted in English by me and by the Litigation Guardian.

1. The duties of courts and tribunals where there are unrepresented parties before them are well- settled.[47]
2. An unrepresented party suffers disadvantage and that disadvantage can be compounded by the need for the party to have an interpreter. In essence, the role of the Tribunal is to aid the unrepresented party to understand what is required of them to run their case "without losing the perception of impartiality so important to the discharge of the judicial function".[48]

Information provided to applicant and Litigation Guardian

1. It was evident from early in the proceedings that the Litigation Guardian was not receptive to information I was communicating to him during directions hearings. This is not uncommon or unexpected where a party or representative is not legally trained and where, as here, they are a person whose first language is not English. I was also not satisfied that the language barrier was sufficiently overcome by the Litigation Guardian's choice only to use the interpreter when he felt he needed that assistance.
2. For these reasons, I considered throughout these proceedings that the Litigation Guardian did not appreciate the complex nature of the proceedings that he was conducting on behalf of the applicant; the procedural steps that had to be followed; and the risk of costs.
3. Also occasionally there was not enough opportunity in the time allocated for the directions hearing to cover all necessary issues.
4. Therefore, instead of what in most cases in Tribunal proceedings is ordinarily no more than a brief narrative summary of a hearing, some of the directions I issued contain an extensive discussion of procedural matters relevant to the proceeding. These are explained in detail in Part B of these reasons.

Rejection of assertion that the Litigation Guardian was "not allowed to speak"

1. A directions hearing is in the nature of an informal hearing to discuss with the parties the future conduct of the proceedings and the procedural steps that ought to be taken to ready the matter for the full hearing.
2. The Litigation Guardian has asserted on several occasions that I did not let him speak during directions hearings and that I "permanently banned" him from speaking on and from the second directions hearing, with the result that he, the applicant and ZLE could "not say anything".[49] It was asserted in the First Further and Better Particulars that this was discrimination and a punishment for the applicant filing the Complaints in the Tribunal.
3. However, during directions hearings, the Litigation Guardian did not engage with or confine himself to procedural issues and would frequently make submissions on other topics, often the applicant's substantive grievances against the respondents. Similarly, there were occasional interjections from the applicant personally and his mother that were unhelpful and essentially irrelevant to the procedural purposes of the directions hearings. It was necessary to regularly curtail those departures and to bring the Litigation Guardian back to the procedural matters at hand.
4. It is fair to say that Mr Connell and Mr Belperio made minimal contribution to the directions hearings as the time allowed for each hearing was consumed by the mutual interactions and discussions between me and the Litigation Guardian.
5. I therefore reject the various assertions that I did not allow the Litigation Guardian to speak and banned him from speaking during directions hearings. I reject the assertion that the Litigation Guardian, the applicant and ZLE could not say anything during directions hearings. This constitutes a substantial deviation from what actually occurred at the directions hearings. I reject the assertion that the applicant was being discriminated against or punished by the Tribunal.

1. I am satisfied that adequate information was given to the applicant (via the Litigation Guardian) about the nature of the proceedings before the Tribunal and the case he had to meet.
2. I am satisfied that he was afforded adequate opportunity to particularise his allegations and I note the voluminous material that he filed in the Tribunal.
3. I am satisfied that the applicant and Litigation Guardian were aware of their entitlement to obtain legal advice and representation and were afforded an adequate opportunity to do so.
4. For these reasons, I am well satisfied that the applicant and Litigation Guardian were afforded procedural fairness in respect of both the procedural steps they would need to take to prepare these proceedings for a full hearing, the onus on them to prove the matters alleged against the respondents, and the costs risks.

The crux of the applicant's assertions against the respondents

1. As best as I can make out from all of the materials provided by the applicant to the Tribunal, the applicant's grievances against the respondents would appear to stem from about October 2022 when 5EBI engaged in promotional advertising of the applicant's programs and those of other broadcasters that the applicant did not agree with and objected to. This advertising was apparently not ceased even though the applicant made his objections known to those in control of the radio station and it continued for several months.
2. The applicant also asserts that, in about January 2023, after having been a member of 5EBI for some years, the applicant's membership was revoked as the Constitution did not permit a minor to be a member. Further, the applicant's on-air programs were suspended.[50]
3. In broad terms, the applicant variously claims that the advertising was racist; that his intellectual property has been misused; that derogatory noises were often broadcast in connection with the applicant's programs (a reference to the African music referred to earlier and also to some Russian music);[51] that this was victimisation of him by the respondents; that he was racially defamed, abused and harassed by the respondents; that he has suffered emotional and psychological harm; and that Mr Connell allowed the acts of abuse and victimisation to continue. The applicant claims that he has lost his financial investment in broadcast training, broadcasting fees and donations to 5EBI.
4. It is fair to say that the various filed documents submitted by or on behalf of the applicant are expressed in vehement terms and indicate there is a substantial grievance against the respondents. However, as purported Complaints under the EO Act, the applicant's case is deeply misconceived.
5. Also, the applicant asserts against one or more of the respondents various acts contrary to the Age Discrimination Act 2004 (Cth); Associations Incorporation Act 1985; the Australian Solicitors Conduct Rules; the Criminal Law Consolidation Act 1935; the Defamation Act 2005; the Intervention Orders (Prevention of Abuse) Act 2009; and the Privacy Act 1988 (Cth). I infer from contents of the parties' various filings in the Tribunal that there have been other proceedings against the respondents commenced in the courts by or on behalf of the applicant. These are irrelevant to the matter I must decide.

Peek v SA Water - some relevant principles for assessment of merits under s 57(2)(b)

1. The decision in Peek concerned an application for summary dismissal. The present matter concerns an assessment of the factors under s 57(2)(b) of the SACAT Act, namely the merits of proceedings, where proceedings were withdrawn. These matters are essentially different, but analogous.
2. I consider that what the Tribunal President said in Peek would assist me in an assessment under s 57(2)(b) and I respectfully adopt the following passages.
3. In Peek, her Honour said (my underlining):

1. ... there are circumstances associated with tribunal proceedings generally and with proceedings brought under the EO Act that militate against the use of summary dismissal too readily. 2. Pleadings are usually minimal and in a 'lay' form. The scope of an equal opportunity proceeding is determined by the Commissioner's referral, which is often described in a paragraph. Interlocutory stages of the proceedings are truncated. An emphasis is placed on bringing the proceedings to a substantive hearing and allowing the Tribunal to guide the parties to adduce the evidence relevant to the issues that require findings and matters of law that must be determined. Hearings tend to be shorter than in court proceedings and evidence adduced is sometimes not foreshadowed by parties, requiring the Tribunal to achieve the necessary procedural fairness "on the run" and in accordance with the particular issues and context. 3. It is not uncommon, in a substantive hearing on an equal opportunity matter and in other matters before the Tribunal, for the issues in dispute to develop from their barely-described origins in whatever amounts to the pleadings, by the parties responding to the decision-maker's questions, by being directed to elicit evidence on the issues that are required to be the subject of findings of fact, or having submissions elicited from them on questions of law, during the hearing itself. This is simply a function of the manner in which the Tribunal operates to ensure that disputes are determined by the application of the relevant legal principles to the facts as they are capable of being found on the evidence presented. 4. Where an application for summary dismissal is made by a respondent, it is important for the Tribunal to consider whether the applicant in the proceedings has, by virtue of ignorance or other unfamiliarity with legal process, failed to articulate his or her case but that it would be appropriate to allow the applicant to remedy that during the substantive hearing of the matter. 5. The test for summary dismissal is not altered by these matters. The test is whether the complainant's case is unarguable or could not be established. The test to be applied by the Tribunal on application for summary dismissal at an early stage is onerous.

