Administrative Tribunals - Procedure - Statutory powers - Order for costs - Ordinary position that parties are to bear their own costs - Effect of party conduct on entitlement to costs

SACAT is not a 'no costs' jurisdiction although the usual position is that parties are to bear their own costs - Discretion to award costs enlivened - Discretion to award costs in appropriate circumstances - No need to establish exceptional circumstances - No special considerations about costs in sexual harassment proceedings

Administrative Decisions Tribunals Act 1997 s 110

Civil and Administrative Tribunal Act 2013 (NSW) s 60

Equal Opportunity Act 1984 (SA) ss 26, 87, 91

South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 47, 48, 57, 58, 91

South Australian Employment Tribunal Act 2014 (SA) ss 26B, 52

South Australian Employment Tribunal Rules 2017 r 11

Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109

South Australian Civil and Administrative Tribunal Regulations 2015 regs 7, 11

South Australian Civil and Administrative Tribunal Rules 2014 r 101

Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102

State Administrative Tribunal Act 2004 s 87

Tasmanian Civil and Administrative Tribunal Act 2020 s 120

ACT Civil and Administrative Tribunal Act 2008 s 48

Ball v Morgan [2001] FMCA 127

Burns v Corbett [2018] HCA 15

Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100

CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21

Creek v Cairns Post Pty Ltd [2001] FCA 1150

Fetherson v Peninsula Health (No 2) [2004] FCA 594

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

GKZ v Department of Child Protection [2022] SACAT 29

Gluyas v Commonwealth (No 2) [2004] FMCA 359

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

Hinder v Clayton [2020] SAET 11

Hoare v Registrar of Firearms [2021] SACAT 65

Hollingdale v North Coast Area Health Service (No 2) [2006] FMCA 585,

Jacomb v Australian Municipal Administrative Clerical & Services Union [2004] FCA 1600

Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414

Maurici v Registrar of Firearms [2022] SACAT 61

McKenzie v Department of Urban Services [2001] FMCA 20; (2001) 163 FLR 133

Minns v State of NSW (No 2) [2002] FMCA 197

Murtough v NSW Bar Association [2008] NSWADT 166

Nash v Revenue SA [2023] SACAT 90

Nguyen v Ross & Anor [2021] SACAT 112

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Paramasivam v Wheeler [2001] FCA 231

Ragless v Stokes (No 2) [2016] SAEOT 5

Ramstrom v Baldino [2014] SAEOT 4

Re HWS [2018] SACAT 39

Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd (No 2) [2003] FMCA 516

Ritson v South Australia Police [2019] SAET 205

Ryan v The Presbytery of Wide Bay Sunshine Coast [2001] FMCA 12

Sastre v Commissioner for Equal Opportunity and TAFE SA [2018] SAET 147

Savage v Vili's Cakes [2019] SAET 239

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

Steel v SA Ambulance Service [2020] SACAT 86

Stratford v District Council of Tumby Bay [2020] SACAT 54

Tadawan v South Australia [2001] FMCA 25

Tate v Rafin [2000] FCA 1582

Tronnolone v Edwards & Bryan [2016] SACAT 27

Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 177

Ms K Clarke SC on instructions from Wearing Blair Solicitors for the applicant

Mr P D'Assumpcao on instructions from Mr N Kernahan of Johnston Withers for the first respondent

Mr M Bergander-Florek, HWL Ebsworth Lawyers, for the second respondent

1. This is the determination of a costs application in this matter made by the first respondent, Prof J Ross against the complainant, Dr G Nguyen.
2. The costs application follows the Tribunal's dismissal of a complaint made by the applicant (referred by the Commissioner for Equal Opportunity) where she alleged sexual harassment by the first respondent under s 87 of the Equal Opportunity Act 1984 (EO Act) and argued that the second respondent was vicariously liable for its employee's unlawful act under s 91 of the EO Act.
3. Following a lengthy hearing involving numerous witnesses, which proceeded over many months, the Tribunal's final order was that the applicant's complaint against both respondents was dismissed in its entirety. The Tribunal provided lengthy reasons for its decision and indicated that it would hear the parties as to any ancillary orders, including costs.
4. The second respondent, the University of Adelaide, is not seeking its costs of the proceedings. The University was represented by counsel, Mr Bergander-Florek, at the hearing on the costs argument, but the University's counsel made no submissions and indicated that the University would abide the outcome of Prof Ross' costs application against Dr Nguyen.
5. The second respondent and the applicant filed written submissions regarding the costs application, which was argued before the Tribunal on 8 February 2024.
6. I explain in these reasons why I have allowed Professor Ross's application for costs against the applicant on a party/party basis on a limited basis, i.e., from the conclusion of the evidence of Professor White on 31 May 2022.

1. Prof Ross' counsel observed that the complainant alleged sexual harassment comprising non-consensual sexual relations with the first respondent. Her case depended upon an acceptance of her account by the Tribunal regarding the extent of her intoxication such that she could not have consented to the sexual conduct.
2. The account of what occurred during the sexual encounter was uncorroborated and required the Tribunal to make findings regarding the veracity of the complainant and of the first respondent. Allied to that was an allegation by the complainant that there was a power imbalance between the applicant and Prof Ross. In particular, the complainant's case required an acceptance by the Tribunal of the veracity of the applicant's account.
3. The main grounds in support of the application that the applicant should pay Prof Ross' costs of the proceedings are:
   • The discretion to award costs under s 57(2) South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) is enlivened in this case. It is appropriate to award costs having regard to the factors in s 57(2), which are broad, and include 'any other matter' considered relevant by the Tribunal.
   • The Tribunal's adverse credit findings about the applicant are relevant to whether costs should be ordered under s 57(2) (a) and (d).
   • The Tribunal's findings were consistent with the fact that the applicant had completely fabricated her evidence.
   • The Tribunal's findings were consistent with the applicant having commenced the proceeding and having continued to pursue the matter in the knowledge that she was asking the Tribunal to accept a false account. The complainant always knew that consent to the sexual encounter had been forthcoming, and she unreasonably pursued the complaint.
   • The complainant should have discontinued the proceeding at the earliest possible opportunity to save the resources of the Tribunal and the costs to the parties (s 57(2)(a)).
   • The pre-hearing conduct of the applicant is a relevant matter under s 57(2)(a) and (d); the applicant made a forensic decision not to view the CCTV footage prior to the commencement of the hearing. Had she done so, it would have revealed the flaw in her later account or reconstruction of the events leading up to the incident in the hotel room such that she ought not have continued to prosecute the matter. Her decision not to view the footage was unreasonable and remains unexplained.
   • The proceedings were clearly lacking in merit and should not have been pursued; it was unfair for the first respondent to have to defend the complaint in those circumstances (s 57(2)(b)).
   • In all the circumstances it would not be appropriate to burden the first respondent with the costs of having to defend the proceedings. It was a complex, lengthy matter requiring legal representation by solicitors and counsel at all stages of the proceedings.
   • If the matter is left to be determined under s 57(2)(c) previous costs offers will be produced.

