Pursuant to sections 78 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') this Tribunal orders -

1. That the Complainant must pay to the Respondents their costs thrown away in respect of the vacation of the Hearing listed to commence on 29 October 2002. Those costs are to be on a party/party basis and on Scale 'A' of the County Court scale and, in default of agreement, are to be assessed or settled by the Principal Registrar. They are to b paid on a date agreed between the parties or, in default of agreement, to be fixed by the Principal Registrar.

2. That in all other respects the Respondents' Application under sections 78 and 109 of the VCAT Act is dismissed.

For the Complainant: Mr M. Segal, paralegal, Ronald Segal & Associates

For the Respondent: Ms C. Gordon, Solicitor, Minter Ellison

[1] I am now in a position to hand down my Reasons for decision and Order on this Application. It was an application that was dealt with on written submissions. My Order is that in respect of costs thrown away in relation to the vacation of the Hearing listed for 29 October 2002, Ms Sharp is to pay the Respondents' costs on Scale 'A' of the County Court Scale on a party-party basis and, in all other respects, the Application is dismissed.

[3] The Respondents in this matter have applied under s.78 of the Victorian Civil & Administrative Tribunal Act 1998, which I call 'the VCAT Act', for their costs, which were costs reserved by Directions dated 14 May 2002, and for costs in respect of the vacation of a four-day hearing of this matter which was listed to commence on 29 October 2002 but was vacated on that date.

[4] They also apply for an order that any costs awarded in their favour be paid before the proceeding can be continued by Ms Sharp. They had, in addition, applied for the proceeding to be dismissed or struck out under s.78 of the VCAT Act but, on 29 October 2002, the Tribunal refused that application.

[5] As I said, I have before me written submissions and also oral submissions from the Respondent and certain material which is attached to those submissions. Written submissions for the Complainant include submissions by Ms Sharp herself at a time when she was not legally represented, and also written submissions by her current solicitors. The material before me also includes medical certificates from Ms Sharp's treating general practitioner, Dr Woodgate, dated 28 October 2002, and from her treating psychiatrist, Dr Wahr, dated 30 October 2002, supporting the adjournment of the hearing which was listed for 29 October of that year.

[6] From the material before me, the relevant history of this proceeding is as follows. This matter was originally listed for hearing in March 2002. That listing was, in February 2002 changed so that the hearing would commence on 14 May 2002. The change was made to allow for further material to be filed and served by the parties. The hearing was listed for four days. By the date fixed for the hearing, the parties had filed and served all their witness statements and other material.

[7] On the day before that hearing date, that is on 13 May 2002, Ms Sharp's then solicitors requested that the hearing of the matter be dealt with rather as a mediation and that, in effect, the hearing be vacated. The Respondents agreed to this request and the matter went on as a mediation on 14 May 2002.

[8] After the Mediation had continued for some hours, Ms Sharp requested an adjournment on the basis that she felt too unwell to proceed further. The mediator, who is a senior member of this Tribunal, adjourned the Mediation to an Administrative Mention to occur by 15 August 2002 and reserved the Respondents' costs of the day.

[9] It is clear from the Tribunal's file and the submissions that when the matter came before the mediator again in August 2002 the Respondents wished for further mediation. Ms Sharp wanted the matter to go to hearing. Therefore the matter was listed for a four day hearing, this time to commence on 29 October 2002.

[10] On 28 October 2002, the day before the hearing was scheduled to commence, Ms Sharp's then solicitors notified this Tribunal that they had ceased to act for her.

[11] Later that afternoon, Ms Sharp wrote to the Tribunal requesting that the hearing be adjourned. She included in her request a certificate from her treating general practitioner, Dr Woodgate, stating that because of a medical problem Ms Sharp would be unfit to attend court until at least 28 November 2002.