62. On an application it is relevant to consider:

1. Whether the parties are represented,
2. The nature of the claim,
3. The detail in the documents that provide the equivalent of a pleading,
4. The opportunities that the applicant has had to remedy any alleged defect in the claim and to make submissions regarding the application for summary dismissal,
5. Whether the proceedings are to be determined solely on a matter of statutory interpretation or jurisdiction or other issue of law, or whether there is a significant factual dispute,
6. The likely length and complexity of the proceedings,
7. When the substantive matter can be heard.

1. The task of determining whether the test is met is difficult and must be approached cautiously. In many cases, it will not be appropriate to entertain it because the task is unlikely to be able to be carried out in a manner that yields an answer, or the task will entail as much or more in resources than would be required to determine the whole of the matter. Further, the obligation of the Tribunal to determine matters by reference to their substantive merits, subject to other powers and obligations including the power to summarily dismiss in appropriate circumstances, indicates that the Tribunal is obliged to place value upon giving the parties an outcome on the substance of the application.
2. On receipt of a written or oral application for summary dismissal, it is necessary to decide whether the proceedings, which might be wholly disposed of in a single hearing of several hours duration, should be fragmented so as to consider summary dismissal. Further, consideration will often be given to whether the technicality associated with the application of the principles applicable to a summary consideration should be avoided, observing that the outcome might be one in which an unrepresented unsuccessful party is left misunderstanding the process.
3. In light of these factors, more often than not, the Tribunal will not grant an application for consideration of summary dismissal but will proceed to hear all of the issues at once in a substantive hearing conducted within a reasonable timeframe from the initial lodgement. Summary dismissal should not be entertained where the complaint is defective in a manner that does not go to its substance. As Kyrou J said in an equal opportunity proceeding under the Victorian scheme:

it is obviously desirable that a complainant be held to the manner in which they define their complain and conduct their proceedings before the Tribunal. Clearly, a complainant should not be permitted to deviate from their complaint if the deviation would cause the Tribunal to exceed its jurisdiction, result in a breach of the rules of natural justice or cause the Tribunal to commit some other error of law. Where, however, the issues before the Tribunal are well understood by the parties and the Tribunal, a dismissal of the complaint on the basis of the label that the complainant used to describe the complaint or a feature of the complaint should be avoided unless this is mandated by law.

4. In considering an application, and in the absence of pleadings, the Tribunal can have regard to affidavit material or other material properly received relevant to consideration of whether a valid complaint of a contravention of the Act has occurred that has some prospect of success.
5. Once it has been decided that it is appropriate to consider an application for summary dismissal as a preliminary point, it is not for the Tribunal to create a case for an applicant or to speculate or assume that the applicant's evidence will improve. The applicant must identify their arguments on issues of law, and identify their evidence on matters in relation to which proof is required, for the assessment of whether there is a reasonable prospect of success.
6. In some circumstances there is reason for the Tribunal to be more receptive to a request to consider an application for summary dismissal. Those are cases in which the claim contains elements in respect of which the respondent bears an evidential burden. Where a respondent bears an evidential burden, there is a greater case for ensuring that the applicant has a prima facie case before the respondent is obliged to meet the claim.
7. In this case, there were two discrete bases upon which the application was brought. The first concerned whether the complaint insofar as it makes a claim of discrimination based on age, is within the Tribunal's jurisdiction. The second is whether the complainant has provided an adequate basis to proceed to a hearing in light of the matters that the complainant has to prove and the burden on the respondent to establish that the discrimination, if established, was reasonable.

8. In these proceedings, consideration of the respondent's application for summary dismissal is appropriate because:
   1. The jurisdictional issue associated with the claim of age discrimination is a confined question of law that can be resolved without a hearing;
   2. The statutory criteria direct the applicant to what he must prove in respect of the claim of indirect discrimination based on disability, so it is possible to examine the complainant's case against those criteria;
   3. One of the statutory criteria created an evidential burden for the respondent that is only required to be met if the complainant establishes he has been discriminated against;
   4. The proceedings had already had some directions hearings and the applicant had had several opportunities to indicate the evidence on which he relied;
   5. There is no evidence that the applicant requires further assistance to understand what is required of him.
9. Her Honour decided in Peek to grant the application for summary dismissal. Her Honour then said:

It should be borne in mind that such an outcome will not always follow from a failure to adduce evidence on the matters required to be proven in a complaint of discrimination. Nor will it often be appropriate for an application for summary dismissal to be brought. Bearing in mind the Tribunal's flexible approach to proceedings, the lack of pleadings, the beneficial nature of the legislation and the fact that complainants are often unrepresented and lacking in understanding of this complex legislation, it will more often than not be appropriate for the Tribunal to allow a matter to proceed even where the complainant's case is unclear and some evidence has not been filed or foreshadowed.[52]

Merits of complaint - discriminatory advertising - s 103(1)

A person must not publish or cause to be published an advertisement that indicates an intention to do an act that is unlawful by virtue of this Act.

2. Although the applicant has objected to certain on-air advertising undertaken at the radio station, the applicant has not asserted that any of the respondents have published or caused to be published an advertisement that indicates an intention to do an act that is unlawful under the EO Act.
3. In fact, the applicant said in his First Further and Better Particulars that his complaint is "about age discrimination and victimisation and nothing else". He said in his affidavit of 23 July 2024 that he has never claimed that the second to eleventh respondents individually made acts of discriminatory advertising.[53] However, this is inconsistent with the clear implication to be derived from the "Discrimination details" section of the applicant's first and second online complaint forms.
4. The applicant's general grievances about the on-air advertising do not fall within s 103(1) of the Act.
5. I conclude therefore that the 12 complaints of discriminatory advertising against the respondents had no merit and were misconceived and lacking in substance.

Merits of complaint - victimisation contrary to s 86

1. Victimisation has a specific meaning under the EO Act. It does not have the broad meaning that a layperson might understand of that word, i.e. where a person has been treated unfairly.
2. The word "victimisation" means what s 86(2) states it means, and only that.
3. Section 86 of the EO Act states (my underlining):

(1) It is unlawful for a person to commit an act of victimisation. > > (2) For the purposes of this section, a person commits an act of victimisation against another person (the victim) if he or she treats the victim unfavourably on the ground that the victim has -

(a) brought proceedings under this Act against a person; or

(b) given evidence or information in proceedings under this Act; or

(c) made allegations that the victim or some other person has been the subject of an act that contravenes this Act; or

(d) reasonably asserted the victim's right or the right of some other person to lodge a complaint or take other proceedings under this Act; or

(e) otherwise done anything under or by reference to this Act,

or on the ground that he or she knows that the victim intends to do any of those things, or suspects that the victim has done, or intends to do, any of those things.

(3) Unfavourable treatment on the ground that a person -

(a) has made a false allegation; or

(b) has not acted in good faith,

does not constitute an act of victimisation.

1. The essence of s 86 is explained in brief terms in the Tribunal's EO Factsheet, which was provided to the applicant at the time of my Second Directions.
2. Although the applicant expressed a number of grievances about certain conduct, the applicant has not asserted that any of the respondents have committed an act of victimisation against him as that term is defined in s 86(2). The applicant's general grievances about how he feels he has been treated do not fall within s 86(2) of the Act.
3. Self-evidently, the extracts of African and Russian music and singing submitted by the applicant are not evidence of, and do not constitute, acts of victimisation for the purposes of s 86(2) of the EO Act.
4. The applicant asserts the termination of his membership of 5EBI and the suspension of his radio shows are acts of victimisation.[54] However, they also do not constitute acts of victimisation for the purposes of s 86(2) of the EO Act.
5. I conclude therefore that the 12 complaints of victimisation against the respondents had no merit and were misconceived and lacking in substance.

