The effect of s.109(1-3) is that subject to the division, costs lie where they fall, but the Tribunal may order a party to pay all or any part of another party's costs only if it is satisfied that it is fair to do so, having regard to a number of specified factors. These factors relevantly include whether a party has conducted the proceeding in a way that unnecessarily disadvantages another party by conduct such as causing an adjournment, among other things, or also whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding. Another factor is the relative strengths of the claims made by the parties, including whether a party has made a claim with no tenable basis in fact or law. Another factor is the nature and complexity of the proceeding, and the final factor is any other factor that the Tribunal considers relevant.

The reference to the nature of the proceeding and also to other factors which the Tribunal considers relevant, permits the Tribunal, in my view, to take into account that this is a proceeding under the Equal Opportunity Act, legislation with an objective to limit discrimination as far as possible, and to provide redress to its victims. This legislation is of a social nature with a focus on conciliation. Those factors also, in my view, enable me to take into account the effect which an award of costs might have on encouraging or discouraging parties from accessing the jurisdiction established by the Equal Opportunity Act.

There are many other factors which may, in the particular circumstances of each case, be relevant. The list of factors is not, as the respondent would have it, limited to where a party has acted with gross unreasonableness or not in good faith.

The complainant seeks costs on the following grounds:

(1) The strike out application was made very late in the proceeding and caused the hearing date to be vacated and moved to a later date. The respondent has conducted the proceeding in a manner that unnecessarily disadvantages the complainant.

(2) The making of the application unnecessarily prolongs the time which will be taken to complete the proceeding.

(3) There was no tenable basis for their making the strike out application.

(4) The complainant notified the respondent of its intention to seek costs if the strike out application were refused.

I first deal with the lateness of the application and the complainant's submission that the respondent's conduct caused an adjournment or unnecessarily prolonged the time taken to complete the proceeding.

After this complaint was referred to the Tribunal, the complainant filed and served particulars of complaint. This occurred in November 1998. These particulars of complaint made it clear that the complainant's claim of discrimination was based on a number of grounds, including industrial activity.

The respondent filed and served particulars of defence on 4 February 1999. These particulars included a paragraph alleging that the complainant and her co-workers did not constitute an industrial organisation, and therefore that the complainant could not claim discrimination on the ground of industrial activity.

On 18 March 1999 a compulsory conference was held at which the Tribunal set a time-table for the exchange of witness statements leading to the hearing, and also fixed the hearing date. That date was at that time fixed for 21 May 1999. On 25 March 1999, the respondent requested a change of the hearing date. On 26 March 1999, with the consent of the complainant and the respondent, the Tribunal fixed a new hearing date for 11 June 1999.

The respondent filed and served its application to strike out the complainant's claim of discrimination, based on industrial activity, on 20 April 1999. The Tribunal vacated the June hearing date by direction dated 30 April 1999.

The complainant submits that the respondent could and should have applied for the strike out on or after filing its particulars of defence on 4 February, rather than waiting until two hearing dates had been fixed by the Tribunal, and indeed until almost four weeks after the second of those hearing dates had been fixed.

The respondent submits that the strike out application under s.75 of the VCAT Act 1998, may, according to that provision, be made at any time, and that it applied when it did in the following circumstances. There was another complaint by Ms Reece against the State of Victoria. That complaint also raised similar issues in relation to what constituted industrial activity and concerned similar facts to the present complaint in relation to that particular issue.

The respondent applied to have that claim in that complaint struck out and the Tribunal, without directing detailed submissions from the parties, refused the application on the basis that the issue was more appropriately dealt with at the full hearing of the complaint. The complaint was then withdrawn in late March 1999. The respondent then applied to have this claim in this complaint struck out.

I accept the complainant's submissions on this point. It is clear that s.75 permits a strike out application to be made at any time. The Tribunal cannot refuse to entertain the application on the grounds that it is made at a relatively late stage in the proceedings, but in certain circumstances, delay in making the application may open a respondent to an award of costs if the application fails, and it can be shown that by making the application as late as it did, the respondent unnecessarily disadvantaged the complainant.