1. Dr Nguyen's main grounds for opposing costs are:
   • Sexual harassment claims in South Australia have historically been heard in 'no costs' jurisdictions for sound policy reasons. Costs have not generally been awarded in favour of the respondent even where the complainant has been unsuccessful. Costs should not be ordered against the complainant in SACAT just because the claim failed; to do so would discourage meritorious claims being pursued and expose complainants to unreasonable costs burdens.
   • In all other jurisdictions in Australia (except for Queensland) sexual harassment proceedings are heard in 'no costs' jurisdictions save for in exceptional circumstances. Parties bear their own costs regardless of the outcome.
   • There is no proper basis to depart from the starting point in s 57(1) that each party bear its own costs.
   • The claim was not frivolous, vexatious, or malicious. The claim was not obviously hopeless or so lacking in merit as to warrant an adverse costs order.
   • Dr Nguyen did not commence or continue the proceedings knowing that her allegations were false.
   • The way in which the proceedings were conducted was not unreasonable and there was no particular conduct by the applicant which caused additional or unusual costs to be incurred by the first respondent.
   • There was a proper reason for the applicant not viewing the CCTV footage prior to the hearing; the applicant had instructed her solicitors that the footage would be psychologically triggering. The CCTV footage was viewed by her solicitors and was shown to her expert witness before the hearing. The expert witness was properly proofed.

Additional written submissions - Dr Nguyen's pre-hearing conduct re the CCTV footage

1. During oral argument Prof Ross' counsel raised, as a contributing factor to the making of a costs order, the fact of Dr Nguyen's pre-hearing conduct in refusing to view the CCTV footage taken at the Grand Hotel just prior to the alleged incident of unlawful harassment. He submitted that, had the applicant viewed the CCTV footage she may not have proceeded with the hearing which contributed to the overall hearing time and costs.
2. Counsel for Dr Nguyen submitted that her instructions enabled her to provide an explanation for her client's pre-hearing conduct, namely, that Dr Nguyen was concerned for her psychological health should she be required to view the footage pre-hearing.
3. The matter was adjourned to enable the applicant's solicitors to obtain further instructions on that topic and to provide submissions, or a report from a psychiatrist. Prof Ross' solicitors were permitted a right of reply.
4. The Tribunal has now considered the affidavit of Dr G Nguyen sworn on 14 February 2024, the additional brief written submissions of the parties (a letter filed by the second respondent's solicitors, dated 19 February 2024), and the letter filed by the applicant's solicitors in response, dated 19 February 2024.
5. Dr Nguyen deposes that she suffered an acute exacerbation of psychiatric symptoms prior to the hearing each time she was required to view any evidentiary material in this matter. The applicant has not produced any medical evidence to support this assertion.
6. Dr Nguyen deposes that she was focussed on 'keeping her mental health on track' prior to hearing and she chose not to view the footage. She says her solicitors had discussed the contents of the footage with her in detail, and she was aware that the 20 second snippet of footage revealed her walking 'with no obvious signs of intoxication and that she was able to walk unaided'. She was aware that the contents of the footage had been provided to, and discussed with, the expert toxicologist (Prof White) by her solicitors. She agrees that she was not given any medical advice by her treating psychiatrist or general practitioner not to view the footage.
7. Dr Nguyen's solicitors advise that an addendum report was not sought from Prof White, but that evidence was led from the expert at the hearing regarding the footage and whether it altered his opinion. I note that the solicitors' proofing notes were disclosed and tendered at the hearing.
8. Dr Nguyen deposes that: "Despite what my solicitor told me that the footage showed, I maintained the view that I was intoxicated and placed more weight on my own recollection and the opinion of the toxicologist than the 20 seconds of footage. Having now viewed the footage I would not have changed my instructions to proceed to trial." [1]
9. In the absence of evidence to the contrary I accept that Dr Nguyen may have had difficulties viewing evidentiary material leading up the hearing (due to her mental health issues), that she was aware of the contents of the footage and that she may still have proceeded with the hearing had she viewed the CCTV footage before the hearing.
10. I accept that Dr Nguyen understood from her solicitors that the toxicologist had been shown the CCTV footage prior to the hearing. It appears that she understood that Prof White's opinion was not going to be harmful to her case. Prof White's expert opinion pre-hearing was, of course, based on the truthfulness of her account about how much alcohol she had consumed and about her tolerance to alcohol.