Merits of complaint - age discrimination in the area of employment - s 85B

1. Discrimination on the basis of age means something specific in the EO Act. It does not extend to every instance where a person considers they have been treated adversely on account of their age.
2. In respect of age discrimination generally, s 85A of the EO Act states that:

For the purposes of this Act, a person discriminates on the ground of age - > > (a) if he or she treats another unfavourably because of the other's age; or

(b) if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and -

(i) the nature of the requirement is such that a substantially higher proportion of persons of a different age or age group complies, or is able to comply, with the requirement than of those of the other's age or age group; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's age or age group, or on the basis of a presumed characteristic that is generally imputed to persons of that age or age group; or

(d) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

For the purposes of this Act, a person (the discriminator) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.

(1) It is unlawful for an employer to discriminate against a person on the ground of age -

(a) in determining, or in the course of determining, who should be offered employment; or

(b) in the terms or conditions on which employment is offered.

(2) It is unlawful for an employer to discriminate against an employee on the ground of age -

(a) in the terms or conditions of employment; or

(b) by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or

(c) by dismissing the employee; or

(d) by subjecting the employee to other detriment.

1. There are also exemptions in s 85F. Section 85F states:

(1) This Division does not apply in relation to -

(a) an employer employing a person for purposes not connected with a business carried on by the employer; or

(b) a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal.

(2) This Division does not apply to discrimination on the ground of age in relation to employment or engagement for which there is a genuine occupational requirement that a person be of a particular age, or age group.

(3) This Division does not apply to discrimination on the ground of age in relation to the employment or engagement of a person if the person is not, or would not be, able -

(a) to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or

(b) to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question.

(4) This Division does not render unlawful -

(a) acts done in order to comply with the provisions of -

(i) an award or enterprise agreement under the Fair Work Act 1994; or

(ii) a fair work instrument under the Fair Work Act 2009 of the Commonwealth; or

(iii) an award or determination given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or

(b) a decision to offer employment only to a young person, or the employment of a young person, where the rate of pay for that employment is a rate less than that applicable to an adult, fixed by or in accordance with the provisions of -

(i) an award or enterprise agreement under the Fair Work Act 1994; or

(ii) a fair work instrument under the Fair Work Act 2009 of the Commonwealth; or

(iii) an award or determination given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.

208. There are also the following relevant definitions in s 5(1) of the EO Act (my underlining):

business includes a business that is not carried on for profit;

detriment includes humiliation or denigration;

employee -

...

(b) includes an unpaid worker;

employer -

...

(b) in relation to an unpaid worker - means an organisation for which the unpaid worker performs services;

employment includes unpaid work;

unpaid worker means a person who performs work for an employer for no remuneration.

1. I note also the vicarious liability provisions in s 91 of the EO Act, which state:

(1) Subject to this section, a person is, for the purposes of this Act, vicariously liable for a discriminatory or unlawful act of an agent or employee of the person committed while acting in the course of their agency or employment.

(2) In proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee while acting in the course of their agency or employment, it is a defence to prove that the person took reasonable steps to ensure that the agent or employee would not act in contravention of this Act.

(3) Without limiting subsection (2), a defence is established under that subsection in relation to an alleged discriminatory or unlawful act if the person -

(a) had in force at the relevant time an appropriate policy for the prevention of such an act; and

(b) had taken reasonable steps to implement and enforce the policy including -

(i) reasonable steps to make the employees and agents of the person aware of the terms of the policy; and

(ii) prompt investigation of any alleged act and taking appropriate action.

1. The first thing to observe is that s 85B applies to discrimination by an employer and only by an employer. It does not apply to discrimination by persons or entities who are not employers.
2. I do not consider that the second to twelfth respondents, in any number or any combination, could be considered to be employers in relation to the applicant for the purposes of s 85B. The second respondent is or was the General Manager of 5EBI, the third to eleventh respondents are or were members of its Executive Committee, and the twelfth respondent Mr Connell is 5EBI's lawyer. They are simply employees and/or office bearers of 5EBI and, in Mr Connell's case, he is a person in a contractual lawyer/client relationship with 5EBI.
3. For these reasons, I conclude that the complaints that the second to twelfth respondents inclusive have discriminated against the applicant contrary to s 85B of the EO Act were without merit and were misconceived and lacking in substance.
4. The only conceivable proper respondent to a s 85B complaint was 5EBI (either directly or vicariously). The s 85B complaints against the other respondents were excessive and unnecessary.
5. Turning now to 5EBI, it would appear from the materials provided to the Tribunal that the applicant is not a remunerated employee or worker of 5EBI in the conventional sense. Mr Connell asserted in his affidavit that the applicant was a volunteer and had never been an employee.[55]
6. An unpaid worker (i.e. a volunteer) may nevertheless be an employee for the purposes of s 85B.
7. However, it is unclear to me whether the applicant could be considered an unpaid worker of 5EBI, namely that he performs services or work for 5EBI, or rather whether 5EBI is a platform that hosts on-air broadcasts by community groups, including the applicant, and 5EBI could be said to be providing services to those community groups.[56] Perhaps it is a combination of both.
8. I note also that paragraph 4.3 of 5EBI's Constitution, which makes provision for 5EBI's objects and purposes, states that those objects and purposes are (relevantly):

(A) to assist, arrange, conduct, make available and support broadcasting facilities for ethnic communities for the purposes of radio broadcasting. > > (B) to secure and maintain a broadcasting transmission licence for the purposes of broadcasting, inter alia, radio programs in ethnic community languages. > > ... > > (D) to work, collaborate and liaise with other community broadcasters with similar objects and purposes to the Association. > > (E) to instruct, train, educate, and provide services for the training of persons in the use of equipment and other technologies for the benefit of the Association and its members. > > (F) to encourage, provide, and facilitate access to ethnic communities for the purposes of producing and broadcasting radio programs in ethnic community languages; and to produce and support radio programs for ethnic communities and for the broader South Australian community. > > ...

9. Had this matter proceeded to a hearing rather than being withdrawn, no doubt these issues would have been clarified.
10. In any event, aside from the bald assertion in the online complaints, in none of the voluminous materials provided by the applicant to the Tribunal has the applicant alleged that any of the respondents have discriminated against him on the grounds of age in the way set out in ss 85A, 85B(1) or 85B(2) of the EO Act.
11. In fact, the applicant appeared later to disavow a s 85B complaint as he asserted he was never an employee of 5EBI and "never had a volunteer contract".[57]
12. It is therefore arguable that the applicant's complaints against 5EBI under s 85B of the EO Act were without merit and were misconceived and lacking in substance.
13. For this reason, I could not presently be satisfied that 5EBI would be directly or vicariously liable to the applicant for acts contrary to s 85B.
14. However, I consider that I should not attempt at this point in time to make a finding under s 57(2)(b) of the SACAT Act about the merits of the applicant's grievances against 5EBI under s 85B.
15. A material issue in this present matter is that the pleadings could not be considered to have closed before the applicant withdrew his Complaints. In view also of the applicant being an unsophisticated, unrepresented litigant, there was a prospect that the applicant could have added to the particularisation of his s 85B complaint against 5EBI, especially the causal nexus between the applicant's age and employment and whether the applicant could be considered an employee (or unpaid worker) of 5EBI in any event. Equally, in 5EBI's response to that complaint, it would be expected that 5EBI would address these issues and also questions of s 85F exemptions and any applicable defences.
16. This clearly does not mean that a complaint under s 85B against 5EBI, directly or vicariously, would ultimately have been successful. It is simply that, at this point in time, I am unable reasonably and fairly to make a finding on an assessment of the merits of that matter.
17. For completeness, I note that there are other provisions relating to age discrimination against workers in s 85C (discrimination against agents and independent contractors), s 85D (discrimination against contract workers) and s 85E (discrimination within partnerships). It seems unlikely on the state of the materials provided to the Tribunal that any of these other provisions would apply on the facts. But, in any event, the applicant has not provided particulars of age discrimination under any of those provisions.

