(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

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

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

1. Ms Morros claimed she was subjected to indirect discrimination on the basis of her physical features and sex in the area of employment. She failed to establish the particular physical feature that made her compliance with the requirement to wear a particular holster impossible. At the commencement of the hearing, counsel for Chubb requested clarification of the particular physical feature that constituted the attribute that was the subject of the claim of discrimination. Her counsel responded that she relied on the definition of physical features contained in the legislation - that is, "a person's height, weight, size or other bodily characteristics" as well as "proportionality and flexibility". Ms Morros possessed normal physical features and her failure to identify the particular physical feature that in any way departed from the norm was a fundamental flaw in her case. That flaw achieved even greater importance when it came to consideration of a comparator as required by the legislation.
2. The thrust of Ms Morros' submission is as follows:

The questions of costs is governed by section 109. The parties should bear their own costs;

The Tribunal has a broad discretion and it should be exercised in the her favour;

The complainant was entitled to pursue her legal rights and the action before the Tribunal did not traverse the same issues as those earlier on particularly that before the AIRC;

Nothing in her conduct unnecessarily disadvantaged the respondent;

The complainant was herself disadvantaged by the action of the respondent in seeking to have her matter and that of Mr Sagris heard together.

In considering the relative strengths of the parties, her submissions were:

• It is not sufficient that the Tribunal simply prefers the claim of one party to another;
• A substantial disparity between the strength of one claim and the weakness of its competitor must exist;
• "No tenable basis in fact or law" should mean "no arguable basis in fact or law"; for example an absence of any relevant evidence to link a respondent with the alleged discrimination; a want of jurisdiction;"
• No tenable basis in fact or law" has been held to mean proceedings were misconceived, frivolous or vexatious;
• The mere fact that a litigant has a weak case does not mean it is untenable;
• Just because an applicant fails to prove his or her case is not the equivalent of saying he or she had no reasonable basis in fact or law in the first place.

1. The complainant further submits that the nature of the evidence was not unusually complex and there were no novel points of law to justify departure from the initial presumption that each party should bear its own costs.
2. In addition she submitted that were a costs order to be made against her, she would be unable to pay it, that she would be forced to break her lease and would be left without a place to live due to the excess of her liabilities over her assets. She also presented some evidence about her state of health.
3. The respondent for its part submitted that the failure of Ms Morros to identify a particular physical feature that made it impossible for her to comply with the respondent's condition, represented a fundamental flaw in her case. It also contended that her case had no tenable base in fact or in law. The respondent pointed out that even if Ms Morros had been able to establish to the satisfaction of the Tribunal that she could not comply with the requirement to use the particular holster, she could not establish that this inability was a product of any relevant attribute. That is correct.
4. The respondent set out the pre-trial steps that it submitted went to the issue of liability for costs. On 12 October 2006 Ms Morros initiated the claim by a letter of complaint to the Victoria Equal Opportunity and Human Rights Commission. In December 2006 the Commission referred the matter for conciliation and ultimately, following proceedings on 22 March 2007, this was unsuccessful. Before this Tribunal the matter was listed for mediation on two separate occasions, first on 12 September 2007 and again on 17 March 2008. On neither occasion was mediation successful. In between there were directions hearings.
5. Between the first and second Tribunal mediation, the respondent's solicitor wrote to Ms Morros' solicitor foreshadowing an application for costs in the even her application was dismissed. On the same day (18 September 2007) there was further correspondence which contained a "without prejudice save as to costs" offer of settlement. The offer was for $10,000. No response was received to this offer although on 10 December 2007 the applicant's solicitor issued their own "without prejudice save as to costs" letter seeking, inter alia, $60,000.00 for pain and suffering.
6. The respondent also submits that the proceedings were unnecessarily delayed because of late service of experts' reports and that the issues before the Tribunal had already had an airing at the AIRC where there were two conciliations. I put both of those submissions to one side notwithstanding the findings at the AIRC that the claim was an abuse of process. The proceedings at the AIRC were not identical and in any event in this Tribunal both parties flouted the Tribunal directions concerning filing at one time or another.
7. What the respondent submits, and what is patently clear, is the complainant had a number of occasions on which settlement of this matter might have been explored and further, a formal offer of settlement did not even elicit a response.
8. Ms Morros submitted that she had been disadvantaged by the respondent's decision to seek to have her matter and that of Mr Sagris heard together. Certainly the respondent made this request but the ultimate decision was made by this Tribunal, not by the respondent.
9. The thrust of her submission is that she was entitled to have the matter litigated and tested, that she had reasonable prospects and that her claim was wholly tenable in law. In her submissions she sought to re-agitate the expert evidence but failed to mention that the Tribunal found that the evidence did not support a finding that she could not comply with the requirement to wear a particular rig. Rather, at paragraph 58 of the reasons for decision the Tribunal formed the view that Ms Morros would not comply, irrespective of whether she could.
10. The real difficulty with Ms Morros' case was, as I said earlier, her failure to identify any particular physical feature which was out of the ordinary. And that flaw has been present from the beginning. Even had she proved an inability to comply, it would have been necessary to show that the inability was a product of some physical feature. No such attribute was identified notwithstanding an express request from the respondent at the commencement of the hearing. Just how it was contemplated that normal physical features were an attribute that attracted the legislation is not clear but that failure dogged this application all along and made success impossible and her case untenable.
11. Mr Morros brought to my attention a number of cases, all of which attest to the broad discretion vested in the Tribunal to have regard to all the surrounding circumstances, all of which are overarched with the Tribunal's overwhelming duty to be fair. It is true that the cases support the view that just because a case is weak, it does not follow that costs will flow.
12. In Tanglemayer v FAI Workers Compensation (Vic) Pty. Ltd (Anti-Discrimination List, No. M84 of 1998, 16 December 1998) the Tribunal set out the principles governing an award of costs in the discrimination jurisdiction. That decision concerned the Tribunal's power under earlier, but now repealed legislation, specifically section 138 of the Equal Opportunity Act (1995). The principles are equally applicable to the instant case. In that case McKenzie DP stated that -