Principles regarding the award of costs in SACAT

1. Sections 57, 58 and 91 of the SACAT Act govern the award of costs in the Tribunal.[2]
2. Section 57(1) of the SACAT Act provides that parties are to bear their own costs, unless the Tribunal orders otherwise, or there is some other legislative provision specified in the SACAT Act or a 'relevant Act' (in this case the EO Act), governing the award of costs in the particular matter.
3. There are now no costs provisions in the EO Act,[3] so this matter is to be determined by reference to the costs provisions in the SACAT Act as discussed in the published decisions of the Tribunal regarding the award of costs under the SACAT Act.
4. Where, as is the case under s 57(1), the starting point is that each party bears its own costs, it is the applicant for costs who bears the onus of establishing an entitlement to costs.
5. It has not been suggested that the Tribunal should consider any offers made by the first respondent in this matter for the resolution of the proceedings although Prof Ross' counsel has indicated that correspondence will be tendered in this respect should the Tribunal indicate that it will need to resort to s 57(2)(c) as the sole basis to award costs.[4]
6. The costs provisions in the SACAT Act clarify that the traditional approach adopted by the courts, namely, that a successful litigant is entitled to recover their costs from the other party, is not the starting point in relation to matters heard and determined by the Tribunal.[5]
7. However, it is not correct to describe the Tribunal as a 'no costs jurisdiction',[6] nor is it correct to suggest that costs will be awarded only in 'exceptional circumstances'.
8. Whilst the starting point is that each party is to bear their own costs the Tribunal has a broad, although not unfettered, discretion to award costs in SACAT "in appropriate circumstances".
9. Section 57(2) of the SACAT Act enables the Tribunal to award costs "if the Tribunal considers it is appropriate to do so" (in the exercise of its discretion), taking into account the following factors:
   1. the main objectives of the Tribunal set out in s 8 of the SACAT Act that are relevant to simplifying proceedings and keeping costs to a minimum,
   2. the need to ensure that proceedings are fair, and the parties are not disadvantaged by proceedings that have little or no merit,
   3. to consider any provision made by the rules, and,
   4. to consider any other matter "considered relevant by the Tribunal".
10. 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.
11. It is convenient to set out the summary from Nash v Revenue SA here (with relevant cases footnoted):

[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;[7] 2. a costs order is exceptional.[8] 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;[9]

1. 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;[10]

1. this rule applies even where a party succeeds in the proceedings;[11] 2. 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;[12] 3. 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.[13] 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;

1. 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.[14] 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";[15]

1. 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;[16] 2. 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.[17] 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.[18] This generally suggests that s 57(2)(b) is relevant where unmeritorious proceedings are brought by the applicant;[19] 3. lack of merit is not measured by lack of success where there is a legitimate dispute requiring adjudication;[20] or that a decision was made without power or there was an error in the administrative decision-making process that was not intentional[21] or reckless;[22] 4. 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;[23] 5. 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;[24] 6. there is no reason to treat the success or failure of a public authority differently from the success or failure of a private party.[25] 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;[26] 7. the reference to "proceedings" in s 57 means the review proceedings in the Tribunal not the decision under review;[27] and 8. 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.[28]
2. 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".
3. Further, I do not accept the proposition that costs will only be awarded by the Tribunal in 'exceptional circumstances'.[29] 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[30] and SAHT v Brady & Milera.[31] However, I note that that terminology was not used by the Tribunal members in the original decisions cited by Member Files.
4. In SAHT v Brady & Milera[32] 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. (Emphasis added)

1. As discussed at paragraph 11(k) of the Nash decision, an important relevant consideration under s 57(2) of the SACAT Act as to whether it is appropriate to award costs is the nature of the proceedings. In SAHT v Brady & Milera Justice Hughes stated:[33]

...The broad scope of "appropriateness" permits consideration of the nature of the proceedings. The Tribunal has diverse jurisdiction and increasingly so following the recent conferral of new review jurisdictions. In some of its areas of work, the nature of the proceedings and the circumstances that bring the parties to the Tribunal may lend themselves more than others to a ready finding that it is appropriate to make an award of costs. In the performance of original jurisdiction hearings of matters relating to housing, and to the guardianship, administration and mental health hearings that currently make up the volume of the matters heard by the Tribunal, the case for maintaining accessibility to the Tribunal including through parties bearing their own costs is strong. (Emphasis added)

2. The relevant decisions regarding the award of costs in the Tribunal's administrative review jurisdiction and in matters relating to guardianship, mental health and housing indicate that costs are likely only to be awarded in rare, special, or unusual circumstances in such matters. In Clarke v Veterinary Surgeons Board of South Australia Senior Member McEvoy stated:[34]

Essentially the Tribunal deals with applications relating to housing, where in relative terms the claims are low, and need to be addressed quickly and at minimal cost to both parties, so it is appropriate parties bear their own costs; it exercises protective jurisdictions, including mental health, guardianship, and administration matters, where it would be inappropriate for parties to bear costs on a "win/lose" basis, since this is not the nature of the process before the Tribunal; and in its review jurisdiction, where the Tribunal principally hears applications concerning whether a decision of a government agency is "correct or preferable", and the Tribunal's role is generally in the nature of administrative review, rather than the resolution of an inter partes dispute between individuals.

3. But that approach is not applicable in every type of matter in the Tribunal. In Clarke Senior Member McEvoy went on to observe that costs might appropriately be awarded in inter partes proceedings:

However, when the Tribunal exercises its disciplinary jurisdiction in considering a complaint such as that of the Board against Dr Clarke, the matter before the Tribunal is much more akin to an inter partes proceeding, that is, a dispute specifically between parties with interests to assert, in this case, between the Board and Dr Clarke. In inter partes proceedings the award of costs is usual, on the basis that the unsuccessful party bears the costs of the successful party, as well as their own.[35]

4. The subject proceedings are heard in the original jurisdiction of SACAT under s 33 of the SACAT Act and relate to a complaint referred by the Commissioner for Equal Opportunity alleging serious sexual harassment (conduct amounting to rape) by the first respondent in a workplace setting.
5. The High Court in Burns v Corbett[36] 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.[37]
6. 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.
7. However, Ms Clarke SC submits that a different approach may be appropriate in proceedings under the EO Act given that the Act governs claims for discrimination, victimisation and sexual harassment. She submits that public policy considerations relevant to the jurisdiction under the EO Act are a relevant consideration under s 57(1).
8. Ms Clarke SC submits that some state and interstate cases support the proposition that a different approach to the award of costs in 'human rights' proceedings, where there are significant public interest issues, may warrant a departure from the traditional 'costs follow the event' rule. I understand her submission to be that the main consideration in support of a different approach to costs in such matters is to enable less sophisticated, financially vulnerable applicants the easy access to courts and tribunals in order to prosecute their meritorious claims of discrimination or harassment against more sophisticated respondents (such as corporate employers), without the spectre of a potentially large costs order hanging over their heads, effectively denying them access to justice.
9. I accept that accessibility to the Tribunal is an important consideration under s 8 of the SACAT Act and the spectre of prohibitive costs orders should not discourage meritorious complaints being brought to the Tribunal under the EO Act.
10. Dr Nguyen's counsel referred the Tribunal to various authorities which suggest that the approach to the award of costs under equal opportunity legislation in Australia has been modified due to the human rights nature of the proceedings. Ms Clarke SC also submitted that SACAT should consider the history of the statutory approach to costs in equal opportunity legislation in South Australia together with any relevant judicial or tribunal decisions concerning the award of costs under the EO Act in South Australia, prior to the jurisdiction being conferred on SACAT.
11. I accept that it is relevant for the Tribunal to consider the general principles regarding the award of costs in equal opportunity and human rights jurisdictions in South Australia, other States and in the Federal jurisdiction when exercising its discretion to award costs under s 57(2) of the SACAT Act.