Here, it was clear on 4 February 1999, when the respondent filed its particulars of defence, that it claimed that the complainant's allegations in relation to industrial activity were not capable of constituting industrial activity within the meaning of the Act. The respondent could have applied then to have that claim struck out. I do not accept that the course of another complaint, to which this complainant was not a party, is a sufficient and reasonable explanation for the delay. In fact, the respondent, without raising the possibility of the strike out application, allowed the Tribunal to set a time-table for hearing and two hearing dates. The respondent only applied for the strike out several weeks after the second of those hearing dates had been set. The fact that the hearing was to occur within a relatively short time after the respondent did make its strike out application in effect compelled the Tribunal to vacate that hearing date also. In my view, this amounts to conduct by the respondent which unnecessarily disadvantages the complainant.

However, I am not prepared to say that this conduct caused an adjournment of the proceeding, because the hearing of the complaint had not yet begun. Strictly, in my view, the hearing date was vacated rather than adjourned. I am also not prepared to say that the respondent's conduct in making the application unreasonably prolonged the date taken to complete the proceeding. A respondent has a right under s.75 of the VCAT Act, to make an application of this kind. The hearing and determination of such an application as this will almost invariably mean that the proceeding as a whole will take longer to complete than it would if a strike out application were not made. But I do not think that this factor was meant to be used to, in effect, deprive the respondent of the right to make a strike out application because costs might follow. It seems to me that the provision was intended rather to cover conduct of an unreasonable kind which delays the completion of the proceeding.

The respondent was also said by the complainant to have had no tenable basis for the strike out application. The respondent argues on the contrary that there was a tenable basis for making the application. On this point I agree with the respondent. The point was a novel and difficult one, and unlike what seems to me to have happened with the application to strike out the Reece complaint, this application was argued in a comprehensive and detailed way by the parties.

On the basis of the Second Reading Speech for the Bill which eventually became the Equal Opportunity Act 1995, and on the basis of some of the meanings given to the words "industrial" and "organisation" in various dictionaries, and of the meanings given to the term in some legislative contexts, it was not unreasonable for the respondent to contend that the complainant and her co-workers did not constitute an industrial organisation, even though the Tribunal in the end rejected that contention.

The complainant says also that the complainant had put the respondent on notice that costs would be sought if the strike out application failed, and also says that the respondent was put on notice of the basis for seeking costs in that event. There may be circumstances where the failure to give another party notice that one party intends to seek costs if the Tribunal's decision goes a particular way, will make it unfair for the Tribunal to award costs, but the giving or failure to give notice of intention to seek costs cannot, in most cases, be a determinative factor in the decision to award or not to award costs. In other words, the giving of notice of intention to seek costs does not mean that the Tribunal must, therefore, automatically award costs. Conversely, the failure to give notice of intention to seek costs does not mean that the Tribunal will automatically refuse to award costs to the party who failed to give the notice.

Here, the giving of the notice by the complainant does not affect my decision. I should also say that I do not accept two other submissions made by the complainant. The first was that the respondent conducted the proceeding unreasonably in that its written submissions on the strike out application were brief and superficial and gave the complainant little idea of the comprehensive arguments which were put by the respondent at the hearing of oral submissions. I do not agree. The respondent's written submissions, combined with its particulars of defence, gave the complainant sufficient idea of the case that the complainant would have to meet on the strike out application.

The second submission was that the strike out application was time-wasting, because even if it was successful it would not shorten the evidence which would have to be called, or the submissions which would have to be made at hearing. I do not accept this submission. The test of whether a respondent has acted unreasonably in making a strike out application is not whether the application would, if granted, result in a shortening of the ultimate hearing of the complaint; it is whether there was no tenable basis for the application, or whether the respondent could have had no genuine or reasonable belief that the application would succeed or whether the application was vexatious. In any event, it may well be that the submissions on the application and the decision of the Tribunal will mean that the submissions on this matter at hearing, if they are made, can be shorter than they otherwise would be.

I am satisfied that the respondent, in making the strike out application, genuinely sought to strike out this particular claim in the complaint and was not, as the complainant submitted, merely seeking some sort of advisory opinion from the Tribunal.

In my view, costs should be awarded to the complainant, but only to the extent of costs thrown away in consequence of the vacation of the 11 June hearing date, which in turn occurred because the strike out application was made. Because at this stage the relief sought has not been specified, the costs should be awarded on scale A of the County Court scale.

I have made orders accordingly, and these will be sent to the parties.