ADEREMI and TAFE INTERNATIONAL WA - [2024] WASAT 141 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   ADEREMI and TAFE INTERNATIONAL WA [2024] WASAT 141 (S)
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   8 JULY 2025
FILE NO/S:   EOA 2 of 2024
BETWEEN:   ADEDIPUPO TONY ADEREMI
Applicant
AND
TAFE INTERNATIONAL WA
Respondent

Catchwords:

Equal Opportunity - Costs application - Proceeding dismissed on the basis it was frivolous, vexatious, misconceived or lacking in substance - Costs principles to be applied in equal opportunity proceedings - Respondent has claimed costs of approximately $23,600 - Applicant ordered to pay part of the Respondent's costs in the sum of $6,000

Legislation:

Australian Human Rights Commission Act 1986 (Cth)
Equal Opportunity Act 1984 (WA), s 36, s 46, s 89(1), s 90(2), s 127, s 127(b)(i)
Legal Profession (State Administrative Tribunal) Determination 2024 (WA)
Migration Act 1958 (Cth)
Racial Discrimination Act 1975 (Cth), s 6A
State Administrative Tribunal Act 2004 (WA), s 9, s 47(2), s 60(2), s 87, s 87(1), s 87(2)

Result:

Applicant ordered to pay part of Respondent's costs in the sum of $6,000

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Aderemi and TAFE International WA [2024] WASAT 141
Banno v Commonwealth of Australia (1993) 45 FCR 32
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317
Menegola and Health and Disability Services Complaints Office [2018] WASAT 23 (S)
Millrock Resources Pty Ltd and Questa Pty Ltd [2012] WASAT 229
Smith and Palace Nominees Pty Ltd T/As Joe Crisafio Kia [2016] WASAT 12
Soelberg (formerly Van Droffelaar) and Commissioner of Police [2008] WASAT 305 (S)
Summerville and Department of Education and Training [2006] WASAT 368 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Zangari v St John Ambulance Service [2010] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL:

Overview

On 12 December 2024, I dismissed a proceeding in which Mr Aderemi was the applicant and TAFE International WA (TAFE[1]) was the respondent, on the basis that it was frivolous, vexatious, misconceived or lacking in substance.[2]
[1] Variously referred to as TAFE or the Respondent. TAFE was represented by the State Solicitor's Office (SSO).
[2] Aderemi and TAFE International WA [2024] WASAT 141 (Dismissal Decision).
The proceeding concerned a complaint made by Mr Aderemi against TAFE of discrimination on the ground of race in the provision of services, contrary to s 36 and s 46 of the Equal Opportunity Act 1984 (WA) (EO Act).
The complaint was referred to this Tribunal by the Commissioner for Equal Opportunity (Commissioner) under s 90(2) of the EO Act at the request of Mr Aderemi after the Commissioner found the complaint to be misconceived and lacking in substance.
The basis for my dismissal decision was that:
(a)no service was provided, or requested to be provided, by TAFE to Mr Aderemi, and therefore his complaint did not fit within the ambit of s 46 of the EO Act which provides that race discrimination in the provision of services is unlawful.
(b)Mr Aderemi was not an 'aggrieved person', as required by s 36 of the EO Act, because even if a service was provided, it was not provided to him. Mr Aderemi had made an enquiry with TAFE about another person's applications to study at TAFE (referred to as Mr E). He therefore did not have standing to bring a complaint.
With its dismissal application, the Respondent also sought an order for the cost of the proceeding fixed in the sum of $23,613.30 pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[3]
[3] 'Respondent's submissions in support of the Respondent's application to dismiss proceeding pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) and for costs' dated 20 August 2024.
Mr Aderemi seeks an order that each party pay their own costs.[4]
[4] 'Applicant's submissions in support of the Applicant's application for costs' dated 21 March 2025.
The issue before me is whether I should exercise discretion to order Mr Aderemi to pay the Respondent's costs of the proceeding, and if so, to what extent.
For the reasons set out below, I have decided that Mr Aderemi should pay the Respondent's costs fixed in the sum of $6,000, which represents approximately one quarter of the Respondent's costs, within 60 days of the date of this decision or such other timeframe that is agreed to in writing by the parties.[5]
[5] 'Respondent's Bill of Costs' dated 5 August 2024, which is attachment 'AJG-10' to the 'Affidavit of Alexander James Gibson affirmed 20 August 2024 in support of Respondent's application for orders striking out the Applicant's application for costs of the proceeding'.