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

1. That case, and many that have followed it, indicates that parties in the discrimination jurisdiction should not be deterred from bringing an action because of the threat of future cost orders. This is particularly pertinent in employment discrimination cases where one party often has substantial financial resources and another does not and where there are imbalances of power between the parties.
2. In the Tribunal's view, it is important to keep the doors open for the resolution of such cases and that is precisely the reason the Tribunal orders pre-hearing mediations. That said, it does not follow that the anti-discrimination list is a "cost-free zone" where litigants can bring unworthy cases with impunity secure in the knowledge that their respondent can afford the experience and will bear all the cost. That flies in the face of the Tribunal's duty to be fair to all parties.
3. In Bryce v City Hall Hotel (VCAT A169/2003 on 9.8.2004) Judge Dove dealt with an application for costs in a discrimination case where the complainant had succeeded. In that case there were some parallels with the case before me even though the outcome was different. In concluding he should exercise his discretion in favour of the complainant he had this to say:

The proceeding was one in which damages were sought, and obtained, by the Complainant. Although there were other prayers for relief set out in the Complainant's Particulars of Complaint, the effluxion of time as much as any other factor has led to the relief being sought by way of damages only. The proceeding was a strongly contested action. Very much like a civil claim in negligence, both liability and damages were in issue. In all, fourteen witnesses were called, and the majority of those were cross-examined in detail and at length. During the hearing, it became apparent to me that neither side was willing to make any concession to the other. In sporting terms, it was a bruising battle.

1. It seems to me that his Honour's words are apposite whether or not a complainant wins or loses. The respondent submitted there was a Calderbank offer made in September 2007 to which no response was received. This offer was delivered shortly after the first VCAT mediation. Of course, the mere fact that such an offer was made and not accepted and that the offeree then lost, does not entitle the offeror to an automatic order for costs. (See Mildura Rural CC v VWA [2006] VCAT 2366) However this case ran for a number of days, there were numerous witnesses all of whom were cross-examined in robust fashion and, as in the Bryce case, neither party made any concession.
2. The Tribunal is obliged to consider all the circumstances including the reasonableness or otherwise of the party to whom the offer was made. In this case, the offer was made some four months after the referral of the proceedings to this Tribunal and before the parties embarked upon the very extensive (and doubtless expensive) steps that followed. Ms Morros failed to respond.
3. Ms Morros has told the Tribunal of her impecuniosity and her ill health but those are not matters which of themselves automatically relieve her from a costs order. Those factors, like the Calderbank offer, and the various conciliation and mediation procedures are just part of the matrix of facts and circumstances to be considered in an application for costs brought under section 109.
4. Unlike Mr Sagris who failed to proved his case by the absence of evidence linking his physical attribute to the alleged inability to comply, Ms Morros failed at the very commencement of her action and her action was doomed from that point on. She was asked to identify the particular physical feature that constituted the relevant attribute and failed to do so, relying on the definition in the Act; that is, relying on normal height, weight and size as well as normal proportionality and flexibility. To my mind that flies in the very face of the purpose of the legislation. Furthermore, notwithstanding several opportunities to settle, she failed to avail herself of these opportunities and put the respondent to great expense.
5. It is the Tribunal's decision that she should be called upon to contribute in some measure to the respondent's costs. In considering all the circumstances of this case I have taken into account the Calderbank offer made early on, the fact that Ms Morros failed to identify an attribute other than the universal attribute that is given to all and the nature of the case with its strongly contested issues.
6. In the circumstances I propose to order that the complainant is to pay the sum of $8,000 towards the costs of the respondent. The respondent has not given an estimate of its costs (which it seeks on Scale D of the County Court Scale) but as the hearing occupied five-plus sitting days (leaving aside preparation and direction hearings), and as the respondent was at all times represented by solicitors and experienced counsel, the costs will be markedly in excess of that figure.