Summerville and Department of Education & Training & Ors [2006] WASAT 368 (15 December 2006)

A v B & Anor [1991] HREOCA 6; (1991) EOC 92-367

Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143

Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168

Hall & Ors v A & A Sheiban Pty Ltd & Ors [1989] FCA 72; (1989) 20 FCR 217

McAlister v SEQ Aboriginal Corp for Legal Services [2002] FMCA 109

Victoria v the Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 399

17 In a preliminary decision delivered 30 June 2006, the Tribunal ruled that, at the hearing of the applicant's complaint, she would be limited to pursuing allegations of sexual harassment and sex discrimination, including bullying alleged to constitute part of that alleged sexual harassment or sex discrimination, against Mr Joyce or Mr Furtado, but not allegations made in her statement of sexual harassment or sex discrimination by other officers of the Department as these had not been the subject of her original complaint to the Commission: (See Summerville and Department of Education & Ors [2006] WASAT 174).

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J, cited with approval in Hardy v Kelly & Anor (1991) EOC 92-369 EO Bd (Vic) at 78,560

25 The possible circumstances in which the Tribunal might make a costs order have been discussed in a number of cases: see generally Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341.

26 The principles as generally stated have also been applied in relation to proceedings in the Tribunal under the EO Act. In Chew and Director General of the Department of Education and Training [2006] WASAT 248, the Tribunal (Her Honour Deputy President Judge Eckert presiding) observed the starting out position under s 87(1) and s 87(2) of the SAT Act: see [84]. The Tribunal at [85] observed:

32 For example, in Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311, the High Court of Australia found that costs were properly awarded against the respondent - a husband who was found to have misrepresented his financial position to the court at the commencement of the action, putting the applicant wife to much expense in investigating and establishing the true position - notwithstanding that under the Family Law Act 1975 (Cth), as it applied at the time, costs ordinarily would not be awarded in family law proceedings. Justice Murphy at 318 observed that:

34 However, in Wilson v Phoenix Contracting Services Pty Ltd [1998] VSC 81, costs were awarded against an unsuccessful sexual harassment complainant where the complainant's evidence was not to be preferred over that of other witnesses, was described as "implausible" and was inconsistent with the documentary evidence: at [5].

36 In relation to the question of an incredible or implausible case that has no foundation in fact, or a case that is adjudged as being so weak that it should not have been maintained, the relative weakness of the unsuccessful party's case has also resulted in the award of costs against that party: see Gonsalves v MAS National Apprenticeship Services [2007] VCAT 64, in which the applicant's sexual harassment claims were described at [15] as based on a "flimsy premise". See also Styles v Murray Meats Pty Ltd [2005] VCAT 2142 at [21]. These latter Victorian cases, however, it should be noted, were decided by reference to s 109(3) of the Victorian Act which requires the Victorian tribunal to consider "the relative strengths of the parties' cases".

44 In some cases a further factor deemed to support a successful complainant's application for costs has been the public interest nature of the proceedings. In Squires and Qantas Airways Ltd the complainant, although profiting from her proceedings, also established a principle relevant to other women in her position. At 76,341 the Tribunal noted the injustice of the complainant bearing the considerable costs of the action while others enjoyed the benefit. That said, not every anti-discrimination action will be considered to contribute to the development of the law albeit for the benefit of a broader class of persons and will not be characterised as public interest litigation: see Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 1060 per Drummond J at [12].

(1989) 20 FCR 217

(1971) 122 CLR 353

(1938) 60 CLR 336

(1980) 144 CLR 311