Legal framework

Legislation

The starting presumption is that, unless otherwise specified by the SAT Act or the enabling act, each party bears their own costs. Subsection 87(1) of the SAT Act provides:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
The Tribunal does, however, have a discretion to award costs, which is again subject to the enabling act specifying otherwise. Subsection 87(2) of the SAT Act provides:
Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
The enabling act in this proceeding is the EO Act which contains no provision as to costs.
For reasons I explain below, s 9 of the SAT Act is also relevant to consider when a costs application has been made. Section 9 of the SAT Act provides, in part:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are —
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; …

General principles concerning s 87 costs

The principles from case law concerning the discretion of the Tribunal to make a costs order under s 87(2) of the SAT Act can be summarised as follows:
•Success alone is not a sufficient basis for the Tribunal to exercise the discretion to award costs.[6]
[6] Millrock Resources Pty Ltd and Questa Pty Ltd [2012] WASAT 229 at [19].
•If an applicant has lost an anti-discrimination claim it will not, alone, be a sufficient basis for an adverse costs order against the applicant.[7]
[7] Smith and Palace Nominees Pty Ltd T/As Joe Crisafio Kia [2016] WASAT 12 (Smith), at [251].
•Starting with the presumption is that no order for costs should be made, when deciding whether to exercise the discretion to award costs, it is relevant to consider the particular circumstances of the case including the nature of the jurisdiction and any rules that have been made by the Tribunal about costs.[8]
[8] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, (Questdale) per Martin CJ at [9].
•An order for costs is not to punish the person against whom an order is made, but to compensate or reimburse the person in whose favour it is made. The question is whether it is fair and reasonable that a party should be reimbursed the costs it has incurred.[9]
[9] Questdale at [51] per Murphy JA with whom Corboy J agreed.
•The onus is on the party seeking a costs order in its favour.[10]
[10] Questdale at [51] per Murphy JA with whom Corboy J agreed.
•A person should have the opportunity to seek a remedy from a Court or a Tribunal without being deterred by the prospect of having to pay costs if they have an arguable case which ultimately proves to be unpersuasive.[11]
•The Tribunal has previously expressed the view that it should not generally make an award for costs in proceedings bought under the EO Act unless the conduct of a party justifies exercise of the discretion to make a costs order. The circumstances in which the Tribunal may consider exercising discretion to make a costs order against a party in an EO matter include if a party has brought or pursued the proceeding vexatiously, for an improper purpose, or in some other way that constitutes an abuse of process. For example, if a party:
•maintains a proceeding when there was no case to answer.
•pursues a claim which is clearly untenable or which no reasonable person would have believed could be successful.
•did not have a bona fide belief in the genuineness of their claim.
•pursues a claim that was so lacking in any real foundation that the complainant never should have brought it.[12]
•Whether the conduct of the party impaired the attainment of the Tribunal's objectives in s 9 of the SAT Act and the nature of the dispute for determination will be relevant to consider in deciding whether to exercise discretion to make a costs order.[13] For example, whether a party has behaved unreasonably or inappropriately so as to unnecessarily prolonging the proceeding which results in additional costs to the other party, will be relevant to the Tribunal's consideration as to whether to exercise discretion should be exercised to make a costs order.
•The fact that a party believes that he or she acted appropriately and had an arguable case may be insufficient to prevent a costs order being made.[14]
[11] Questdale, at [56], per Murphy JA citing Banno v Commonwealth of Australia (1993) 45 FCR 32, at 51 per Wilcox J.
[12] Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317 (Alcoa) at [47]. See also: Chew and Director General of the Department of Education and Training [2006] WASAT 248, at [18]; Zangari v St John Ambulance Service [2010] WASAT 6, at [203]; Chew v Director-General of the Department of Education and Training at [85]; Soelberg (formerly Van Droffelaar) and Commissioner of Police [2008] WASAT 305 (S) (Soelberg) at [33]; Smith [2016] WASAT 12 at [251]; Menegola and Health and Disability Services Complaints Office [2018] WASAT 23 (S), per Deputy President Judge Sharp at [18]; Summerville and Department of Education and Training [2006] WASAT 368 (S) (Summerville), at [37] - [39] and [43]. Summerville was a decision of Barker J, a former President of this Tribunal.
[13] Questdale, at [54] and [58], per Murphy J.
[14] Summerville at [37] - [39] and [43].
These principles illustrate that matters under the EO Act do not fall into a special category of cases whereby costs orders will never be made.
Further to these principles, I make two additional observations.
Firstly, the Tribunal has made costs orders against unrepresented parties in proceedings under the EO Act.[15] Thus, whilst the benefit of the doubt may sometimes be afforded to a self-represented party, a costs order may still be made against them if the principles I have set out above apply.
[15] See for example, Summerville and Smith.
My second observation is relevant to a consideration of the nature of the equal opportunity jurisdiction, which I also referred to in the principles set out above.
Some complaints under the EO Act that come to this Tribunal have already been dismissed by the Commissioner and have been referred to the Tribunal following a request by the complainant (applicant) under s 90(2) of the EO Act.
Those complaints have been dismissed by the Commissioner under s 89(1) of the EO Act on the basis that they are frivolous, vexatious, misconceived, lacking in substance or relate to an act that is not lawful under the EO Act.
With respect to those types of applications, a former President of this Tribunal, Barker J, made the following relevant observation in Summerville:[16]
In my view, parties who require their complaints to be transferred to the Tribunal by the Commissioner for Equal Opportunity in circumstances where the Commissioner has already found those allegations to be without substance, should not be entitled to maintain proceedings that do not have any reasonable chance of success without being at risk of a costs order being made against them.
[16] Summerville at [52].
In my view, Barker J's observations are apposite to consider in this matter. I consider them further below.