Merits of complaint - age discrimination in the area of associations - s 85G

1. Section 85G of the EO Act states (my underlining):

(1) It is unlawful for an association to discriminate - > > (a) against an applicant for membership on the ground of age -

(i) by refusing or failing to admit the applicant to membership, or to a particular class of membership, of the association; or

(ii) in the terms on which the applicant is, or may be, admitted to membership, or a particular class of membership; or

(b) against a member of the association on the ground of age -

(i) by refusing or failing to provide a particular service or benefit to that member; or

(ii) in the terms on which a particular service or benefit is provided to that member; or

(iii) by expelling that member from the association or subjecting him or her to other detriment.

(2) Subsection (1)(a) does not apply to discrimination on the ground of age if the association has, on a genuine and reasonable basis, established different classes of membership for persons of different ages, or age groups.

(3) Subsection (1)(b)(i) and (ii) do not apply to discrimination on the ground of age if it is reasonable that the association discriminate in relation to the provision of a particular service or benefit to members of a particular age, or age group.

(4) This section does not apply to an association established wholly or mainly for -

(a) the promotion of the interests of persons of a particular age group; or

(b) the organisation or provision of services for persons of a particular age group; or

(c) the organisation or provision of activities for persons of a particular age group.

1. Section 85G must be read together with s 85A, which I have set out above. It must also be read together with the general exemptions in ss 85M to 85R, none of which appear to apply in this particular case.
2. Again, the first thing to observe is that s 85G only applies where an association discriminates on the grounds of age. It does not apply to a person or entity that is not an association.
3. This requires a consideration of what an association is for the purposes of the EO Act. However, the term "association" is not defined in the EO Act.
4. The ordinary dictionary definition of "association" is "an organisation of people with a common purpose and having a formal structure".[58]
5. It is well understood that, generally speaking, an association may be either an incorporated association or an unincorporated association. An association is incorporated in this State under the Associations Incorporation Act 1985. It is a separate legal entity in its own right and, for example, can sue or be sued or hold property in its own name. An unincorporated association is not a separate legal entity.
6. A question arises whether an association under s 85G must be an incorporated association or could be an unincorporated association.
7. In a recent decision of this Tribunal, a Senior Member essentially found that only an incorporated association can be the subject of a complaint under the EO Act.[59] However, it is arguable that, given the beneficial objects of the EO Act to protect and enforce human rights, the term "association" should be interpreted liberally to also extend to unincorporated association.[60]
8. It is not necessary to definitively determine that particular question for present purposes. This is because it is only 5EBI, the first respondent, that could possibly be the subject of a s 85G complaint. 5EBI is an incorporated association. It is clear that the second to twelfth respondents inclusive are not incorporated associations. They are natural persons. Also, they are not an unincorporated association.
9. In Conservative and Unionist Central Office v Burrell, the English Court of Appeal said that an unincorporated association was:

two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and on what terms and which can be joined or left at will. The bond of union between the members of an unincorporated association has to be contractual.[61]

10. I do not consider that the second to twelfth respondents, in any number or any combination, could be considered an unincorporated association in this sense. As I observed previously, the second respondent is or was the General Manager of 5EBI, the third to eleventh respondents are or were members of its governing body, and the twelfth respondent Mr Connell is 5EBI's lawyer. They are simply employees and/or office bearers of 5EBI and, in Mr Connell's case, in a contractual lawyer/client relationship with 5EBI.
11. For these reasons, I conclude that the complaints that the second to twelfth respondents inclusive have discriminated against the applicant contrary to s 85G of the EO Act were without merit and were misconceived and lacking in substance. The only proper conceivable respondent to a s 85G complaint was 5EBI. The s 85G complaints against the other respondents were excessive and unnecessary.
12. Turning to 5EBI, I consider that there was at least a prima facie case that 5EBI discriminated against the applicant under s 85G. The Constitution of 5EBI apparently does not allow people under 18 years of age to be members.
13. The applicant of course is now 18 years of age. However, it seems that 5EBI considered that the applicant was not qualified to be a member while he was under 18 years of age.
14. Relevantly, paragraph 6 of the Constitution states the following about membership (my underlining):

6.1. Membership of the Association is open to any ethnic community language program, supportive of and willing to work towards achievement of the objects of the Association, and which intends to abide by the rules and norms set out in the provisions of this constitution. The substantive purpose of the said program must be the broadcasting via the radio medium of content in an ethnic community language. > > 6.2. Membership of the Association is open to individual persons, who also satisfy the afore-stated criteria; however, such membership shall not confer voting rights in general meetings upon the said individual member, and he/she shall be ineligible to hold elective office on the Executive of the Association. > > ... > > 6.5. In order to be accepted into membership of the Association, and/or to be able to renew the same, an applicant for membership must satisfy the Executive Committee that the following criteria have been met: > > Criteria: > > ... > > (C) (i) where the applicant is an ethnic community language program ...

(ii) where the applicant is an individual person, he/she must be at least eighteen (18) years of age, and be a person of good character who in the opinion of the Executive Committee, is genuinely interested in the affairs of the Association, shall work towards and support the achievement of its objects, and comply with the rules set out in the provisions of this constitution.

1. I cannot put it any higher than recognising there may be a prima facie case, and I certainly cannot say that the applicant would ultimately have been successful against 5EBI under s 85G. I note that these proceedings were discontinued before the respondents filed a fully particularised formal response, when they might have been expected to address this issue and ss 85G(2) to (4) inclusive.
2. For these reasons, I am unable to come to a conclusion about the merits of the complaint against 5EBI under s 85G.

Merits of complaint - aiding unlawful actions complaint - s 90

If a person causes, instructs, induces or aids another to act in contravention of this Act, both are jointly and severally liable to any criminal or civil liability arising under this Act in respect of the contravention.

2. The applicant's grievance against Mr Connell is essentially that Mr Connell did not stop the various acts of the other respondents that the applicant found objectionable.
3. As I have observed, Mr Connell is simply 5EBI's solicitor. It is uncontroversial that a solicitor generally provides advice and makes recommendations but otherwise acts on the instructions of their client. The applicant does not appear to fully understand the role of a solicitor, in particular that a solicitor cannot direct their client.
4. Certainly, there is no evidence that Mr Connell was involved in any impropriety in conjunction with 5EBI against the applicant.
5. I am satisfied that the letter Mr Connell wrote on behalf of 5EBI dated 24 February 2023 was written by Mr Connell in the performance by him of his contractual and professional duties as 5EBI's solicitor.
6. I do not accept that this alone could bring a solicitor's conduct within s 90 of the EO Act.
7. Therefore, whether or not the scope of this separate complaint against Mr Connell is limited to aiding the s 85B complaint against 5EBI, or is as broad as the Commissioner's referral suggested, the complaint was without merit and was misconceived and lacking in substance.

