Victorian Civil and Administrative Tribunal|2008-06-30

Tan v Xenos (Anti-Discrimination) [2008] VCAT 1273 (30 June 2008)

Written submissions filed 13 May 2008 and 28 May 2008

Tan v Xenos (Anti-Discrimination) [2008] VCAT 1273

On April 2008, after a fifteen day trial, I found that the Respondent had sexually harassed the Complainant. I ordered the Respondent to pay the Complainant damages in the sum of $100,000. The Complainant now applies for an order that the Respondents pay the Complainant's legal costs of this trial.
I have awarded the Complainant the sum of $100,000. Her actual legal costs are estimated to be over $180,000. This includes Counsel's fees at the hearing of $65,000, and solicitor's fees of over $12,000, and various disbursements.
Thus, if an award of costs is not made to her she will have won her case, but still be substantially out of pocket.
The Respondent is also liable for a significant amount in legal costs. His solicitor estimates that figure at over $200,000. He says that the Complainant chose to bring this proceeding in what is essentially a costs free jurisdiction. If he is to pay her legal costs as well as his own, the effect of the successful judgment will be catastrophic to him and well in excess of the result the judgment was designed to achieve.

This Tribunal has no inherent power to award legal costs to a party. The only power I have is that found in section 109 of the Victorian Civil and Administrative Tribunal Act 1998. That section provides the usual rule to be that each party bear its own costs in a proceeding. It further provides that I should make an order for costs only where I am satisfied that it is fair to do so, having regard to a range of factors which are set out in subsection 3.
I was referred to several decisions of this Tribunal in which a successful application has been made for an award of costs.

Costs where a party has a hopeless case or has been dilatory in complying with orders

Most costs orders appear to have been made against unsuccessful Complainants whose cause of action has been hopeless from the start. Costs orders against Respondents have usually been made where the Respondent has not complied with interlocutory orders, or to take into account the manner in which the Respondent has conducted the defence, or the maintaining of any clearly hopeless defence.
In Khalil v Wallace (2006) VCAT10, a costs order was made against a Respondent who did not appear at directions hearings and failed to provide a current address for service, with the result that the Complainant incurred unnecessary costs. A similar approach was taken in Meenks v Torrill Pty Ltd v Anor (2000)VCAT 1086, where a Respondent had been dilatory in raising procedural issues, and had so caused unnecessary expense to the Complainant. Another example of this approach is Davies v State of Victoria (2000) VCAT 819.
In _Mangan v Melbourne Cricket Club (_2006) VCAT792, a modest award of costs was made against a Respondent on the basis that the result of the case had advanced the public interest.
No clear principle of law emerges from those cases, except that each application must be judged on its merits and in the light of the raison d'etre of the Tribunal, which is to promote affordable and timely access to justice.

The Complainant has relied on the manner in which this proceeding was conducted, in similar fashion to that in a court, to justify an award of costs. In particular the Complainant points to the power in section 109 to take into account the nature and complexity of the proceedings.
This argument was successful before His Honour Judge Dove in Bryce v City Hall Albury Wodonga Pty Ltd trading as City Hall Hotel (2004)VCAT 2013. He described the trial as follows:

"The proceeding was a strongly contested action. Very much like a civil claim in negligence, both liability and damages were in issue. In all, fourteen witnesses were called, and the majority of those were cross-examined in detail and at length. During the hearing, it became apparent to me that neither side was willing to make any concession to the other. In sporting terms, it was a bruising battle. It has been stated, correctly, that it ran for four days. Expedition, which is a cornerstone of the Tribunal, as opposed to the often cumbersome and protracted hearings in courts of law, was not in the minds of the parties or their legal representatives here."

Much of the above quotation could be applied to the proceeding before me, save that this proceeding before me ran for fifteen days, not four.
In that case, as recognition of the complexity of the matter and its commercial importance to the parties, His Honour awarded costs to the successful Complainant.
This approach has also been followed in cases at the Tribunal in several of its lists, particularly in relation to complex commercial disputes. A long, complex commercial dispute is, however, very different to a long, complex dispute in the anti-discrimination list. In this list, further considerations apply.

Decisions regarding costs in the Anti-Discrimination list of this Tribunal have emphasised the objective set out in section 3 of the Equal Opportunity Act, to provide redress for people who have been sexually harassed or discriminated against, and that it is important that potential claimants are not deterred from seeking redress by the prospect of a significant costs order against them.
In Styles v Murray Meats Pty Ltd (2005)VCAT 2142 the Tribunal was urged to make a costs order in a sexual harassment claim. It was suggested to the Presiding Member that if recompense for representation was not allowed in such cases, the cost of representation might deter Complainants from seeking the redress available for them under the Equal Opportunity Act. The Tribunal rejected that argument and observed:

"I accept that the Equal Opportunity Act is social justice legislation. It is not legislation which concerns property of trade and commerce but relates to personal attributes and to decisions of a personal nature.... I accept that it is important that the redress provided by the Equal Opportunity Act should not be undermined or made less accessible because potential claimants fear orders for costs against them if they lose. This is a good reason for not applying an automatic rule that cost follow the event. Section 109 does not do this. It requires each case to be considered on its own circumstances."