Decision on the documents

This costs application was determined on the documents, pursuant to s 60(2) of the SAT Act.
I have considered the following documents and submissions from the parties:
•The Respondent's costs submissions at paragraphs 58 - 70 of its 'Respondent's submissions in support of the Respondent's application to dismiss proceeding pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) and for costs' dated 20 August 2024 (Respondent's August 2024 Costs Submissions).
•'Affidavit of Alexander James Gibson affirmed 20 August 2024 in support of Respondent's application for orders striking out the applicant's application and for costs of the proceeding' affirmed on 20 August 2024 with Annexures AJG-1 to AJG-11 (First Gibson Affidavit).
•'Applicant's submissions in support of the Applicant's response to dismiss the Respondent's application and the Respondent's orders for costs of the proceeding' dated 17 September 2024 (Applicant's September 2024 Submissions).
•'Affidavit of Adedipupo Tony Aderemi affirmed 17 September 2024 in support of the Applicant's response to the Respondent's application and to strike out the Respondent's orders for costs of the proceeding' dated 17 September 2024.
•'Applicant's submissions in support of the Applicant's application for costs' dated 21 March 2025 with 'Annexure A - without prejudice and open correspondence throughout proceedings' (March 2025 Submissions).
•'Respondent's submissions in reply filed pursuant to orders made 14 February 2025' dated 8 April 2025 (Respondent's April 2025 Submissions in Reply). In those submissions the Respondent sought leave to file what I have described in the next subparagraph as the Second Gibson Affidavit to reply to matters raised in the Applicant's March 2025 Submissions; specifically, evidence about the Applicant's work history in response to the Applicant's assertion that he was a student with severe medical conditions who had been unable to work since 2021 (Work History Evidence); and additional correspondence between the parties subsequent to the First Gibson Affidavit which contain correspondence between the parties with respect to costs.
•'Affidavit of Alexander James Gibson affirmed 8 April 2025 in support of Respondent's application for costs of the proceeding' affirmed on 8 April 2025 with Annexures AJG-1 to AJG-16 (Second Gibson Affidavit).
Having regard to the main objectives of the Tribunal in s 9 of the SAT Act, including the need to make decisions fairly and according to the substantial merits of the case, I am satisfied that leave should be granted to the Respondent to rely on the Second Gibson Affidavit. Accordingly, I grant that leave, but for reasons I explain, some of that evidence is of limited relevance and I have not given it any weight.
The correspondence with respect to costs is relevant to consider and is something both parties have had notice of. That evidence is contained in Annexures AJG-12 to AJG-25.
However, in my view the Work History Evidence (which is contained in Annexure AJG-26 to AJG-27 to the Second Gibson Affidavit) is of limited relevance because an applicant's personal circumstances, whilst possibly relevant (depending on the circumstances of the case) to the amount of costs to be paid and the timeframe for payment, do not prevent a costs order being made in the first place. In any event, Mr Aderemi has not been able to respond to that evidence which may be prejudicial to him if it were considered.[17]
[17] The Work History Evidence includes a letter of support dated 22 March 2023 which states Mr Aderemi had been working for the author since 2017 (Second Gibson Affidavit, AJG-27).

