1. The respondents submit firstly, that the complaint and the resulting inquiry before the Tribunal lacked merit. The respondents submit that the materials filed by the complainant as the Tribunal proceedings progressed support the respondents' position that the complainant does not have the skills necessary to complete a high level research degree in the field of law, particularly where the materials provided by the complainant have been (it is submitted) highly unorganised, confused and incoherent, and focused not on alleged acts of discrimination but wider complaints about policy issues.
2. The respondents say that the application to withdraw the compliant from inquiry was only made after the respondent raised the need for them to have further time to investigate the issues arising from the complainant's alleged involvement working for the University of Queensland.
3. The respondents concede that the merits of the complaint have not been tested at a final hearing, but submit that the Tribunal can be satisfied that the complaint ultimately had little or no merit and the respondents have been disadvantaged by having to go through the litigation process, only to have the complainant withdraw the complaint.
4. Specifically in relation to s 120(2)(a) of the TASCAT Act, the respondents say that there was nothing simple in the way the respondent sought to advance his complaint, and nor did he attempt to conduct his case so as to keep the costs of the parties to a minimum. Specifically, in that regard, the respondents say:
   • The complainant failed to prosecute his complaint for almost two years.
   • The complainant unsuccessfully sought default judgement, but only 22 months after the matter was referred for inquiry, and then only where the respondents had filed an application for summary dismissal.
   • The complainant unsuccessfully sought the substitution of a Tribunal Member from being involved in the proceedings.
   • The complainant unsuccessfully sought to appear at the ultimate hearing remotely.
   • The complainant demanded "daily updates" on the respondents' "legal strategy", in addition to other unreasonable requests that had no bearing on the proceedings.
5. In respect of the complainant's request that there be no order for costs made against him on the basis of his "current financial circumstances", the respondents say that there is no evidence as to the complainant's financial circumstances and it is not relevant to the costs application.
6. Finally, the respondents say that even if this was a case where the respondents were not almost certain to succeed in resisting the complaint, it can be accurately said that the complainant had "effectively surrendered" to the respondents (citing Deputy Commissioner of Taxation v Widdup (No. 3) [2024] FCA 80 (Widdup): discussed further below) after a prolonged and unnecessarily complex complaint and inquiry.

1. The operation of s 120 of the TASCAT Act was discussed by Deputy President Grueber in Hindle v Elliott (No. 2) [2024] TASCAT 114 (Hindle) at [6]:

Section 120(1) establishes a general rule that each party to a complaint should pay their own costs. However, s 120(2) empowers the Tribunal to make a costs order if the Tribunal considers that it is appropriate to do so. The sub-section sets out matters which the Tribunal is to take into account in considering whether it is appropriate to make a costs order.

Section 120(2) requires, rather than permits, the Tribunal to take into account the listed matters... Section 120(2) requires a finding that it is appropriate to make an order for costs. Where the presumptive position is that each party bear their own costs, the onus to establish that an order should be made is on the party seeking an order in its favour... in the absence of some positive legislative indication a decision maker is not required to make particular findings in relation to making an order for costs, which does not involve the determination of an objective fact, but involves a question of judgment and degree.

Section 120(2) requires that the listed matters be taken into account. The duty to "take matters into account" is similar to the statutory duty to "have regard to" or to "consider" or "to take into consideration". The content of these statutory duties have been expressed in various but similar ways... as requiring an "active intellectual process" directed at the matter required to be considered; as requiring the decision maker to take the matters "into account and to give weight to them as a fundamental element in the making of the determination"; and... to consider them as being the "focal point of the decision making process".

1. Deputy President Grueber also noted at [15] (citation omitted):

In an appropriate case, an order for costs may be made even if there is no hearing on the merits and the moving party does not wish to proceed, but the Tribunal cannot try a hypothetical appeal... The Anti-Discrimination Act contains certain specific provisions in respect to costs, including s 68 which provides that the Commissioner may grant an application to withdraw a complaint to Equal Opportunity Tasmania and in doing so is to refer any application for costs to the Tribunal. The Act therefore contemplates the possibility of the making of an order for costs following withdrawal of a complaint, even at the investigation stage before referral for inquiry.