Merits of the interlocutory application to remove Mr Connell

1. As noted above, by letter dated 8 September 2023, the applicant raised with the Tribunal that Mr Connell should not represent the other respondents in these proceedings.
2. The Litigation Guardian raised that issue again at the second directions hearing. I told the Litigation Guardian that it was not clear to me that the Tribunal had the power to prevent Mr Connell from representing the other respondents and, if there were such a power, it would be based on established legal principles. I recommended that he obtain legal advice on the matter before making any such application to the Tribunal.
3. On 29 January 2024, the applicant filed an interlocutory application seeking the removal of both Mr Connell and (seemingly) also the firm Belperio Clark from representing the other respondents (the removal application). In my Fourth Directions, I said again that I was unaware of a principle of law that would enable the Tribunal to remove Mr Connell. I said that, at the next directions hearing, I would make directions for submissions and a hearing on the removal application (assuming that application was pressed).
4. The various grounds given by the applicant in his letter and interlocutory application were briefly that:

1. Mr Connell himself has been accused of discrimination and actively supported the actions of the "responsible EBI persons" and knowingly allowed discriminatory actions for at least six months "24/7", including racist advertising, unlawful acts of indirect abuse and emotional and psychological harm, victimisation of a minor and that, in doing so, Mr Connell breached rule 42 of the Australian Solicitors Conduct Rules;[62]

1. if the applicant wants to call Mr Connell as a witness "how is he supposed to function as the general appointed representative for the other respondents" and, in this regard, Mr Connell would need to act in accordance with rule 27.1 of the Australian Solicitors Conduct Rules;[63]

1. Mr Connell has a conflict of interest in representing himself and the other respondents; and

1. it is not certain who will pay Mr Connell's fees and (seemingly) they should not come out of 5EBI's budget.

1. The respondents' written submissions in response were provided by Mr Connell on 16 February 2024. Briefly, Mr Connell denied the existence of any conflict of interest; he asserted that the applicant could not call him as a witness because he (Mr Connell) is a party; and said that he has acted at all relevant times on the instructions of his clients. He reiterated the respondents' intentions to seek the costs of the interlocutory application and the overall substantive application.
2. The applicant's extensive further submissions of 13 May 2024 were essentially a reply to or rebuttal of Mr Connell's submissions. The applicant essentially persisted in his assertions of a conflict of interest, implying that Mr Connell has put his own interests ahead of the other respondents. The applicant again asserted that Mr Connell is personally responsible for the alleged victimisation because he "allowed" this conduct to continue.
3. In my Fifth Directions, I referred the parties to a passage in a decision of the President of the Tribunal in the FTU decision discussing the Tribunal's powers to disqualify a solicitor (a Mr Gardner) from acting for a party (FTU) in Tribunal proceedings.
4. I set out the full passage for context but the essence of the issue appears at paragraphs [14] to [19]. Her Honour said (my underlining):

1. The basis for the Board's application was set out in the Board's affidavit of Matthew Hardy dated 24 July 2019. In short, it is not in dispute that Mr Gardner, a legal practitioner currently in private practice, is a former employee of the Australian Health Practitioners Regulation Agency ("AHPRA"). He was an employee there for a period of about four years. He was an employee at the time that AHPRA commenced conducting its investigation into FTU on behalf of the Board. He was supervisor of a team that included staff that conducted that investigation that led to the substantive proceedings. 2. The Board submitted that Mr Gardner continues to have a duty to AHPRA and to the Board to advance the legal best interests of each in this matter, and a duty of confidentiality with respect to information gained in the course of administration of the National Law. 3. Mr Gardner deposed in an affidavit of 28 July 2019 that he has not provided any information that he gained through his employment with AHPRA, to FTU. Further, that he "recalls very little" about it. Given, he says, that the engagement is solely for the purpose of the suppression application, the Tribunal should not refuse him permission to appear. 4. Parties appearing before the Tribunal have a right to be represented in proceedings before the Tribunal subject to any provision of an Act under which the proceedings are brought curtailing that right: South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act"), s 56. Section 56(4) provides that a person may not act as a representative in proceedings before the Tribunal if the person is a legal practitioner whose practising certificate has been suspended, their name has been struck off the roll of legal practitioners or the person would be acting in any other manner that is inconsistent with disciplinary proceedings that have been taken under the Legal Practitioners Act 1981. None of those exclusions apply in this matter. 5. Unlike a court, the Tribunal has no supervisory relationship in respect of legal practitioners. Whereas the Supreme Court has an inherent jurisdiction over legal practitioners who are officers of the court, this Tribunal has no such jurisdiction. Nor does the Tribunal have a Magistrate's common law power to control proceedings such as to be able to prevent a practitioner from appearing in a particular proceeding on a particular occasion: Rothschild v Mullins & Anor. 6. The Tribunal has no jurisdiction to control and deal with members of the legal profession or to ensure that the administration of justice is not brought into disrepute by the conduct of practitioners. A court may restrain a legal practitioner from continuing to act for a party to the litigation if a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case and the litigation might conflict with the practitioner's duty to keep the information confidential and to refrain from using that information to the detriment of the former client. 7. In Rodny v Stricke, the Appeal Panel of the NSW Civil and Administrative Tribunal was required to consider an appeal relating to orders that a legal practitioner not be authorised to appear for a party. However, in those proceedings, the parties had no right to legal representation. A party was required to be granted permission to be represented. The Tribunal said:

While it is correct that the Tribunal (including the Appeal Panel) has no general power to restrain an Australian legal practitioner from acting for a particular party, and has no inherent jurisdiction to regulate the conduct of an Australian legal practitioner, nonetheless the Tribunal is entitled to have regard to these factors in considering whether, in all the circumstances, a particular Australian legal practitioner should be permitted to represent a party. This is because it is required to ensure the just, quick and cheap resolution of the real issues in dispute and in doing so is entitled to ensure that its processes are not used in a manner which deprives a particular party of the lawful entitlements in the conduct of the case or protection of their legal rights in so far as they might be adversely affected in an inappropriate way by what occurs in Tribunal proceedings. Again, this was not a matter in dispute in this appeal.

5. The Tribunal adopts this analysis. There is no inherent power to control whether a practitioner appears but the Tribunal may determine its own procedures: s 43 SACAT Act. This may include issuing directions for the "fair conduct of the proceedings". It is by reference to that measure that I consider that FTU is allowed to continue with her chosen representative.
6. The question for the Tribunal is not whether Mr Gardner is in breach of any obligation to the Board or his former employer, but whether the Tribunal ought deny FTU the opportunity to proceed to have her application heard with the legal practitioner she has engaged. There was no danger that the suppression application was not able to be properly argued by virtue of her having Mr Gardner act for her. There was no suggestion that the Tribunal would not be able to reach an appropriate decision, or that the parties' positions were in fact compromised, by Mr Gardner acting for the applicant in respect of this application. The Tribunal is not concerned with the wider supervision of the legal profession or the dispute that Mr Gardner and his former employer may have regarding his acting for FTU. It is concerned with the timely, fair disposition of the substantive application. Accordingly, I am satisfied that the matter could proceed with Mr Gardner acting for FTU in the proceedings.
7. A full copy of the FTU decision was sent to the applicant. I said in my directions that the parties may wish to have regard to this decision in any further submissions they may wish to make on the applicant's interlocutory application to remove Mr Connell.
8. No submissions were received from either party addressing the FTU decision.
9. Ultimately, in view of the withdrawal of the proceedings before the Tribunal by the applicant, no decision needed to be made by me on the interlocutory application.
10. However, I consider that it is relevant to this costs application to consider the merits or otherwise of this interlocutory application given that the respondents were put to the effort and expense of responding to it.
11. I have had regard to her Honour's observations in the FTU decision and also the objects of the Tribunal in s 8 of the SACAT Act, which I have set out previously.
12. In my view, the applicant's removal application was misconceived, lacking in substance and had little merit.
13. Some of the grounds given by the applicant in his letter of 8 September 2023 and in the removal application (if Mr Connell were to give evidence; any conflict of interest; and the payment of fees) are essentially matters for the respondents.
14. As I noted above in respect of the s 90 complaint, the applicant misunderstands the role of a solicitor and there is no evidence that Mr Connell was involved in any impropriety in conjunction with 5EBI against the applicant.
15. There would have been no reason to deny the first to eleventh respondents the opportunity to have the substantive Complaints dealt with in the Tribunal with the legal practitioner of their choosing.
16. The timely and fair conduct of the proceedings were not likely to be compromised by Mr Connell acting for all respondents. In fact, the contrary would more likely be true, that it would have been more efficient and cost effective for Mr Connell to represent them given his prior knowledge of the dispute between the parties and that all 12 respondents (including himself) faced essentially the same grievances in the Complaints.
17. In my view, if I had made a decision on this interlocutory application "on the papers", as I had indicated I would in my Sixth Directions, I would have dismissed the application to remove Mr Connell. If the applicant had pressed his application on the same grounds against any other lawyer in the firm Belperio Clark, I would have dismissed the application.