Parties' submissions

TAFE's submissions on costs

The Respondent has submitted that Mr Aderemi is aware that his complaint lacks merit. It further submitted that that Mr Aderemi's conduct has been unreasonable and inappropriate and that he has pursued this proceeding for the purpose of obtaining a payment well in excess of the Tribunal's jurisdiction.
In the Respondent's August 2024 Costs Submissions,[18] submitted prior to the handing down of the Dismissal Decision, the Respondent stated that it relied upon the following matters in support of its costs application:
[18] Respondent's August 2024 Costs Submissions, para 63. Footnotes omitted by Tribunal.
(a)there is no evidence that the Respondent has any substantive interest in Mr [E]'s Applications;
(b)despite the Respondent and the Tribunal alerting the Applicant to the statutory cap on compensation, the Applicant has pressed for a payment 3.75 times that jurisdictional limit;
(c)the Equal Opportunity Commission alerted the Applicant to his lack of standing to complain of discrimination in education, so the Applicant devised an untenable argument that the Respondent was personally providing him with a service in admitting others to tertiary education;
(d)the Respondent has notified the Applicant by correspondence, the Respondent's SIFC, in directions hearings and by this Application, that the Applicant's complaint does not fall within the EO Act;
(e)the Tribunal has alerted the Applicant to the possibility of costs orders, and the Respondent has given the Applicant fair warning of its intention to seek costs orders;
(f)the Respondent has urged the Applicant in writing to seek legal advice on 2 occasions;
(g)the Applicant has informed both the Tribunal and the Respondent that he intends to continue ventilating his grievances through different proceedings until the Respondent pays him a substantial sum of money, which can only be interpreted as the Applicant making plain that it is immaterial to him whether he has reasonable prospects of success under the EO Act;
(h)the Applicant threatened to commence competing Federal Court of Australia proceedings if the Respondent did not settle, including a threat made in the first directions hearing in this Tribunal and in writing on the eve of the mediation in this Tribunal; and
(i)the Applicant did in fact commence competing proceedings, by which he increased his $150,000 compensation claim to $1,500,000 and included the Respondent's staff member as a party to that action.
Further, the Respondent also submitted that '[t]he Applicant has made plain that his intent is to keep commencing proceedings until he is paid'[19] and that he is a 'serial litigant and is named as the Applicant in two other Federal Court proceedings'.[20]
[19] Respondent's August 2024 Costs Submissions, paras 64 and 65.
[20] On 20 July 2024, Mr Aderemi filed an originating application in the Federal Court of Australia under the Australian Human Rights Commission Act 1986 (Cth) against TAFE, and a manager employed by TAFE. A Notice of Filing and Hearing shows that the application was accepted for filing in the Federal Court on 31 July 2024 (First Gibson Affidavit, AJG-9). That application relies on the same factual allegations that were before this Tribunal and seeks a remedy of $1.5 million. Mr Aderemi has filed two other proceedings in the Federal Court against different respondents in 2021 and 2024 (First Gibson Affidavit, AJG-11). In 2024 and 2025 he requested the Commissioner refer two other complaints against different respondents to this Tribunal for inquiry pursuant to s 90(2) of the EO Act.