The Tribunal went on in that case to award costs to the Complainant after taking into account that the Respondent's defence to the claim of sexual harassment was very weak.
The basis for the generally cautious approach to awarding costs is to preserve access to the Tribunal for claimants. The Tribunal is also concerned not to discourage litigants from presenting their claims in person, without legal representation. If costs were generally awarded for successful claims, or against unsuccessful claimants, the issue of costs would become a significant barrier to issuing in this forum. In this case, it is the successful claimant who stands to lose if costs are not awarded, but this will not always be the case. If costs orders were made as a matter of course, to "follow the event" as is the case in the Courts, a significant advantage of access to this Tribunal would be neutralised.
There are powerful contrary arguments. If costs are not recoverable, the real value of an award made by the Tribunal may be significantly eroded. This case is a good example. But this consideration will apply to all successful applicants before this Tribunal. Parliament did not intend that this Tribunal ape the costs regime of the Courts.

Many cases before the Tribunal involve simple findings of fact. This was a case which on its surface was simple. The Complainant complained that she had been sexually harassed at work. It was a matter of deciding whether the Complainant's sworn evidence that she had been so harassed was to be believed. To that extent, it was simply a case of "oath against oath".
Had the case been fought only on that basis, I do not believe an order for costs could be contemplated. There is no special rule about costs of sexual harassment claims. The fact that conduct has been found proved does not of itself justify an award of costs under section 109. This is the case no matter how outrageous the conduct may have been, or how serious the consequences of the harassment to a Complainant. The present scheme of the Act is that orders for costs should not follow a successful outcome in this Tribunal, except in special and limited circumstances.
In the early days of this trial, I suggested to the parties to think carefully about the costs consequences of this hearing. An earlier mediation had been unsuccessful. I arranged for a mediator to stand by in the event that the parties could agree to a further mediation. My offer was not taken up. The Respondent has included some material as to the Complainant's alleged lack of cooperation in settlement discussions and the Complainant has done the same. It is tragic that this case was not resolved at mediation. However, there is nothing in the material regarding the circumstances surrounding settlement discussions which in my view justifies a costs order. Both parties were entitled to have this dispute decided at a hearing. Neither party should be penalised for refusing a second offer of mediation, when the first was unsuccessful.
Thus the primary rule to be applied, driven by the terms of section 109 of the VCAT Act, is that the costs of this proceeding should lie where they fall.