Section 57(2)(c) - any provision made by the rules

1. Rules 27, 101 and 102 of the SACAT Rules address some of the procedural requirements for costs applications but do not add to the factors the Tribunal needs to consider in determining an application for costs.

Section 57(2)(d) - any other matter considered relevant by the Tribunal

1. As I observed above, the EO Act has a human rights character.
2. The long title of the Act states that it is an Act to:

... promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters.

3. In the Nguyen decision, Senior Member Rugless extensively considered this special nature of proceedings taken under the EO Act and how that bears on a costs application in this Tribunal.[64]
4. Senior Member Rugless concluded that she would approach the award of costs in the usual way under s 57 of the SACAT Act and that she was not persuaded to apply a different approach making special allowance for the nature of the proceedings.[65]
5. While the Nguyen case involved allegations of sexual harassment in the workplace, the Senior Member's extensive discussion of principle, of prior decisions in this State and of interstate decisions, was not so confined.
6. In my view, the Nguyen decision stands for the proposition that costs matters under the EO Act are to be dealt with under s 57 of the SACAT Act with no special allowance or treatment to be given due to the nature of the special human rights context of EO proceedings.
7. On the contrary, Senior Member Rugless found that:
   1. The High Court in Burns v Corbett observed that equal opportunity proceedings are inter partes proceedings (a dispute specifically between parties with interests to assert) where the role of a court or tribunal is to resolve the dispute between parties and where the final orders may include the making of an award of compensation.
   2. The usual approach in inter partes civil proceedings is that costs follow the event, i.e., that the unsuccessful party bears the costs of the successful party as well as its own costs.[66]
8. The Senior Member adopted this in her assessment of the s 57(2)(d) factor in the Nguyen case. She explicitly said that "the nature of proceedings under the EO Act are inter partes matters akin to civil litigation where costs would usually follow the event".[67]
9. Although the present matter involved a dismissal upon a withdrawal of proceedings, not a finding after a full hearing as in Nguyen, I will take the same approach. Where the appropriateness standard is satisfied under s 57 of the SACAT Act, the special human rights nature of proceedings under the EO Act does not immunise a party from an award of costs.

1. I have taken into account that a costs application made against an unrepresented lay party by 12 represented respondents should not be treated lightly.
2. I have also taken into account that the apparent menu-type nature of the online complaint process in the Commissioner's office may lend itself to the making by a layperson of excessive complaints. In this regard, I have taken into account the apparent disavowal by the applicant of the discriminatory advertising complaints and the s 85B employment discrimination complaints.
3. However, in this particular case, I do not give significant weight in the applicant's favour to this purported disavowal. I consider that the applicant was well informed of the nature of the various complaints he had made to the Commissioner. The online complaints speak for themselves. Also, I explained in my Second Directions and Fourth Directions[68] that the referral included complaints of discriminatory advertising and age discrimination in employment. A copy of the referral bundle was provided to the applicant following the fourth directions hearing. It is disingenuous for the applicant to later purport to disagree that the Complaints extended to discriminatory advertising and age discrimination in employment. The applicant took no steps to amend his Complaints to exclude these grounds. His ability to do so was brought to his attention in my Fourth Directions. The applicant had ample opportunity to realise that, in the most part, they could not succeed.
4. I have taken into account that the respondents did not oppose the various adjournments granted to the applicant and did not make their interlocutory application to strike out the Complaints until June 2024.
5. As I noted above, the voluminous materials filed by the parties in these proceedings have disclosed that there have been multiple proceedings by or on behalf of the applicant against one or more of the respondents, including in the Magistrates, District and Supreme Courts and the Court of Appeal. I give some small weight to the likelihood that, although the applicant and Litigation Guardian were unrepresented in these proceedings, they are not wholly strangers to legal procedures. This is suggested also by the applicant's numerous ad hoc filings and interlocutory applications in these proceedings.

1. In summary, for the reasons that I set out above, I find that:
   1. the applicant was afforded ample opportunity to obtain legal advice in respect of these proceedings, having been recommended to do so by the Assistant Commissioner before the Complaints were referred to the Tribunal and by me several times during the proceedings;
   2. the applicant was given ample information about the nature of the proceedings he had brought to the Tribunal and the expectations of him as the prosecutor of those proceedings;
   3. the applicant was given ample information (or otherwise directed to sources of information) about the provisions of the EO Act relating to these proceedings, relevant caselaw, and the risk to him of an adverse costs order;
   4. the applicant was afforded procedural fairness;
   5. the victimisation and discriminatory advertising complaints against each of the 12 respondents had no merit;
   6. the age discrimination complaints under ss 85B and 85G of the EO Act against the second to twelfth respondents inclusive had no merit;
   7. the allegation against the twelfth respondent under s 90 had no merit;
   8. the interlocutory application to remove Mr Connell had little merit and would have been dismissed;
   9. it ought to have been plainly evident to the applicant from an early stage in the proceedings that the vast majority of his 49 complaints were misconceived, and could not hope to succeed, because they were not within the ambit of the EO Act. The applicant was on notice before the referral that the Commissioner considered that his complaints were frivolous, vexatious, misconceived and lacking in substance;
   10. however, the applicant did not withdraw these proceedings until some 14 months had elapsed. The applicant's prosecution of his Complaints unnecessarily complicated and prolonged the proceedings. He did not conduct the proceedings in a way that was consistent with a party minimising costs and facilitating the just, quick and cheap resolution of the issues in dispute; and
   11. the respondents were exposed to legal costs in respect of complaints under the EO Act that were without merit and/or had no hope of success because they were not within the ambit of the EO Act and a significantly flawed interlocutory application to remove Mr Connell.
2. Forty seven of the 49 individual complaints were misconceived and lacking in substance. I would agree with the Commissioner and the respondents that those complaints were also frivolous and vexatious. I adopt what was said in this regard by Member Kennedy in the Tribunal decision of Taylor v Marveggio (No 2) [2020] SACAT 99 at [8]:

As observed in Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923, when used in a legal context "the word 'frivolous', especially when coupled with 'vexatious', is a technical legal term, in substance meaning the absence of a cause of action." In other words, "An action can be stayed as vexatious 'if it can really lead to no possible good': JF Keir Pty Limited v Sparks [2008] FCA 61." I have had regard to the consideration of these terms as they apply to equivalent provisions in the Administrative Appeals Tribunal Act 1975, discussed by DP Forgie in Singh and Administrative Appeals Tribunal [2014] AATA 701.