The Respondent further acknowledged that Mr Aderemi was 'understandably frustrated' by Mr E's applications being refused by TAFE but 'that frustration is not enough to justify using the Tribunal's processes primarily to pressure a party to settle for an amount outside of the jurisdiction of the Tribunal'.[21]

Mr Aderemi's submissions

[21] Respondent's August 2024 Costs Submissions, para 67.

In the Applicant's September 2024 Submissions, also filed prior to the Tribunal handing down the dismissal decision, Mr Aderemi submitted that the Respondent's representative acted in such a way as to result in unnecessary costs and had wasted the Tribunal's time by not 'entertaining negotiations'.[22]
[22] Applicant's September 2024 Submissions, para 1.
Mr Aderemi claims to have 'incurred significant costs, damages and mental health issues due to the conduct of the Respondent'.[23]
[23] Applicant's September 2024 Submissions, para 42.
He stated that he had made several attempts to resolve the matter by informing the Respondent's legal representatives of his intention to mediate so that he would not have to file applications against the respondent for contravening the Australian Consumer Law, Racial Discrimination Act (RD Act) and the Australian Public Service Act. He further took issue with the Respondent not offering him any apology or settlement of the matter, despite his claim being a genuine one.[24]
[24] Applicant's September 2024 Submissions, paras 31 - 24.
Those submissions reiterate that Mr Aderemi was seeking '$150,000 in compensation for loss and damage under s 127 of the EO Act to settle all the Applicant's losses due to the Respondent's contraventions of various statutes during their interaction with the Applicant in public'.[25]
[25] Applicant's September 2024 Submissions, para 20, page 11.
He later restated that he had informed the Respondent of the reason why he sought the $150,000 which he described as 'cumulative damages' for the Respondent's contravention of the EO Act, the RD Act, the Australian Consumer Law and the Australian Public Service Act and took issue with the fact that the Respondent continued to ignore his concerns.[26]
[26] Applicant's September 2024 Submissions, para 37(b).
After the handing down of the Dismissal Decision, Mr Aderemi filed the March 2025 Submissions seeking that the parties pay their own costs.
He correctly submitted that for a costs order to be made, it was insufficient for the application to be struck out, and that the burden of proof rested with the Respondent to demonstrate the conduct of the Applicant justified the imposition of a costs order.[27]
[27] Applicant's March 2024 Submissions, para 2.
In those submissions, Mr Aderemi stated that he had 'genuinely sought redress regarding statements made by the Respondent'; and that if costs were ordered against him, it would deter African Australians who have gone through similar experiences from bringing complaints due to the fear of costs.
He further stated that he was 'a student with severe medical conditions which has made him unable to work since 2021', that he was receiving Austudy and that if costs were ordered against him, it would aggravate his health situation.[28]

The Respondent's submissions in reply

[28] Applicant's March 2024 Submissions, paras 3 - 5.