2. The respondents referred to Widdup. In that case the Federal Court set out the relevant principles relating to costs where there has been no hearing on the merits at [13] - [18] as follows (citations omitted):

The exercise of the discretion in relation to costs is usually relatively straightforward when there has been a hearing on the merits and the outcome of the proceedings is clear. In such cases, costs ordinarily follow the event...Where, however, there was no hearing on the merits because the moving party no longer wanted to pursue the action, usually because of some supervening event, the situation is not so clear. The general principles that guide the exercise of the court's discretion in relation to costs in those circumstances have been considered in a number of cases... The general principles established by those cases may be summarised as follows. > > First, where there has been no hearing on the merits of an action, but the moving party no longer wants to proceed with the action, the Court cannot try a hypothetical action between the parties so as to resolve the question of costs. > > Second, in such a case, the Court can nevertheless, in an appropriate case, make an order as to costs. > > Third, an example of a case where the Court can make a costs order, despite the absence of any hearing on the merits, is where one of the parties had acted unreasonably in pursuing or defending the proceeding until the litigation was settled or its further prosecution became futile. > > Fourth, another example of a case where a costs order may be appropriate in those circumstances is where it is possible for the Court to conclude, on the face of the record, that one party had been successful and the other party unsuccessful, or that one party was almost certain to have succeeded if the matter had gone to trial. > > Fifth... it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs... In the former type of case, the exercise of the Court's discretion would usually justify the award of costs to the successful party.

1. The first matters to be taken into account under s 120(2) of the TASCAT Act are the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keep costs to parties in proceedings to a minimum in so far as is just and appropriate.
2. The main objectives of the Tribunal are set out at s 10 of the TASCAT Act. The relevant main objectives in this case, which are set out in s 10(1) of the TASCAT Act are:

...... > > (c) to ensure that applications, referrals, reviews and appeals are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of alternative dispute resolution processes, or compulsory conferences, wherever appropriate; and > > (d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and > > .......

3. This matter has been before the Tribunal since November 2021. After the Tribunal received the Referral Report and accompanying documentation from the Anti-Discrimination Commissioner, the Tribunal attempted to commence the usual pre-inquiry process to have the matter ready for hearing.
4. At that time, the complainant said he was unable to effectively engage in the proceedings because of his mental health condition.
5. A number of directions hearings were convened, seeking clarifying medical confirmation about the complainant's capacity to participate in the proceedings.
6. Ultimately in September 2022 the complainant provided certification that he had no capacity to engage with his legal representatives for the purposes of readying his complaint for conciliation and hearing in relation to the provision of witness statements, documentation intended to be relied upon and details of orders sought until 27 April 2023. The complainant was also certified to have no capacity to engage in conciliation nor an arbitrated hearing for the same period.
7. Further directions hearing were scheduled for the purposes of maintaining contact with the complainant and obtaining updates in relation to his condition and capacity to engage in the proceedings. One such directions hearing was unable to proceed because the complainant's legal representative appeared, but advised the tribunal that she was no longer instructed to act for the complainant. The hearing was adjourned to early 2023.
8. In January 2023 the complainant, in the reconvened directions hearing, advised that he was confident he would be in a position that he could deal with the proceedings by late April 2023 and that he would arrange to have legal representation at that time.
9. At the next directions hearing, which took place on 6 June 2023, directions were made setting a timetable for the complainant to file and serve all the documentation he intended to rely upon in support of his referral, including witness statements, and any indication of the orders he was seeking in the event that his complaint was upheld at inquiry. The complainant was required to comply with the directions by 31 October 2023.
10. Ultimately, the complainant did not fully comply with the directions until 9 April 2023, which was another 23 weeks after the original time for compliance.
11. On a number of occasions between 31 October 2022 and 9 April 2023 the complainant indicated that he was withholding some of his evidence with an intention to provide it at a later time.
12. On 31 October 2023 where, by email, the complainant advised:

I'm only providing evidence and statements related specifically to the racial discrimination allegations at this time. > > I still retain many significant pieces of evidence pertinent to the most crucial charge of victimisation which I choose to withhold for the time being.

13. It also became apparent that the complainant had not filed complete copies of documents in response to the directions made by the Tribunal, but only extracts of parts of those documents.
14. On 28 November 2023, the complainant submitted his witness statement. In part, the statement included:

There are numerous additional pieces of evidence that can further support my case... Due to the respondents' unscrupulous and unethical behaviour, I am hesitant to disclose these specifics at this juncture, out of concern for potential further retaliation. However, should it become necessary or pertinent, I am prepared to provide this information in the future.

15. In a further directions hearing on 16 January 2024 I explained to the complainant that he needed to file complete copies of documents (rather than extracts taken from them) and he also needed to ensure that all of the documents intended to be relied upon as part of his case were disclosed to the respondents prior to the hearing. I also explained to the complainant that he would not be able to refer to additional documents at the hearing or after the hearing if they had not already been filed and served. Amongst other directions made at the conclusion of the directions hearing, time was extended for the complainant to file and serve complete copies of all documents intended to be relied upon was extended to 29 February 2024.
16. On 29 February 2024 the complainant filed full copies of all documents he had previously indicated he would be relying upon but also advised that an additional set of documents was being prepared and would be provided by mid-March or the end of March. He sought an additional extension of time, and was given until 28 March 2024, with the consent of the respondents.
17. On 24 March 2024 the complainant filed an additional witness statement and further evidence. He also advised:

I would like to inform you that there are other pieces of evidence and submissions that I intend to present to further support by case. However, these will be provided at a later stage, following the respondents' reply to all previously lodged allegations. This approach will allow me to tailor my subsequent submissions in response to the arguments and evidence put forward by the respondents.