3. In view of these findings, it has not been necessary for me to determine if the Complaints were also an abuse of process. In any event, there is no evidence before the Tribunal to base such a conclusion.
4. I should observe that it is not clear to me that, being a solicitor himself, Mr Connell has personally incurred any legal costs. However, I cannot rule out that he may have. In any event, I consider that this is a question that strictly concerns the quantum of costs that Mr Connell may be entitled to, rather than whether it is appropriate or not that an award of costs be made in his favour.
5. I have taken into account the likelihood that there may be a significant financial disparity between the applicant and the respondents and whether that would amount to a reason not to make a costs order against the applicant.
6. However, the Supreme Court recently confirmed the following principles, which I consider should be adopted for the purposes of a s 57 costs decision in the Tribunal.
7. In McFarlane v Outback Communities Authority (No 2) [2024] SASC 74 at [11] and [13], Justice Hughes said (referring initially to the decision of Justice McDonald in Marshal v Parole Board of South Australia) (all footnotes omitted):

11. ... McDonald J said, > > In Northern Territory v Sangare, the High Court gave consideration to the effect of impecuniosity on an order for costs. The Court made the following general observations about an award of costs in circumstances in which there is a significant disparity in the resources of the parties: > > In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person. > > 13. The High Court further rejected a submission that as a matter of practicality courts should not award costs in circumstances in which the impecuniosity of the losing party was unlikely to ever be enforced. The Court said: > > In any event, as a matter of authority, the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so. The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant.

8. In other words, the relative impecuniosity of a party is not alone a reason not to award costs against them and it is a matter for the party with the benefit of the costs award to determine if and when it should be enforced.
9. In this case, I am well satisfied that it is appropriate under s 57(2) of the SACAT Act that a costs order be made in favour of the second to twelfth respondents inclusive.
10. I have placed substantial influential weight in making this decision on the fact that 47 out of the 49 complaints brought by the applicant clearly had no or little merit and were misconceived, frivolous and vexatious. There was no reasonable basis for the applicant to bring proceedings against the second to twelfth respondents, nor the victimisation and discriminatory advertising complaints against 5EBI, and to persist with them for 14 months.
11. As noted in the above extract from the Nguyen decision, an important consideration in costs decisions in this Tribunal under the EO Act is that the prospect of an adverse costs order may discourage the bringing of meritorious complaints to the Tribunal. In my opinion, the principle of accessibility to the Tribunal gives way where, as in this case, a party persists for an extended period to prosecute complaints that the party reasonably ought to have known could not succeed and where that party knew that the respondents were legally represented and were incurring legal costs.
12. I note that, under Rule 101 of the SACAT Rules, costs awarded by the Tribunal are assessed at 75% of the scale of costs applicable in the Supreme Court.
13. I consider for these reasons that the second to twelfth respondents inclusive are each entitled to all of their costs as assessable under Rule 101 and that 5EBI is entitled to its costs of the victimisation and discriminatory advertising complaints.
14. I have given some thought to whether 5EBI should bear at least part of its costs on the basis that there were two complaints (those under ss 85B and 85G of the EO Act) about which I declined to make a definitive merits finding under s 57(2)(b) of the SACAT Act. In the scenario where there are potentially meritorious complaints, the principle of not discouraging accessibility to the Tribunal would be influential.
15. However, I have determined that 5EBI should recover all of its costs as assessable under Rule 101. Notwithstanding that two of the complaints could potentially be meritorious, I consider that the accessibility principle must be weighed against general considerations of fairness. In the present case, I consider that it would be unfair for 5EBI to bear the wasted costs of addressing over a 14 month period the applicant's ultimately withdrawn s 85B and 85G complaints. The applicant's late withdrawal of proceedings was not consistent with a party who should have acted quickly and efficiently to minimise costs. A prompter withdrawal by the applicant might potentially have had a different outcome.
16. I have considered whether the 12 respondents should have their costs from the commencement of the proceedings in the Tribunal or some later time. I note in particular that the applicant may possibly not have known about the costs risks of these proceedings until my Second Directions. I have also taken into account that the respondents did not make their strike out application until June 2024.
17. However, the applicant was clearly on notice before this referral was made to the Tribunal of the risks he was taking in further prosecuting his complaints and grievances against the respondents (the majority of which I have found to have no or little merit). He had been informed by the Commissioner in her correspondence of 12 May 2023 that she considered his complaints against the respondents to be frivolous, vexatious, misconceived and lacking in substance. It had also been recommended to the applicant by the Assistant Commissioner that he obtain legal advice before the Complaints were formally referred to the Tribunal.
18. For these reasons, I have determined that the applicant was well informed that he should not necessarily expect the referral of his complaints to the Tribunal to be successful.
19. The applicant certainly had a right to have his Complaints referred to the Tribunal under the EO Act notwithstanding the Commissioner's assessment as to its lack of merits. However, that right does not translate to concessionary costs treatment in a case such as this where the applicant had been alerted by the Commissioner to the likely poor outcome of the referral.
20. I also consider that it was reasonable, and in fact prudent, for the respondents to refrain from making their strike out application until the applicant had filed some attempt to better particularise the Complaints. I therefore do not consider that the respondents could be significantly criticised for not acting earlier to stem their own costs.
21. For all the reasons discussed in this section, each of the 12 respondents (including 5EBI) should have their costs from the commencement of the proceedings in the Tribunal.

1. The respondents sought their costs against the applicant on an indemnity basis. Their Outline of Argument does not assist me in a real way to understand the basis for such an award.
2. I do not agree that the applicant should pay the respondent's costs on an indemnity basis.
3. A recent decision illustrative of when indemnity costs might be ordered is YJV v YJW.[69] In that decision, the Appeal Panel of the NSW Civil and Administrative Tribunal said the following:

1. In jurisdictions where "costs follow the event", the successful party is not generally entitled to their costs on an indemnity basis. In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, commenting on the discretion to award costs on an indemnity basis, Gaudron and Gummow JJ said at [44]:

"It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs, but for costs on a 'solicitor and client' basis, or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what would otherwise have been the position of the unsuccessful party in the absence of such delinquency on its part." ...

4. In White ACT (in liquidation) v G B White [2004] NSWSC 303 at [11], McDougall J said that the term "some relevant delinquency" as used by Gaudron and Gummow JJ in the passage above "does not mean moral delinquency or some ethical shortcoming, but delinquency bearing a relevant relation to the conduct of the case".
5. In Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225, Sheppard J at 230-234 discussed the authorities which have considered the principles which govern the exercise of the discretion to depart from the "usual course" of making an order for the payment of costs on a party and party basis. Citing Preston v Preston [1981] 3 WLR 619 at 637; [1982] 1 All ER 41 at 58,, at 230-234 Sheppard J observed that some "special or unusual feature" is required to depart from the usual course and that the categories in which the discretion to award costs on an indemnity basis are not closed.[70]
6. I respectfully adopt these comments.
7. In the YJV v YJW decision indemnity costs were ordered against a party. The Appeal Panel found that this party deliberately failed to notify the other parties of the death of the person who was the subject of the proceedings. They were not notified until the eve of the hearing whereas the deceased had died 41 days earlier. The Appeal Panel found that those actions resulted in the proceedings being unnecessarily prolonged and, as a consequence, the other parties were put to the trouble, anxiety and expense (including legal costs) of continuing proceedings which had been rendered futile by the death of the deceased.
8. However, in the present case, I cannot be satisfied that there is any "relevant delinquency" or "special or unusual feature" that warrants making an award on an indemnity basis.
9. These proceedings are an example of the common situation before the Tribunal where an unrepresented litigant withdraws proceedings, albeit in this case somewhat later than desirable. The justice of the case is adequately addressed by the Tribunal making a party/party costs order rather than the standard starting point in the Tribunal of the parties bearing their own costs.