Public Policy Considerations and the History of the EO Act costs provisions in SA

1. I note that claims under the Act were originally heard (from 1984 - 2017) in the South Australian Equal Opportunity Tribunal (EOT), where hearings were held in the Administrative and Disciplinary Division of the District Court and Tribunal panels were constituted of a District Court judge sitting with two assessors. The EO Act at that time contained a specific costs provision, which was repealed after the EOT was dissolved on 1 July 2017 by the Statutes Amendment (South Australian Employment Tribunal) Act 2016.
2. Prior to the EOT being dissolved, s 26 of the EO Act provided that the EOT 'may not award costs except in certain circumstances.' [38]
3. In the original version of the 1984 EO Act the power to award costs was very limited, as outlined in s 26(1)(a) and (b) namely: where in the opinion of the Tribunal the proceedings are frivolous or vexatious, or where in the opinion of the Tribunal the proceedings have been instituted or prosecuted for the purpose of delay or obstruction.[39]
4. In later versions of the EO Act, and just prior to the EOT being abolished, s 26 of the EO Act was amended and provided for costs to be awarded in slightly broader circumstances than those allowed by the original version of the Act.[40] Those broader circumstances were outlined in subsection 26(1)(c), namely: if in the opinion of the Tribunal there are other good reasons for doing so.
5. Two judgments of the EOT emphasised that costs in the EO jurisdiction in the Tribunal should be awarded on a limited basis in accordance with the now repealed s 26(1) of the EO Act. In Ragless v Stokes (No 2)[41] her Honour Judge Cole awarded costs to the successful respondent in a complaint alleging victimisation and unlawful discrimination that had been dismissed on the basis that the proceedings had no prospect of success. The court found that the proceedings were frivolous or vexatious within the meaning of s 26(1)(a) of the EO Act.
6. In Ramstrom v Baldino (No 2)[42] the complainant brought a complaint alleging sexual harassment by the respondent. The complaint was dismissed (on the basis that the allegations had not been proven to the requisite standard, although some of the complainant's allegation were also found to be untrue). In refusing a costs application made by the respondent the EOT found that there was no basis to determine that the complaint was frivolous or vexatious and there was otherwise no 'good reason' to award costs. The EOT stated:[43]

...It seems to us that there was a very good reason that the Act provides, as it does, in section 26, for a limited basis upon which costs may be awarded, rather than providing for the unsuccessful party to pay the costs of the successful party before the Tribunal. The reason is one of public policy. The preamble of 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 other related matters. > > ...The limitation on the circumstances in which costs may be awarded is intended to limit the extent to which a complainant might be discouraged from pursuing a claim under the Act before the Tribunal by reason of the likely expense in pursuing it. Bearing that in mind, in all of the circumstances of this case, we do not consider that it would be appropriate to make an order for costs pursuant to section 26(1)(c) of the Act.

7. The objects of the South Australian EO Act referred to by her Honour Judge Cole remain the same now as they were when that case was decided.
8. After the EOT was abolished the jurisdiction under the EO Act was conferred on the South Australian Employment Tribunal (SAET). Regarding the legislature's intent in relation to the award of costs in that jurisdiction it is of some assistance to consider the second reading speech of the Statutes Amendment (South Australian Employment Tribunal) Bill 2016 where the Attorney-General, the Hon. J. R. Rau stated regarding costs in the SAET that:

'The Bill makes it clear that, generally, SAET is a no-costs jurisdiction unless provisions in the SAET Act or an Act conferring jurisdiction on SAET permit the award of costs. The Bill does not intend to alter the status quo as regards costs and, if costs are able to be awarded prior to the particular jurisdiction being conferred on SAET, SAET will also be able to award costs when it exercises that jurisdiction.'

9. Dr Nguyen's counsel submits that prior to the jurisdiction being conferred on SACAT no costs orders could be made in EO referrals when proceedings were heard in SAET (and continue to be heard there when referred by SACAT in circumstances where concurrent hearings are made for claims arising under the Fair Work legislation). This is because s 52(1) of the South Australian Employment Tribunal Act 2014 (SAET Act)provides:

Subject to this Act or a relevant Act, parties bear their own costs in any proceedings before the Tribunal (other than proceedings assigned to the South Australian Employment Court to which section 26B applies).

10. However, two cases of the South Australian Employment Court in 2019[44] clarified that this was not the case in matters concerning referrals under the EO Act where the proceedings, although filed with and conciliated in SAET, were held to have been assigned to, heard, and determined by the Tribunals sitting as the SA Employment Court by virtue of rule 11 of the South Australian Employment Tribunal Rules 2017 (SAET Rules), (prior to the amendment of that rule).[45]
11. This was found to be the combined effect of s 26B of the SAET Act (granting the power to the SA Employment Court to exercise any power, including the power to award costs, under the District Court Act 1991 when exercising any jurisdiction "in the nature of civil proceedings" in combination with the SAET Rules 2017.
12. The Full Bench of the SA Employment Court in Ritson v SAPOL (a claim for disability discrimination where the appeal court was hearing an appeal against an order made by the EOT for security for costs) found that s 26B of the SAET Act conferred power on the Tribunal when sitting as the SA Employment Court to order costs in EO proceedings to be paid by a party in accordance with the usual approach to the award of costs in civil proceedings, such that costs would follow the event in the usual way. The Court stated:[46]

However, in my opinion, the Tribunal does have power under s 26B of the SAET Act to award costs in proceedings referred under the EO Act. The limitation in s 52(1) is specifically stated not to be applicable in proceedings assigned to the Court to which section 26B applies. I have explained why the EO complaint should be considered to have been assigned to the Court by the operation of rule 11(c) of the Rules. Assuming the EO Act jurisdiction is in the nature of a civil jurisdiction, then the Tribunal, in exercising that jurisdiction, may exercise any power under Part 6 of the DC Act, including the power to award costs against a party in the proceedings. (Emphasis added)