The complainant also requested relatively brief extensions to comply with the direction that had been made on 16 January 2024 for him to file and serve evidence intended to be relied upon in support of orders that he was seeking for financial loss, including loss of wages and medical expenses.

1. The complainant sought a determination from the Tribunal that he be permitted to attend the final hearing of his complaint remotely, and not be required to attend the Tribunal in person for the hearing.
2. Evidence was received from the complainant and submissions from both the complainant and the respondents in relation to the request that he be permitted to attend the hearing of his complaint other than in person.
3. Ultimately on 24 March 2025 I determined that the complainant would be required to attend the hearing in relation to his complaint in person.
4. The Tribunal advised the complainant and the respondents that a directions hearing would be listed approximately three weeks after to discuss the listing of the complaint for hearing. The complainant asked for some additional time as he said he would now need to seek legal representation.
5. When the parties were sent a notice of the directions hearing being relisted in mid-May 2025 the complainant indicated he would attend the final hearing in person but requested to join the directions hearing remotely. The Tribunal received a notice of appearance filed by the complainant's solicitor, but the complainant elected to participate in the directions hearing himself, without representation.
6. On the morning of the directions hearing the respondents requested an adjournment for a period of no less than four weeks on the basis that they said they were seeking disclosure of records from the University of Queensland, on the understanding that the complainant had been enrolled with the University of Queensland to complete further education and had been and continued to publish academic articles. The respondents noted that the information was directly relevant to the complainant's allegations regarding the impact of the termination of PhD candidature to his financial and career prospects. The complainant resisted the requested adjournment and the directions hearing continued as scheduled.
7. On 14 May 2025, further directions were made, including that the complainant file and serve an updated indexed list of documents intended to be relied upon in the hearing, and that the respondents file documents and witness statements that they intended to rely upon within 12 weeks.
8. Later that evening the complainant sought to formally withdraw his complaint from inquiry before the Tribunal. He expressed that the decision was made due to personal time constraints and limited capacity to proceed with the matter. He said that since the Tribunal had declined to permit him to attend the hearing of his complaint remotely, and due to his current financial hardship, he had no practical means to continue with the case.
9. I approved the withdrawal of the complaint from inquiry in accordance with s 98A of the AD Act.
10. The respondents' submissions on costs described this matter as having 'proceeded through a tortured pre-hearing directions process'. That is not an inaccurate description. Apart from the matters that I have set out above, the pre-hearing process also involved an application by the respondents for dismissal of the proceedings[1] which did not ultimately proceed, an application by the complainant for a Deputy President to recuse herself from further involvement in the matter, which was dismissed (see Nan Xia v University of Tasmania & Ors [2023] TASCAT 220) and an application by the complainant for summary judgment, which also did no proceed.
11. I have concluded that the complainant has conducted these proceedings in a way which has served to significantly increase the costs associated with the proceedings to the point that the withdrawal from inquiry was approved. The respondents' costs to date will have been extended well beyond those which would have naturally been associated with the pre-hearing directions processes involving the disclosure by a complainant of the evidence intended to be relied upon in support of a complaint that was before the Tribunal for inquiry.

1. The second matter to be taken into account pursuant to s 120(2) of the TASCAT Act is the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit.
2. The Tribunal may not undertake a hypothetical hearing of a complaint, but may have regard to the materials forming the Tribunal record to consider the respective strengths of the parties: see Widdup above.
3. At the point that the complainant sought to withdraw his complaint from inquiry, the respondents have not put forward their own evidentiary material, or witness statements in relation to the Tribunal proceedings. However, the referral report that was provided to the Tribunal included some materials from the respondents (or at least some of them) those were materials provided in respect of the original complaint before the Anti-Discrimination Commissioner.
4. A general survey of the complainant's evidence discloses that much of his case relies upon imputing actions and motivations to the various respondents that are contrary to those proffered as part of the original response provided to the Anti-Discrimination Commissioner on behalf of the respondents. I anticipate the respondents would have likely filed additional material and witness statements if the complaint had progressed further, and at this stage it is not possible to draw any firm conclusions about the overall merits of the complaint.

1. The third matter to be taken into account pursuant to s 120(2)(c) is any provision made by the Tribunal rules or the regulations under a relevant Act.
2. Rule 18 of the Tasmanian Civil and Administrative Tribunal Rules 2021 makes provision for costs but is not relevant to the present consideration. There are no regulations under the AD Act.