1. The applicant must pay to the first to twelfth respondents inclusive the costs assessable under Rule 101 of the South Australian Civil and Administrative Tribunal Rules 2014 on a party/party basis as agreed or as determined by the Tribunal.

[1] See below for how that number was determined.

[2] Which includes information explaining sources of free or low-cost legal services.

[6] Peek v SA Water [2022] SACAT 47 at [76] - [78].

[7] For example, Interlocutory Application of 29 January 2024 at [4].

[8] To be clear, I have not placed adverse weight on the non-compliance per se in making this decision on costs. These directions were made simply to assist the applicant and Litigation Guardian, as unrepresented persons, to manage the task of providing further and better particulars of 49 allegations of breach in an especially complex matter.

[10] [2020] SACAT 5 at [11] - [19].

[11] [2000] HCA 63 at [6].

[12] Affidavit of KDP, 18 July 2024, at [1].

[13] Affidavit of KDP, 23 July 2024, at [25].

[14] Affidavit of KDP, 23 July 2024, at [28].

[15] Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6].

[16] Peek v SA Water [2022] SACAT 47 at [76] - [78].

[17] See Somasundaram v State of South Australia [2012] SAEOT 3 at [24], [29] - [31] per Cole DCJ.

[18] Somasundaram v State of South Australia [2012] SAEOT 3 at [31] - [32] per Cole DCJ.

[19] See Somasundaram v State of South Australia [2012] SAEOT 3 at [12] per Cole DCJ.

[20] Submitted by the Commissioner's office by email dated 30 August 2023.

[21] Specifically, the track "Intro: Be Ea Bojoa Pt 1" from the album Junk Funk by Sotho Sounds: Shazam music recognition app accessed 11 March 2025 (Note: under s 39 of the SACAT Act, the Tribunal may inform itself as it thinks fit.). The second audio file is entitled "13_Original Beginning of [name of program redacted].mp3" and consists of a brief introduction to the radio program spoken over Louis Armstrong's "What a Wonderful World". It is not clear what the purpose is of this second audio file as there is no Attachment 13 in the statement and it does not appear to relate to any particular complaint or grievance.

[22] I note that the online referral document seems to omit the names of the 11th and 12th respondents. Nothing turns on this. I have assumed this to by a clerical oversight. It is clear from the balance of the referral bundle that the allegations against Ms Sanchez and Mr Connell are also referred.

[23] I am aware that the applicant asserts that there were not 49 individual allegations of breach. See, for example, Second Further and Better Particulars, p2. However, in the end result nothing turns on this.

[24] The referral bundle contains copies of emails from the applicant to the Commissioner dated 25 April 2023 and 28 April 2023 on this age issue and other matters. They are not relevant to my costs decision and have not been taken into account.

[25] Somasundaram v State of South Australia [2012] SAEOT 3 at [33] per Cole DCJ.

[26] Somasundaram v State of South Australia [2012] SAEOT 3 at [29] per Cole DCJ.

[27] Somasundaram v State of South Australia [2012] SAEOT 3 at [31] per Cole DCJ.

[28] Second Further and Better Particulars at [15] and [17] respectively.

[29] Interlocutory Application for review of Second Directions, filed 31 January 2024, p11.

[30] Affidavit of KDP, 23 July 2024, at [48].

[31] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [12] per Justice Hughes; Re HWS [2018] SACAT 39 at [31].

[32] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [16] per Justice Hughes; Hanna v City of Marion [2020] SACAT 21; GKZ v Department of Child Protection [2022] SACAT 29.

[34] Nguyen v Ross [2024] SACAT 69 at [24].

[35] Rules 27, 101 and 102 of the South Australian Civil and Administrative Tribunal Rules 2014 address some of the procedural requirements for costs applications but do not add to the factors the Tribunal needs to consider in determining an application for costs.

[36] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [12] per Justice Hughes; Re HWS [2018] SACAT 39 at [31]; GKZ v Department of Child Protection [2022] SACAT 29 at [43]; GKZ v Department of Child Protection (No 3) [2022] SACAT 76 at [8].

[37] Nguyen v Ross and University of Adelaide [2024] SACAT 69.

[38] Nguyen v Ross and University of Adelaide [2024] SACAT 69 at [30] to [34] (footnotes in original omitted; emphasis in original.)

[39] Uniform Civil Rules 2020, rule 23.10(4).

[40] Chan v Barter [2003] SADC 58 at [6] per Smith DCJ.

[41] [1999] FCA 433 at [27] - [28], [31] per Sackville J. See also Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [18] - [23] and [25] - [30] per Giles JA with whom Ipp and Tobias JJA agreed.

[42] NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433 at [43] per Sackville J.

[43] Interlocutory Application for review of Second Directions, filed 31 January 2024, p7.

[44] NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433 at [31].

[45] Which is incorrect in any event as the respondents made their costs application in June 2024.

[46] Atkins v Hughes & Anor [2019] SASCFC 49 at [39].

[47] For example, see Aldridge v Johnston [2020] SASCFC 31 and Rebbeck v Housing SA [2024] SASCA 86.

[48] Han v Barker & Ors (No 2) [2025] SAERDC 1 at [10] - [12] (citations in original omitted).

[49] First Further and Better Particulars at [2] - [4].

[50] Although this is not clear as it seems the applicant assert that 5EBI was subsequently playing reruns of the applicant's programs.

[51] A MP3 file containing two foreign-language singers (identified by Shazam as Vladimir Vysotsky and Vitaly Romanov) was first attached to the applicant's submissions of 13 May 2024 in respect of his removal application. The applicant has asserted that this is Russian propaganda and has placed his life and the lives of his parents at risk should they travel to Ukraine, the place of his birth.

[52] Peek v SA Water [2022] SACAT 47 at [130].

[53] Affidavit of KDP, 23 July 2024, at [46].

[54] Affidavit of KDP, 23 July 2024, at [47].

[55] Affidavit of Brendan Connell at [18] - [19].

[56] To be clear, I do not consider that these would be services for the purposes of a s 85K complaint.

[57] Affidavit of KDP, 23 July 2024, at [46].

[58] The Macquarie Dictionary, online edition, accessed 11 March 2025.

[59] Loxton v Healy & Anor [2023] SACAT 43 at [62] - [63].

[60] See the discussion in DC Pearce, Statutory Interpretation in Australia (10th ed, 2024) at [9.2] ff.

[61] [1981] EWCA Civ 2 per Lawton LJ. See also Australian Federation of Islamic Councils Inc v United Muslims of New South Wales Inc [2021] NSWCA 311 at [93] - [94] and the cases cited therein.

A solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes:

42.1.1 discrimination,

42.1.2 sexual harassment, or

42.1.3 any other form of unlawful harassment, or

42.1.4 workplace bullying.

1. [63] Which states: "In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing".

[64] Nguyen v Ross [2024] SACAT 69 at [35] - [84].

[65] Nguyen v Ross [2024] SACAT 69 at [84].

[66] Nguyen v Ross [2024] SACAT 69 at [39] - [40] (citation in original omitted).

[67] Nguyen v Ross [2024] SACAT 69 at [87].

[68] Paragraphs 10 and 12 respectively.

[69] YJV v YJW [2024] NSWCATAP 255.

[70] YJV v YJW [2024] NSWCATAP 255 at [36] - [38].