13. Importantly, Deputy President Judge Hannon in Ritson went on to observe that "there is nothing about the EO jurisdiction which indicates it is not in the nature of a civil jurisdiction."[47] The Judge observed that the claimant in a matter referred under the EO Act is seeking to enforce individual rights or seek a remedy for a contravention of those rights and the Tribunal may order compensation for loss and damages.[48]
14. Ultimately, for other reasons, the Full Bench of the Court in Ritson set aside the order for security of costs made by the Judge at first instance and remitted the matter for rehearing.
15. In Savage v Vili's Cakes[49] a single Judge of the SAET sitting as the SA Employment Court ordered costs against the complainant in a claim for racial discrimination following a successful strike out application brought by the respondent.
16. In Hinder v Clayton[50] the Full Bench of the SA Employment Court ordered costs on an appeal heard in the SA Employment Court to the successful appellant (the complainant who had alleged gender discrimination in an equal opportunity complaint). The Court found that as the matter was an appeal to the Full Bench of the Court (following an initial decision by the then defunct EOT) s67(6) of the SAET Act applied. The Court stated at [8] of the judgment:

An order for costs is ultimately within the discretion of the relevant court. The Court should not decline to make an order for costs in a jurisdiction that provides for it without good reason. We accept that an order is appropriate in the circumstances of this matter.

17. Accordingly, whilst it is correct to state that prior to the jurisdiction being conferred on SACAT no costs orders could be made in EO referrals when proceedings were heard solely in SAET, when full hearings in EO referrals were assigned to the Tribunal sitting as the SA Employment Court costs orders were made (or were permitted to be sought) following the event in the usual way.
18. I note that rule 11 of the SAET Rules was subsequently amended so that currently any matter under the EO Act referred to SAET by SACAT (i.e., where other related proceedings are underway in SAET) is subject to the no costs provision set out s 52(1) of the SAET Act.
19. On 2 September 2019, the Statutes Amendment (SACAT) Act 2019 conferred jurisdiction on SACAT. In his second reading speech of the S_tatutes Amendment (SACAT) Bill 2019_, the Hon. R.I. Lucas makes no mention of a special approach to costs regarding equal opportunity proceedings in SACAT.

Civil and Administrative Tribunals in Australia are not "no costs" jurisdictions.

1. The applicant submits that in all other states and territories, except for Queensland, sexual harassment claims brought under state/territory law are heard in 'no costs' jurisdictions, save for the discretion to award costs 'in exceptional circumstances.'
2. I was not referred by counsel to the various interstate costs provisions in support of that submission, however, I understand that in all other states and territories equal opportunity/anti-discrimination proceedings are heard in state administrative tribunals.
3. A consideration of the costs provisions in the legislation governing the interstate state administrative tribunals reveals similar costs provisions to that which is set out in s 57 of the SACAT Act.[51] For that reason, I do not accept the submission that the comparable interstate jurisdictions are 'no costs' jurisdictions and that costs are only awarded in 'exceptional circumstances'. The starting point, as in SACAT, is that parties should bear their own costs, but each Tribunal has a discretion to award costs in certain circumstances.
4. In the Victorian Civil and Administrative Tribunal, for example, whilst the starting points (as in SACAT) is that each party bears their own costs,[52] s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides that the Tribunal may make an order for costs "at any time...if satisfied that is fair to do so" [53] having regard to a number of factors including:

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

(d) the nature and complexity of the proceedings;

(e) any other matter the Tribunal considers relevant." [54]

1. In the legislation governing the New South Wales Civil and Administrative Tribunal (NCAT) and the Tasmanian Civil and Administrative Tribunal (TasCAT) there are similar provisions about parties bearing their own costs subject to the discretion to award costs in 'special circumstances'[55] or when 'appropriate'.[56] The factors relevant to assessing 'special circumstances' in the NCAT Act are the same as those listed in s 109(3) of the VCAT Act.
2. What is clear though is that the phrases 'special' or 'fair' or 'appropriate circumstances' contained in the cost provisions in the comparable interstate tribunal legislation does not equate to 'exceptional circumstances' as suggested by Dr Nguyen's counsel in written submissions. In my view, the phrase 'exceptional circumstances' implies something extraordinary, unique, or remarkable. Neither the SACAT Act nor any of the interstate legislation uses that terminology regarding the relevant tribunal's discretion to award costs.
3. For example, in Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 177 the NCAT when considering a costs argument in the Equal Opportunity Division under s 60 of the Civil and Administrative Tribunal Act 2013 observed that:

special circumstances are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. (Emphasis added)

4. I conclude that, whilst the starting point in every interstate tribunal, as in SACAT, is that each party bears their own costs, there is provision for the discretionary award of costs as there is in SACAT, and those awards are not limited to being made in "exceptional circumstances".
5. In addition, SACAT has the specific power to order costs when proceedings are struck out for want of prosecution, or for being frivolous, vexatious, or misconceived.[57]

Case law on costs - public policy considerations in other equal opportunity jurisdictions

1. I note that there is a line of cases in 2000 and 2001 in the Federal Magistrates Court (starting with Tadawan v South Australia[58]) that suggest that the human rights or public interest nature of the Federal anti-discrimination jurisdiction may warrant a departure from the traditional 'costs follow the event' rule.[59]
2. However, the weight of authority in the Federal Court and FMC is now to the effect that the usual principles relating to costs are to be applied.[60] See in particular Minns v State of NSW (No 2) [2002] FMCA 197 where Raphael FM concluded:

The decision in Tadawan was always meant to be one made on its own facts and it has not been universally followed in the Federal Magistrates Court. To the extent that it may be considered a precedent for the non-imposition of costs orders in 'deserving cases' this should no longer continue. I am satisfied that the superior courts have now made it clear what the law should be in relation to such applications in the anti-discrimination area and I am content to follow them.

