Anti-Discrimination Decisions

[2008] TASADT 06

Catchwords:

Costs - Complaint dismissed after Inquiry - Circumstances which justify an order for costs - Effect of "Calderbank" letter of offer - Anti-Discrimination Act 1998 (Tas) ss95, 99A

Representation:

Reasons For Decision

1. The Respondents in each of the above matters have applied for an order that the Complainant pay their costs of each set of proceedings.

2. On 10 January 2008 I dismissed Complaint ADT 51/2003 against both Respondents. I dismissed the complaint against each Respondent in Complaint 100-0502006 on 31 March 2008. Each complaint was dismissed after an Inquiry, pursuant to the provisions of section 99(1), Anti-Discrimination Act 1998 ("the Act").

3. Section 95 of the Act provides that subject to section 99A, each party to an Inquiry is to pay his or her own costs. Section 99A provides that the Tribunal may make an order as to costs in relation to any Inquiry if it considers the circumstances justify the order.

4. In the State of Tasmania -v- Anti-Discrimination Tribunal [2008] TASSC 23, Justice Evans considered the effect of these provisions. It seems to me that the following principles can be drawn from His Honour’s Reasons for Judgment:

(a) Section 95 expresses a general rule that parties are to pay their own costs.

(b) However that rule "must yield whatever the Tribunal finds in a particular case that there are circumstances justifying the making of an order for costs".

(c) The power to award costs under these provisions can be distinguished from an unconstrained grant of power. The outcome of the proceedings will not have the same primacy that is accorded when exercising an unconstrained discretion as to costs.

(d) The power must be exercised judicially, and not arbitrarily, capriciously or so as to frustrate the legislative intent.

(e) The costs discretion must not be exercised on a ground unconnected with the proceeding. For example, the financial circumstances of a party, or an imbalance between the financial resources of the parties, will ordinarily not be relevant to the exercise of the discretion with respect to costs.

5. Mr Foulds, who appeared for all Respondents, accepted the accuracy of the above summary of principle. The circumstances which he says justify the making of an order for costs in each case are as follows:

(a) That the Respondents were completely successful in each case; and

(b) That on 20 October 2006 he forwarded to the Complainant on behalf of each Respondent and in respect of each case, a "Calder Bank" letter, in which an offer "without prejudice save as to costs" of $15,000.00 was made in full and final settlement of both complaints and a "workers compensation claim".

6. He does not suggest that there is any other circumstance which would justify the making of an order for costs.

7. Ms. Rattray who appeared for the Complainant submitted that the Tribunal ought not make a costs order in favour of the Respondents in either matter. She submitted that, despite being unsuccessful in the proceedings, that the Complainant had a reasonable basis to pursue her complaint, she submitted further that there were strong public policy reasons for not ordering costs in a case where a complaint is dismissed because it is unsubstantiated. She made a number of submissions in relation to Calder Bank letter, including a submission that the offer contained in the letter was unreasonable.

8. In respect of each case, I do not consider that the circumstances justify the making of an order for costs. I have come to this conclusion for the following reasons:

(a) Whilst the Complainant was unsuccessful in respect of each complaint, it cannot be said that there was no reasonable basis for the making of the complaint, or that the complaints were trivial, vexatious or lacking in substance. In each case, it is apparent that the complaints arose out of real concerns that the Complainant had with respect to her treatment within the work place. In ADT 51/2003 there were clearly problems within the Complainant’s work place which led to her feelings that she was being subjected to unfair treatment. Indeed I found (see para 69) that she had been subjected to "blatant racism". The fact that after extensive Inquiry, I determined that this treatment did not amount to a breach of the Act, does not lessen the impact upon the Complainant.

In ADT 100-0502006, the Complainant’s grievance arose out of a set of circumstances which included inaction by both Respondents. Indeed, it was clear that the Complainant’s case had not received the attention which it deserved. However, my conclusion was that that inaction did not arise for a reason which would have constituted the conduct as a breach of the Act.

In those circumstances, the success of the Respondents does not reflect a complete lack of substance in the complaints of the Complainant. The mere fact that the Respondents were ultimately successful, particularly in the circumstances described by me, does not, in my view, justify an order for costs.

(b) I am not satisfied that the "Calderbank" letter provides a circumstance which would justify the making of an order for costs against the Complainant. I accept that I should have regard to the "Calderbank" letter in determining this application for costs. However, the relevant consideration is not simply whether the Complainant by failing to accept the offer, has ended up in a worse position at the conclusion of the case, but rather whether she acted unreasonably in rejecting the offer, and if she did, whether that unreasonable conduct justifies the making of an order for costs. (see Pollard -v- Baulderstone Hornibrook Engineering Pty Ltd (No.2) (2007) NSWSC 486).

A careful examination of the letter tendered by Mr Foulds reveals that the offer related not only to both complaints, but also to a "workers compensation claim". Both Counsel attempted to give me information as to the nature of that claim, from the bar table, but at the end of the day, I have no evidence as to the merits of that claim at the time that the offer was made. I have no way of assessing the reasonableness of the offer having regard to the fact that it was intended to compromise not only these claims but also the workers compensation claim. In those circumstances, it seems to me that it is impossible for me to say that the Complainant acted unreasonably in rejecting the offer.

Furthermore, I note that the offer remained open for 10 days only. I have no material before me which would enable me to assess whether that was an adequate time for the Complainant to properly understand and assess the offer, particularly given what she was being asked to compromise.

For these reasons I am not prepared to conclude that the Complainant acted unreasonably in rejecting that offer. Accordingly it seems to me that the "Calderbank" letter carries little weight in my consideration of these applications for costs. It does not justify such an order.

9. I agree with Mr Foulds that there are no other circumstances which would justify an order for costs. I reiterate that I am not satisfied that the circumstances to which he has referred justify such an order. Accordingly, I decline to make an order for costs. It follows, having regard to section 95, that each party to the Inquiry is to pay his or her own costs.