In the Respondent's April 2025 Submissions in Reply, the Respondent reiterated that Mr Aderemi's complaint was not genuine, that he had tried to 'shoehorn' his grievance about Mr E's application to study at TAFE into the jurisdiction of the EO Act, and that when that attempt appeared to be failing he threatened to, and then did, commence proceedings in the Federal Court to press for a monetary settlement in this proceeding.[29]
[29] Respondent's April 2025 Submissions in Reply, paras 12 and paras 14 - 15.
The Respondent also submitted that Mr Aderemi had been alerted to the fatal lack of merit of his application by the Commissioner on 18 December 2023, and in an email, letter, and written and oral submissions from the Respondent. Further, the Respondent submitted that Mr Aderemi is a law student who pressed unmeritorious arguments in pursuit of a sizeable cash payment in circumstances where he was informed by the Commissioner and the Respondent's legal representatives, on several occasions, that those arguments would fail.[30]
[30] See email from the SSO dated 5 March 2023 (First Gibson Affidavit, AJG-1), oral submissions of the Respondent at the directions hearing (First Gibson Affidavit, AJG-3), letter from the SSO dated 8 April 2024 (First Gibson Affidavit, AJG-4), the Respondent's August 2024 Costs Submissions from para 18 onwards, and oral submissions made by the Respondent's legal representative at the dismissal hearing on 30 September 2024.
The Respondent further submitted that it is fair and reasonable for it to recover costs because the Respondent made several offers to have the matter dismissed with no order as to costs, had urged Mr Aderemi to seek legal advice in circumstances where Mr Aderemi was aware that the Respondent was incurring costs, and used that expenditure to try to obtain a cash settlement. The Respondent submitted that it was appropriate for it to engage legal representation due to the nature of the complaints and the complexity of the unmeritorious arguments developed by Mr Aderemi.[31]

Should the Tribunal exercise discretion to order Mr Aderemi to pay costs?

[31] Respondent's April 2025 Submissions in Reply, paras 22 - 23.