3. In a range of other cases, the Federal Court and FMC have confirmed that the general rule that 'costs follow the event' will apply in unlawful discrimination matters.[61] For example, in 2004 in Fetherston v Peninsula Health (No 2)[62] Heerey J explicitly rejected the argument that normal costs principles should not apply to cases referred by the Human Rights and Equal Opportunity Commission and affirmed the general rule that 'a wholly successful defendant should receive his or her costs unless good reason is shown to the contrary'. His Honour stated:

While the Disability Discrimination Act is without doubt beneficial legislation, its characterisation as such does not mean that this Court is to apply any different approach as to costs. In conferring jurisdiction under a particular statute Parliament may conclude that policy considerations warrant a special provision as to costs, for example that there be no order as to costs or that costs only be awarded in certain circumstances, such as, for example, where a proceeding has been instituted vexatiously or without reasonable cause: Workplace Relations Act 1996 (Cth) s 347. The absence of any such provision applicable to the present case confirms that the usual principles as to costs are to apply.

4. In the 2008 decision of Murtough v NSW Bar Association [63] Deputy President Britton in the Equal Opportunities Division of the NSW Administrative Decisions Tribunal, was considering a claim for costs by the respondent against the applicant (who had alleged discrimination against the Bar Association) in a claim which had been struck out by the Tribunal for want of prosecution. At the time, the relevant costs provision in the Administrative Decisions Tribunals Act 1997 (s 110(1)) provided that 'each party to an inquiry shall pay his or her own costs', however, s 110(2) granted the Tribunal power to 'make such orders as it thinks fit' where it is 'of the opinion in a particular case that there are circumstances that justify it doing so'. The Tribunal ordered the applicant to pay some of the respondent's costs observing that:[64]

... section 110 creates a presumption that each party will pay his or her own costs and a discretion to award costs; this discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made...the kinds of circumstances which have been regarded in previous cases as justifying an award of costs against an applicant include (i) the manner in which the applicant has conducted the proceedings, in particular whether the proceedings were vexatious ... > > ... As a general principle, tribunals exercising jurisdiction where parties are by statute protected from the usual costs consequences of litigating must be careful to ensure that parties do not abuse this statutory privilege by acting unreasonably, unfairly or oppressively towards their opponents. Whether a party's conduct of proceedings is unreasonable, unfair or oppressive will be assessed objectively rather than subjectively ... > > ... Once it is demonstrated that 'there are circumstances that justify' the Tribunal making an order for costs, the Tribunal has a wide and unfettered discretion and may 'make such orders as it thinks fit'. (Emphasis added)

5. I conclude that there is no special approach or provision relating to costs in unlawful discrimination or sexual harassment proceedings brought in the relevant federal jurisdictions under the relevant Commonwealth Acts. An unsuccessful litigant in Federal Court proceedings in such matters is at risk of costs being awarded in the usual way, i.e., to follow the event.
6. I accept that proceedings under the EO Act contain some element of public interest in that the legislation is remedial in character, addressing the public mischief of discrimination, victimisation, and harassment. As Judge Cole observed in Ramstrom v Baldino the objects of the Act make this clear.[65] However, I also note that the legislation confers a private right of action for damages.
7. Dr Nguyen in this case was not just seeking an apology and an improvement in sexual harassment investigation procedures in the University of Adelaide. She stood to benefit personally from the outcome of the proceedings as she was seeking approximately $1.5 million by way of compensation, so the public interest element to the subject proceedings might be considered to have been very much diminished, and/or very much subservient to her own interests.

Recent moves towards a new approach to costs in EO proceedings

1. Dr Nguyen's counsel observes that there is a recently published academic paper advocating for a move away from costs orders being made in the federal jurisdiction in sexual harassment matters to provide 'costs protections' to applicants.[66] The rationale for this approach apparently being that applicants in sexual harassment matters should not be discouraged from bringing proceedings under that legislation by the spectre of large costs orders being made against them should their claim be unsuccessful.
2. Although I am aware of a Federal Bill to amend the Australian Human Rights Commission Act 1986[67] proposing some costs innovations in federal sexual harassment matters, it is apparent that the recommendations of academics and/or policy makers have not yet been adopted by way of legislative amendment to the relevant legislation in Australia.[68]
3. In any event this is not the law in South Australia. Had the legislature in South Australia considered that there should be a special approach taken in such proceedings the SACAT Act or the EO Act would have made that clear.
4. I will therefore approach the award of costs under s 57 of the SACAT Act in this matter in the usual way; I am not persuaded to apply a different approach making special allowance for the applicant given that the proceedings concern an allegation of sexual harassment in the workplace.

Tribunal's consideration of the costs application in this matter

1. The starting point is that the parties should bear their own costs unless the Tribunal thinks "it is appropriate to" award costs in favour of the successful party taking into account the various factors set out in s 57(2).
2. Although my consideration of costs in this matter commences from the conventional starting point in s 57(1) of the SACAT Act that parties bear their own costs I consider it appropriate to depart from that default position considering the factors set out in s 57(2). However, as I have a broad discretion under the Act, I have determined it appropriate to make a partial award of costs in this matter.

1. The nature of the proceedings under the EO Act are inter partes matters akin to civil litigation where costs would usually follow the event (s 57(2)(d)).
2. This is not to suggest that simply because the complaint was unsuccessful that is a sufficient basis of itself for costs to be awarded against the unsuccessful party: but where the complaint is essentially an inter partes action, and the complaint has been comprehensively dismissed due in part to adverse credit findings, this consideration takes on a significant degree of relevance.

**(2) The main objectives of the Tribunal that are relevant to simplifying proceedings and keeping costs to a minimum insofar as is just and appropriate (s 57(2)(a))

(3) The need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little merit (s 57(2)(b))**