However, this was not a simple case of oath against oath. In defence of the claim, the Respondent suggested that the Complainant had fabricated the allegation because she was in danger of failing her assessment as a neurosurgeon. He said he could prove that she was in danger of failing, and that as a response to a failed assessment she fabricated this claim of harassment. He said she fabricated this claim 12 months after it was alleged to have happened. He relied on the fact that the assault was first publicly reported to the hospital at a meeting shortly after she had received the news that she was to be failed in her assessment as a neurosurgeon.
Once the defence was put on this basis, the Complainant sought to rely on evidence from many sources that she had complained of the harassment shortly after it occurred, to rebut the suggestion that she had fabricated the claim.
The resolution of these issues was difficult. It involved such questions as the appropriate use of complaint evidence in a civil hearing, and the use of circumstantial evidence. It involved weighing up a great deal of evidence about the Complainant's professional performance, and evidence that she had complained to others of the harassment.
The Complainant submits that this is therefore a case in which it is fair that an award of costs be made. In arguing for the award, the Complainant relies on the width of section 109(3) which imposes an obligation on me to make an award of costs if it is fair to do so. The Complainant also specifically relies on subsections (b) through to (e). Those subsections refer to a party having unreasonably prolonged the time taken to complete the proceeding, the need for me to assess the relative strengths of the claim, including whether a party has made a claim that has no tenable basis in fact or law, the nature and complexity of the proceeding, and any other matter I think relevant.
The evidence led by the Respondent about the Complainant's professional standards occupied many days of the hearing. The evidence of her prior complaints also occupied many days of the hearing.
On the first day of the hearing, counsel for the Complainant applied for me to disallow evidence of the Complainant's past professional performance, or as a fallback position to allow only so much of that evidence to be led as revealed that she herself knew she was in danger of failing her professional assessment at around the time of her formal complaint to the hospital - that is, in early 2006. Counsel for the Respondent argued that all of the material to be led, from the time she commenced her training in January 2002, and including a period long after the harassment, stretching up to late 2007, was relevant to my task, particularly in assessing the credibility of the Complainant.
The solicitor for the Respondent has deposed that I remarked in the course of that ruling that "the questions of performance at Adelaide would be relevant". This remark should be seen in context. At that stage I was dealing with an application to admit evidence from Dr Weidman, a witness who it was said would give relevant evidence of the Complainant's performance at Adelaide (as well as her performance at other locations), but for whom a witness statement had not been prepared. I took the view that it was not so clear as the Complainant had argued, given the early stage of the trial, that her performance at Adelaide, and in the other locations in which she had trained, would be irrelevant. I was deciding whether the evidence could be led at all, not whether the evidence was in fact relevant. It was incumbent on the Respondent and his legal advisers to consider whether or not the evidence was in fact relevant to the question I had to decide. Once the evidence was in, it was apparent that much of it was of marginal value to me in determining whether or not the sexual harassment occurred.
So the question is, did the Respondent, by introducing the evidence of performance, conduct the case in a manner which entitles the Complainant to an award of costs?
In my view it is appropriate that costs should be awarded to the extent that the hearing was unnecessarily lengthened. However, I acknowledge the difficulty of the task faced by the Respondent's legal advisers in determining what evidence of performance was relevant. Several of the witnesses who gave evidence appeared to have based their views on whether or not the sexual harassment had occurred on the Complainant's professional performance. The Hospital which employed both parties had already carried out an internal enquiry into the claim of harassment. During the course of that enquiry issues of professional performance had been clearly raised and treated as relevant. Much of the evidence garnered by this enquiry was properly led in defence of this case.
Further, several of the witnesses present at the meeting on 2 February 2006 gave evidence that they thought the Complainant was attempting to blackmail them. This allegation, if proven, would have been greatly relevant to the case. The question of whether or not the Complainant's words at that meeting constituted a blackmail threat involved consideration of evidence of her state of knowledge as to how her performance was viewed at the time the threat was said to have been made, and it was appropriate that this evidence of performance was explored.
But in my view the Respondent's legal advisers should have been able to distil any relevant evidence from the mountain of material that they produced well before the trial commenced. Often it appeared to me that the material being led by the Respondent had not been evaluated at all before it was led in evidence. Often the same points were made unnecessarily over and over again. Much of the cross-examination of witnesses appeared to have no forensic purpose. It was the failure of the Respondent or his legal advisers to identify exactly how the evidence that was being led assisted the Respondent's defence, which significantly extended this hearing.
I have referred in my reasons to being satisfied that the Respondent deliberately introduced this evidence of performance, and magnified it out of proportion, to make it fit his claim that she had fabricated the claim. It is reasonable to conclude that the Respondents advisers were hampered in their assessment of this evidence by the Respondent's own overstated assessment of the Complainant's professional deficiencies.

What should be the quantum of my costs order? The cases to which I have been referred have generally made quite small awards of costs. In most cases awards have been made on scale A or B of the County Court scales, scales which have long been redundant for all practical purposes in the County Court itself.
In this case the actual legal costs are very substantial indeed.
It is impossible for me to make a precise estimate as to the costs occasioned by the manner in which the hearing was conducted. The affidavit of Julie Kennedy, filed in support of this application, estimates that at least 10 of the 15 hearing days were consumed by the evidence relating to the Respondent's allegation of invention. However, as I have indicated, it is hard to separate out the evidence which was properly led from that which was not.
Doing as best I can, my estimate is that one third of the hearing time was wasted by reason of the presentation of irrelevant evidence, and by reason of the manner in which it was presented. I will therefore order that the Respondents pay the Complainant a third of the Complainant's taxed costs of this proceeding.
The Complainant has requested that I make an order for costs on a solicitor client basis. In my view gross behaviour during the presentation of a case would be required to justify the award of solicitor client costs in this Tribunal. I do not propose to make an order for solicitor client costs in this case.
I realise that this award will still leave the Complainant substantially out of pocket. The Complainant has submitted that Parliament cannot have intended that a successful Complainant could be put in this situation. The difficulty with that argument is that it potentially applies to all successful Complainants in this jurisdiction.
In making this award, I wish to reiterate that this decision should not be seen as authority for the proposition that costs should be awarded when cases are large, or the sexual harassment is severe. I am making this award only to provide some recompense to the Complainant for the manner in which the hearing was unreasonably extended, as I have detailed in these reasons.

Tan v Xenos

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Tan v Xenos (Anti-Discrimination) [2008] VCAT 1273 (30 June 2008)

Parties