[12] On 29 October 2002, a Directions Hearing was held before me in this matter. I spoke by telephone to Dr Woodgate and Counsel for the Respondents took up the opportunity to ask Dr Woodgate questions. Dr Woodgate repeated what she had said in her certificate and added that she was aware that Ms Sharp had been having problems concerning her legal representation and that Ms Sharp had told her this at an attendance on 21 October 2002. Ms Sharp had told her that she felt that she would be unable to cope with a hearing without legal representation.

[13] Ms Sharp includes in her material a certificate from her treating psychiatrist, Dr Wahr, dated the day after the scheduled date for the hearing: that is, dated 30 October 2002. That certificate states that Ms Sharp was then suffering from an agitated depressive reaction, was distressed and would be unable for at least six weeks to make realistic decisions or be involved in legal proceedings.

[14] The Respondents ask for the reserve costs of 14 May 2002 and for their costs thrown away in relation to the vacation of the Hearing listed for 29 October 2002, on the basis that Ms Sharp's conduct of the proceeding has unnecessarily disadvantaged them and that it would be fair to award costs against her. They seek costs under s.78 of the VCAT Act. That section, among other things, applies if the Tribunal is satisfied that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party.

[15] Section 78(1) gives examples of conduct of this kind. Those examples are preceded by the words "such as" and are clearly not exhaustive. Among other things, conduct of this kind includes causing an adjournment and also failure to attend the hearing of the proceeding. Among other things, where the section applies, the Tribunal may make an order for costs under s.109. The effect of s.109 of the VCAT Act is this. Each party must bear their own costs unless, having regard to a number of factors listed in s.109(3), the Tribunal considers it fair to order otherwise. One of these factors is that a party has conducted the proceeding in a way that unnecessarily disadvantages another party. Examples of that conduct are given. Again, they are not exhaustive. They are preceded by the words "such as". One of the examples is causing an adjournment.

[16] Another factor which the Tribunal must consider under s109(3) is the nature of the proceeding.

[17] The effect of s.109(6) is that if the Tribunal orders costs before the end of a proceeding, it may require those costs to be paid before the proceeding can continue.

[18] The Respondents say that Ms Sharp's conduct of the proceeding has unnecessarily disadvantaged them for the following reasons.

(A) The Respondents have twice been required to be ready for a hearing that did not occur, on both occasions because Ms Sharp made the request at the last moment for the hearing not to take place.

(B) The fact that, because of a dispute between Ms Sharp and her then solicitors, her then solicitors ceased to act for her on 28 October 2002 and she then became too distressed to participate in the hearing without representation, was no fault of the Respondents and the Respondents should not have to bear the costs of the vacation of that hearing date.

(C) Ms Sharp or her then solicitors ought to have notified the Tribunal and the Respondents as soon as she understood that a serious dispute had arisen between her and her then solicitors which might impact on her ability to go to a full hearing. She only raised the matter with the Respondents and the Tribunal in the afternoon before the hearing was due to occur.

(D) Even if it is accepted that Ms Sharp's understanding from discussions with her former solicitors was that in this jurisdiction the Tribunal rarely orders costs, this is irrelevant to whether her conduct of the proceeding unnecessarily disadvantaged the Respondents. There is no evidence before this Tribunal given by her solicitors as to whether in fact this is what they told her. Her Particulars of Complaint seek orders for costs against the Respondents. When costs were reserved at the time of the adjourned Mediation she ought to have been aware that there was a serious possibility that when the Tribunal came to consider the reserved costs it might order costs against her.

[19] Ms Sharp opposes the application for these reasons.

(A) The Respondents agreed to vacate the May hearing date and to participate in the mediation. That mediation was only adjourned when Ms Sharp became too ill to proceed, and then only after several hours of discussions.

(B) There is a reasonable excuse for Ms Sharp's late application to adjourn the October hearing. This was because of the late withdrawal of her legal representatives and her subsequent illness. That illness is evidenced by the medical certificates from Dr Woodgate and Dr Wahr.

(C) Ms Sharp did not fully understand the possible cost ramifications of her late application to adjourn the October Hearing.