It has not been necessary for me to address every one of the parties' submissions because primarily, the proceeding in this Tribunal was unreasonable from its commencement. That is the primary basis on which I have determined whether to make a costs order. I have also discussed other conduct by Mr Aderemi which would have added to the costs of the Respondent.
Mr Aderemi's complaint was initially dismissed by the Commissioner under s 89(1) of the EO Act after the Commissioner found the complaint to be misconceived and lacking in substance. Mr Aderemi asked the Commissioner to refer the complaint to this Tribunal under s 90(1) of the EO Act. Accordingly, the Commissioner referred the complaint to this Tribunal together with a report into the Commissioner's investigation, under s 90(2) of the EO Act. This referral to the Tribunal is therefore in the same category of referral that Barker J discussed in Summerville. That is, pursuing and maintaining a proceeding in those circumstances placed Mr Aderemi at risk of a costs order being made against him.
In a letter to Mr Aderemi dated 18 December 2023, the Commissioner clearly articulated why he had dismissed Mr Aderemi's complaint as being misconceived and lacking in substance.[32] The Commissioner explained:
To establish a complaint of race discrimination you must show that you are an aggrieved person and have been treated less favourably than other persons in the same or similar circumstances, and that the less favourable treatment is due to your race.
The allegation that TAFE rejected your relative's enrolment application on racial grounds is 'misconceived' as you are not the Applicant, or a registered Education Agent.
The second allegation, is that when you were seeking information about your relative's application, you were offended when a TAFE employee allegedly deemed African applicants as 'high risk'. TAFE's response stated this comment was made in the context of the Commonwealth Department of Home Affair's visa related assessments which deem offshore Nigerian student applicants aged 30-34 as 'high risk' and requiring a higher level of evidentiary documentation. This allegation lacks substance as the remark cannot be regarded as 'less favourable treatment' as it is a factual statement.
[32] Exhibit 1, page 50. This was an exhibit in the dismissal hearing.
It should therefore have come as no surprise that I also found that Mr Aderemi lacked standing because he was not an 'aggrieved person'. Rather, he was making an enquiry on behalf of a third person, Mr E, who was not a party to the proceeding.
In the dismissal decision I also found that TAFE did not provide a 'service' to Mr Aderemi. Whilst I appreciate that the case law as to what constitutes a service is somewhat complicated, that no service was provided to Mr Aderemi and that he was essentially a stranger to the enquiry is relatively straight forward. It should have been apparent to Mr Aderemi that he had no standing, particularly because he had been put on notice about this by the Commissioner.
Further, Mr Aderemi was put on notice by the Respondent from an early stage in the proceeding that his claim lacked merit.[33] The Respondent also offered to provide him with copies of case law referred to in the Respondent's submissions if he had any difficulty obtaining copies, and also recommended that Mr Aderemi seek legal advice on more than one occasion.[34]
[33] See, for example an email from the SSO to Mr Aderemi dated 5 March 2024 (First Gibson Affidavit, AJG1), letter from the SSO to Mr Aderemi dated 8 April 2024 which sets out a detailed explanation of the flaws in Mr Aderemi's application (First Gibson Affidavit, AJG-4), letter from the SSO to Mr Aderemi dated 25 September 2024 (Second Gibson Affidavit, AJG-15).
[34] Letter from the SSO to Mr Aderemi dated 8 April 2024 at para 26(d) (First Gibson Affidavit, AJG-4), email from the SSO to Mr Aderemi dated 25 September 2024 (Second Gibson Affidavit, AJG-14).
The Respondent also forewarned Mr Aderemi of its intention to seek costs including on 8 May 2024 and 25 September 2024.[35] Despite these warnings, Mr Aderemi was not deterred by the prospect of a costs order. The Respondent's legal representatives sent Mr Aderemi an email dated 8 May 2024, which provided an estimate of the Respondent's costs, advised Mr Aderemi that the Respondent intended to seek costs and urged Mr Aderemi to seek legal advice. In an email response Mr Aderemi stated: 'You do not have to worry about the legal cost. Africans in the diaspora will pay the bills even if the matter gets to the Supreme Court'.[36]
[35] Second Gibson Affidavit, AJG-12 and AJG-15.
[36] Second Gibson Affidavit, AJG-13.
Due to Mr Aderemi proceeding with a complaint that was misconceived or lacking in substance from the outset, the Respondent was required to proof witnesses and draft witness statements, put on evidence and make submissions in the form of a statement of facts, issues and contentions. The Respondent was further required to respond to complicated submissions that were lacking in merit to defend a claim that was, at its inception, misconceived and lacking in substance.[37]
[37] For example, Mr Aderemi submitted that he was being provided with a 'service' because he was trying to form a business relationship with TAFE which would enable him to later become a migration agent to facilitate African students gaining a vocational education in Australia. This required the Respondent to make additional submissions to address why that intended relationship was not a service, and about the qualifications and registration requirements for migration agents under the Migration Act 1958 (Cth) (Dismissal Decision, paras 65 - 67, 113).