1. The final matter to be taken into account, under s 120(2)(d) is any other matter considered relevant by the Tribunal.
2. A general discretion as to costs must not be exercised on a ground unconnected with the proceedings. Ordinarily, circumstances personal to the parties, including their financial circumstances, are not relevant to an exercise of a general costs discretion: See State of Tasmania v Anti-Discrimination Tribunal [2008] TASSC 23 at [17] - [25].
3. As Deputy President Grueber noted in Hindle, in the context of s 120(2)(d), a "complainant's application to withdraw is a relevant matter, as is the dismissal of the complaint without it proceeding to a hearing on the merits".
4. On the face of the complainant's application to withdraw his complaint from inquiry, his reasons for withdrawing were financial and personal circumstances, including personal health and time constraints, meant that he could no longer participate in the proceedings, or ultimately participate in the hearing of his complaint in person.
5. The complainant's expressed reasons are somewhat at odds with his communications with the Tribunal following the decision that he would be required to attend the hearing of his complaint in person, specifically:
   • The day that the Tribunal's decision in that regard was forwarded to the parties, the complainant asked for some time to arrange for legal representation.
   • After the parties were provided with notice of a directions hearing to be held on 14 May 2025, the complainant advised the Tribunal that it was his intention to attend the final hearing in person, but sought clarification about what would be dealt with in the directions hearing (so as to decide whether he would attend the directions hearing remotely, or whether his legal representative would attend)
   • The Tribunal registry gave him some indication about what was likely to be dealt with in the directions hearing, and the complainant later advised that he would appear at the directions hearing remotely, but that his intention was for his lawyers to represent him moving forward.
   • A notice of appearance was filed by a firm of lawyers in Hobart on behalf of the complainant on 12 May 2025. The complainant's lawyers asked the Tribunal to provide certain documents from the tribunal file.
   • When the respondents sought an adjournment of the directions hearing, on the basis that were seeking documents from the University of Queensland that were relevant to the complainant's allegations regarding the impact of the termination of the complainant's PhD candidature to his financial and career prospects, the complainant did not agree to the directions hearing being adjourned, and said "there is no reason to delay the proceedings further, and I would prefer to use today's session to clarify any outstanding issues".
   • In the course of the directions hearing on 14 May 2025, the complainant said that he wanted the parties to move to conciliation. I advised the complainant that I would not make a direction that the matter be listed for conciliation until both parties were in a position to put their case forward and have the opportunity to assess the evidence and contentions of the opposing side.
6. After the determination that the complainant was not to attend the final hearing of his complaint remotely, the complainant expressed his intention to proceed with his complaint to hearing, obtained legal representation, stated his intention to attend the hearing in person, and indicated a desire to have his complaint conciliated. Despite the complainant's stated reasons for withdrawing his complaint from inquiry, in the light of the timing of that application, it is reasonable to infer that the application to withdraw the complaint from inquiry is more likely to have been made because of the respondents' stated intention to obtain evidence that was potentially detrimental to the complainant's case and credit.
7. On that basis, the complainant's application for withdrawal of his complaint from inquiry could be seen as a 'surrender' to the respondents, as contemplated in Widdup. It is also relevant to an assessment of the merits of the complaint, for the purposes of s 120(2)(b) of the TASCAT Act.
8. Additionally, the complainant has, from an early stage of the proceedings (June 2022) indicated his awareness that the Tribunal has the power to award costs in relation to proceedings under the AD Act. At the time he sought to withdraw his complaint from inquiry, he did so with a request that no costs order be made against him, although he has not subsequently engaged with the respondents' costs application.

1. Having regard to all the matters that I have set out above, and particularly in relation to my consideration factors relevant to s 120(2)(a) and (d) of the TASCAT Act, I determine that it is appropriate to make an order for costs in favour of the respondents.
2. Historically, costs orders in proceedings under the AD Act have been made at the rate of 80% of the applicable Supreme Court scale of costs: See Maree Summers v State of Tasmania (Department of Education) [2020] TASADT 5 at [56] - [59]. The respondents have sought an order for costs in accordance with that scale, and I do not consider there is any reason to depart from that usual practice.

1. I order that the complainant pay the respondents' costs of and incidental to the inquiry, such costs to be calculated on a party/party basis at 80% of the scale of fees presently allowed to practitioners and counsel under the Supreme Court Rules 2000, Part 1 of Schedule 1. In the absence of agreement as to costs, the costs are to be taxed by a registrar of the Tribunal.

[1] On a number of grounds, but in part because it appeared the complainant had failed to comply with the directions issued in June 2023. As it turned out, the complainant had attempted to send materials to the Tribunal within time, but they had not been received by the Tribunal - possibly because of an issue relating to incompatible software.