1. The proceedings were long drawn out and complex; there were numerous issues in dispute; the books of documents were extensive and there were numerous witnesses. Due to the complexity of the matter, it became impossible to separate the proceedings into two stages (i.e., regarding liability and compensation), although the first respondent had proposed that course at an early stage of the proceedings.
2. The Tribunal's findings regarding an assessment of the applicant's veracity and the strength of her case are relevant to costs. This is not a case where the applicant did not make out her case because the Tribunal was simply unable to prefer one witnesses' testimony over the others. The Tribunal made very clear adverse credit and reliability findings against the applicant.
3. Those adverse findings included:
   • - The applicant was wholly disbelieved in every respect as to the extent of her intoxication and the circumstances of the sexual encounter, including as to the question of consent. The applicant conceded in evidence that she was not intoxicated to the extent of unconsciousness during the sexual encounter, but she had initially made that allegation on the complaint.
   • - The respondent was believed as to the circumstances of the sexual encounter and the degree of intoxication of the applicant.
   • - The Tribunal found that the complainant had selectively reconstructed critical matters including how much she had drunk, her level of intoxication at the time of the sexual encounter and what occurred during the sexual encounter.
   • - On the critical issue of her level of intoxication the Tribunal did not accept the applicant's evidence about how drunk she was at the time of the sexual encounter. That finding was based on a rejection of the truth of her account about how much alcohol she had consumed, and an acceptance by the Tribunal of the evidence of Prof Ross about how drunk she was supported by the contents of the applicant's blog, her text messages and the contents of the CCTV footage as viewed by the Tribunal and analysed by the applicant's expert witness, Prof White.
   • - The Tribunal did not believe the applicant regarding her evidence about her tolerance to alcohol; the Tribunal found that she had misled Prof White (through her instructions to her solicitors) and her own psychiatrist in that respect.
   • - The applicant was found to be a person of high intellect, confident and accomplished, so the applicant's central argument that she was vulnerable, powerless, and taken advantage of by the first respondent in the period leading up to and during the encounter was entirely rejected.
   • - The Tribunal rejected the argument (at the level that the applicant tried to introduce it) that she had was so drunk that she had blacked out entirely during the sexual encounter demonstrating that she could not have consented to it.
4. However, I am not satisfied that the applicant brought the proceedings vexatiously or maliciously, i.e., in the knowledge that the allegations were entirely false. I do not consider the proceedings were completely unmeritorious at the outset and I do not accept the first respondent's submission that the proceedings were commenced by the applicant when she always knew that the allegations were false.
5. As Dr Nguyen's counsel observed in submissions, the Tribunal's findings were careful and nuanced. The Tribunal accepted that Dr Nguyen had consumed a large amount of alcohol to the extent that she could not completely recall all aspects of the sexual encounter (i.e., she had suffered from partial blackouts). The Tribunal found that the applicant honestly came to believe the crucial allegations regarding the circumstances of the sexual encounter (most of which she could not recall), following the encouragement of well-meaning friends and professionals. That is, the Tribunal found that the applicant had reconstructed a version of events which she honestly believed to have occurred when she commenced the proceedings. However, that version of events was subsequently found to have been entirely unsupported by independent objective evidence (the contents of the CCTV footage and other findings). Further the Tribunal found that Dr Nguyen had also embellished and selectively reconstructed her evidence on some critical issues.
6. I am not persuaded that the hearing should not have commenced, even though the applicant had elected not to view the CCTV footage beforehand. The applicant deposed to having known about the contents of the footage and having understood, on the advice of her solicitors, that the case would still be arguable based on the expert evidence likely to be given by Prof White. Whilst the matter is finely balanced on the costs argument, I find that it was not until the expert toxicologist was cross examined by Prof Ross' counsel (based in part on certain inconsistences in Dr Nguyen's testimony) that it became clear that the applicant's case was entirely without merit, given the standard and onus of proof.
7. I am also satisfied that the applicant ought to have been disabused of the truth of her reconstructed version of events when she viewed the objective evidence of the lack of any obvious signs of intoxication on the CCTV footage during the proceedings and heard the evidence of her own expert witness during cross examination, based on that footage. The evidence of Prof White seriously challenged the applicant's version of the extent of her intoxication and exposed the flaws in her reconstructed account of the events.
8. In this matter the applicant continued to pursue the claim past the point in the proceedings when it was obvious that her claim had little merit, when her credibility and reliability as a witness had been brought squarely into question, where there was independent objective evidence (CCTV footage) which did not support her version of events as to the level of her intoxication, and where there was expert evidence (from her own expert witness) significantly undermining the reliability of her account of the extent of her intoxication and her tolerance to alcohol, or both.[69]
9. Given that the applicant bore the onus of proof, it ought to have been clear at that point in the proceedings that her claim was destined to fail and ought to have been abandoned. Despite the objective evidence in the CCTV footage and the evidence of Prof White, the applicant did to resile from her complaint and maintained an account which was simply not open for the Tribunal to reach, given the standard of proof.
10. The proceedings should have been discontinued after the expert toxicologist concluded his evidence on 31 May 2022. Dr Nguyen's actions in failing to discontinue the proceedings at that stage of the proceedings significantly extended the costs of hearing the matter and meant that the first respondent was significantly disadvantaged. Prof Ross went on to incur considerable additional legal fees and expenses after that point, not to mention the distress of needing to give evidence to defend the allegations in the complaint.
11. Costs should be awarded to meet the legal costs and inconvenience which the first respondent experienced at the point in the proceedings where the complaint, which could not succeed under the EO Act, continued to be pursued against him.

1. The first respondent does not have a significant power advantage over the applicant (as for example might be applicable if the respondent were a corporate employer) and there is no suggestion that he has significant financial or other resources relative to the applicant.

1. Having considered the arguments, the relevant principles and the additional material filed by the parties to the costs dispute, the Tribunal partially allows Prof Ross' application for costs against the applicant on a party/party basis from the conclusion of Prof White's evidence on 31 May 2022.
2. The applicant must bear her own costs of the proceedings, including the costs of the cancellation fees (incurred in November 2022) for the psychiatrist, Dr Lau.

1. Pursuant to s 57(2) of the SACAT Act, I order the applicant, Dr G Nguyen, to pay Prof J Ross' costs of and incidental to the proceedings from the conclusion of Prof White's evidence on 31/05/2022 as agreed, or, failing agreement, as determined by the Tribunal.
2. In the event that costs are not agreed or ordered by way of a lump sum, the Tribunal will apply r 101(1)(a) of the SACAT Rules, that is costs will be assessed at 75% of the Supreme Court Scale.

[1] Paragraph 24 affidavit of Dr Giang Thu Nguyen sworn on 14 February 2024.

[2] And see ss 47 and 48 and SACAT Regulations 2015, regulations 7 and 11.

[3] Section 26(1) of the EO Act has now been repealed.

[4] See South Australian Civil and Administrative Tribunal Rules 2014 rule 101.