[20] On the material before me, I conclude that in respect of the reserved costs of 14 May 2002, there should be no order as to costs. I am not satisfied that Ms Sharp's conduct of this proceeding unnecessarily disadvantaged the Respondents. I am not prepared to say that, whichever party initiated the request for mediation, if the parties by consent vacated the hearing date and proceeded to mediation this can constitute conduct disadvantageous to any party. Conciliation and mediation are both focuses of the Equal Opportunity Act 1995 and the VCAT Act. To attempt to achieve a negotiated resolution cannot be disadvantages to the parties.

[21] Nor am I prepared to order costs in favour of the Respondents because the mediation was adjourned. There is no suggestion in the material before me that Ms Sharp did not come to the mediation in good faith or fully intending to conclude it on that day. Her subsequent illness prevented this occurring. In my view, there is no unnecessary disadvantage to the Respondents here.

[22] As far as the vacation of the October hearing date is concerned, I am satisfied that by not applying earlier for the adjournment, by not applying for it as soon as Ms Sharp ought reasonably to have been aware that the dispute between her and her former solicitors had become so serious that it was likely to impact on her readiness for hearing, she conducted the proceeding in a way that unnecessarily disadvantaged the Respondents. Section 78 of the VCAT Act therefore applies.

[23] However, under s.78(2)(c) my power to award costs against Ms Sharp under s.109 of the VCAT Act is discretionary. Section 109 itself has the effect that I can only award costs against her if it fair to do so, having regard to the factors listed in s.109(3). Undoubtedly one of these factors is the same as the factor listed in s.78(1), namely that the party has conducted the proceeding in a way that unnecessarily disadvantages another party.

[24] But the fact that I find this factor to exist in this case does not mean that I must automatically order costs against Ms Sharp or that I cannot consider whether it is fair to order costs in the Respondents' favour. One of the other factors under s.109(3) that I must also consider is the nature of the proceeding. This is a complaint, a proceeding under the Equal Opportunity Act, an act with social rather than commercial objectives, that is concerned, among other things, with the elimination of discrimination and the provision of redress to its victims. I must consider whether any costs order might undermine that objective.

[25] Against this, I must balance the fact that the vacation of the hearing date was in no way caused by the Respondents.

[26] On balance, I consider that it is fair to order Ms Sharp to pay the Respondents' costs thrown away because of the vacation of the hearing date. Those costs would not of course include matters such as the preparation of witness statements for the hearing, because that materials will presumably be able to be used when the hearing occurs.

[27] I note from paragraphs 46 to 50 of Ms Sharp's Witness Statement of January 2002 that her claim would at least appear to be for more than $20,000, although the exact amount of her claim is not clear. However, taking into account a number of matters, I consider that Scale 'A' of the County Court Scale is the appropriate scale for the order.

[28] First, I take into account that this is a proceeding under the Equal Opportunity Act and the nature of that legislation.

[29] Second, I take into account that the degree of seriousness of Ms Sharp's conduct is not as great as it might perhaps be. She has not, for example, given evidence at a hearing which is totally implausible. She has not brought this proceeding vexatiously. She has not flouted Tribunal directions. She has, however, applied later than she ought for the hearing to be adjourned. However, I take into account that her inability ultimately to attend that hearing was, according to the unchallenged medical evidence, because she was medically unfit to attend.

[30] For all these reasons, as I said, I consider the appropriately scale to be Scale 'A'. In default of agreement, costs are to be assessed or settled by the Principal registrar.

[31] The Respondents asked me to order that the proceeding not continue until the costs are paid, on the basis that twice before Ms Sharp has asked for adjournments on too short notice. Again, Ms Sharp opposes this order. I am not satisfied that there are sufficient grounds to make this order.

[32] I have already made orders staying this proceeding until Ms Sharp can provide to the Tribunal and the Respondents a certificate from her treating psychiatrist as to her fitness to attend and to participate in the Hearing. There is no evidence before me that she would be unable to pay costs if they were eventually ordered. On this basis, this part of the Application therefore fails.