[5] See Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97 [67] per McHugh J: The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation (footnotes omitted).

[6] I observe that Justice Parker used that phrase in Tronnolone v Edwards & Bryan [2016] SACAT 27 at [35].

1. [7] Tronnolone v Edwards & Bryan [2016] SACAT 27 at [35] per Justice Parker.
2. [8] Hoare v Registrar of Firearms [2021] SACAT 65 at [38].
3. [9] GKZ v Department of Child Protection [2022] SACAT 29 at [64].

[10] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [18] per Justice Hughes; Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [9].

[11] Hoare v Registrar of Firearms [2021] SACAT 65 at [32]; Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [34]; GKZ v Department of Child Protection [2022] SACAT 29 at [71].

[12] Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [16].

[13] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [19] per Justice Hughes; Re HWS [2018] SACAT 39 at [31]; Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [32].

[14] See generally Hanna v City of Marion & Anor [2020] SACAT 21 at [45].

1. [15] Hanna v City of Marion & Anor [2020] SACAT 21 at [45]. See also Maurici v Registrar of Firearms [2022] SACAT 61 at [68].

[16] Rule 4, South Australian Civil and Administrative Tribunal Rules 2014; Re HWS [2018] SACAT 39 at [31]; Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [36].

[17] Tronnolone v Edwards & Bryan [2016] SACAT 27 at [35] per Justice Parker; South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [20] per Justice Hughes; Hanna v City of Marion & Anor [2020] SACAT 21 at [31.

[18] GKZ v Department of Child Protection (No 3) [2022] SACAT 76 at [14].

[19] Hoare v Registrar of Firearms [2021] SACAT 65 at [15].

[20] GKZ v Department of Child Protection [2022] SACAT 29 at [109]. Also, Tronnolone v Edwards & Bryan [2016] SACAT 27 at [35].

[21] GKZ v Department of Child Protection (No 3) [2022] SACAT 76 at [13], [17], [25].

[22] Steel v SA Ambulance Service [2020] SACAT 86 at [66].

[23] See generally South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [22], [26], [33], [34] per Justice Hughes and Re HWS [2018] SACAT 39 at [31].

[24] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [36] per Justice Hughes. Also, Re HWS [2018] SACAT 39 at [44].

[25] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [38] per Justice Hughes; GKZ v Department of Child Protection [2022] SACAT 29 at [76].

[26] GKZ v Department of Child Protection [2022] SACAT 29 at [86].

[27] Hoare v Registrar of Firearms [2021] SACAT 65 at [18].

[28] Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [30].

[29] Nash supra at [11] subparagraph (n) citing Hoare v Registrar of Firearms.

[36] [2018] HCA 15.

[37] See also Nguyen v Ross and Anor [2021] SACAT 112 at [14] - [16].

[38] Heading to s 26 EO Act historical versions 1984 to 30 June 2017.

[40] EO Act 2 October 2009 - 30 June 2017.

[41] [2016] SAEOT 5.

[42] [2014] SAEOT 4.

[44] Ritson v South Australia Police [2019] SAET 205; Savage v Vili's Cakes [2019] SAET 239; and see Sastre v Commissioner for Equal Opportunity and TAFE SA [2018] SAET 147.

[45] Rule 11 of the SAET Rules initially stated that non-criminal proceedings under the Equal Opportunity Act 1984 were assigned to the Court for resolution and determination if not successfully conciliated by the Tribunal. The rule was amended on 6 February 2018, by the South Australian Employment Tribunal (Amendment No. 1) Rules 2018. Rule 11 no longer assigns any proceeding referred to SAET under the EO Act to the Court.

[46] Ritson v South Australia Police supra at [67] per Deputy President Judge Hannon.

[49] [2019] SAET 239.

[50] [2020] SAET 111.

[51] Section 109 Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'); s 60 Civil and Administrative Tribunal Act 2013 ('NCAT Act') (and see s 13 for the limited areas where NCAT may not award costs); ss 100 and 102 Queensland Civil and Administrative Tribunal Act 2009; s 87 State Administrative Tribunal Act 2004; s 120 Tasmanian Civil and Administrative Tribunal Act 2020 ('TasCAT Act'); s 48 ACT Civil and Administrative Tribunal Act 2008.

[57] Sections 47 and 48 SACAT Act and reg 11 of the SACAT Regulations.

[58] Tadawan v South Australia [2001] FMCA 25.

[59] Tadawan v South Australia [2001] FMCA 25 [62] - [63]; McKenzie v Department of Urban Services [2001] FMCA 20; (2001) 163 FLR 133, 156 [95]; Ryan v The Presbytery of Wide Bay Sunshine Coast [2001] FMCA 12 [20] and others.

[60] See AHRC Federal Discrimination Law: Chapter 8 Costs awards.

[61] See, for example, Tate v Rafin [2000] FCA 1582, [71]; Creek v Cairns Post Pty Ltd [2001] FCA 1150, [1]; Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414, [57]; Paramasivam v Wheeler [2001] FCA 231, [24] (Hill, Tamberlin and Carr JJ); Jacomb v Australian Municipal Administrative Clerical & Services Union [2004] FCA 1600, [4]; Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd (No 2) [2003] FMCA 516, [11]; Ball v Morgan [2001] FMCA 127, [93]; Gluyas v Commonwealth (No 2) [2004] FMCA 359, [5]; Hollingdale v North Coast Area Health Service (No 2) [2006] FMCA 585, [10].

[62] [2004] FCA 594.

[63] [2008] NSWADT 166.

[66] Damages and Costs in Sexual Harassment Litigation: A Doctrinal, Qualitative and Quantitative Study: Thornton, Pender, Castles, October 2022 published by the ANU and the Commonwealth AGD.

[67] Australian Human Rights Commission Amendment (Costs Protection) Bill 2023.

[68] I note that the Bill proposes adopting the requirements of the 'equal access model' (which would prevent a court from ordering an applicant to pay the respondent's costs except where the applicant had acted vexatiously or unreasonably) with the ability to award costs against an applicant in circumstances where the respondent has been successful on all grounds, the respondent does not have a significant power advantage over the applicant and the respondent does not have significant financial or other resources, relative to the applicant.

[69] Nguyen v Ross & Anor [2023[ SACAT 49 [712], p 115 referencing T 31/5/22 p 10.