In addition, throughout the course of the proceeding, despite being alerted to the statutory cap on compensation in the EO Act, namely that the Tribunal can award up to $40,000 in damages,[38] Mr Aderemi persisted in seeking an amount of $150,000, being 3.75 times the statutory maximum.
[38] EO Act, s 127(b)(i).
Specifically, at a directions hearing on 19 March 2024, Mr Aderemi stated that he was seeking $150,000 in damages. The then President of this Tribunal, Pritchard J, told Mr Aderemi that the amount of compensation that the Tribunal could award was limited, and advised him to look at s 127 of the EO Act. In a letter to Mr Aderemi dated 8 April 2014, the Respondent's legal representatives referred to the remarks made by Pritchard J at the directions hearing. The Respondent further stated that s 127 of the EO Act provides that the maximum amount of compensation that can be claimed under the EO Act is $40,000.[39] The letter also referenced the fact that the Respondent's legal representatives had repeatedly recommended that Mr Aderemi seek legal advice.[40]
[39] First Gibson Affidavit, AJG-4, para 17(b) of the letter.
[40] First Gibson Affidavit, AJG-4, para 26(d) of the letter.
I infer from the transcript of the directions hearing and the letter from the Respondent's legal representatives which Mr Aderemi responded to, that he knew there was a statutory limit of $40,000. I also note that Mr Aderemi is a second year Juris Doctor law student. The Respondent did not dispute that he is. Despite this, in his email response dated 10 April 2024, Mr Aderemi asked for an apology letter and $150,000 in damages.[41]
[41] First Gibson Affidavit, AJG-5.
The Respondent made many attempts to settle the proceeding. It made offers to Mr Aderemi on several occasions for the proceeding to be dismissed or withdrawn with no order as to costs, but those offers were rejected. Mr Aderemi reduced the amount of compensation he was seeking from TAFE to $50,000 in emails that he sent to the Respondent's legal representatives on 25 and 26 September 2024.[42] Those offers were made several days before the dismissal application was heard on 30 September 2024. Although the amount offered was reduced, it was nevertheless $10,000 more than the maximum amount that the Tribunal could award under s 127 of the EO Act.
[42] Second Gibson Affidavit, AJG-14 and AJG-19.
Shortly before the dismissal hearing, Mr Aderemi rejected an offer to have both the Tribunal proceeding and a Federal Court proceeding arising from the same alleged facts dismissed with no order as to costs.[43] In an email to the Respondent's legal representatives, Mr Aderemi stated, 'I am willing to withdraw all of the litigations against your client if they issue an apology letter and assure me that the collaboration I seek with their organisation can be discussed and achieved'.[44] I understand that offer to be a reference to Mr Aderemi seeking to form a business relationship with TAFE which he thought would help him become a migration agent.[45] However, as I discussed in the Dismissal Reasons, TAFE could not lawfully form such a relationship with Mr Aderemi as a migration agent unless he was properly qualified and registered.[46] Consequently, that was also an unreasonable offer that was not capable of acceptance.
[43] Second Gibson Affidavit, AJG-22.
[44] Second Gibson Affidavit, AJG-23.
[45] See Dismissal Decision, para 101. I noted that if Mr Aderemi brought the proceeding as retribution for the loss of a potential business relationship that it would constitute an 'improper purpose', but I did not ultimately make a finding on that issue.
[46] See Dismissal Decision, paras 102 - 105.
Overall, I am satisfied, and I find, that Mr Aderemi's conduct in pursuing a claim that was frivolous, vexatious, misconceived or lacking in substance, when he had adequate warning from the Commissioner and the Respondent that he lacked standing and that his claim otherwise lacked merit, was unreasonable. As a result, the Respondent was required to proof witnesses, to put on evidence and submissions, and to otherwise defend a claim that was untenable. Further, in making settlement demands that the Respondent could not lawfully agree to, Mr Aderemi acted unreasonably and contributed to the cost of the proceeding, in circumstances where it should not have proceeded in the first place.

Should Mr Aderemi pay all or part of TAFE's costs?

Having regard to the principles concerning costs set out above, and the objectives of the Tribunal in s 9 of the SAT Act, I am satisfied that it is fair, reasonable and in the interests of the administration of justice, that I should exercise discretion to make a costs order. I am satisfied that the Respondent has fulfilled its onus in this regard.
For the reasons I have outlined above, Mr Aderemi has acted unreasonably in pursuing this proceeding. A costs order in the circumstances of this case would therefore not, in my view, discourage other complainants from bringing genuine complaints in the future. I have considered that Mr Aderemi is self-represented, but that as a law student he is better placed than most self-represented persons to realise that he was acting unreasonably in pursuing the proceeding against the Respondent.
Mr Aderemi submitted that he is a law student with health issues, that he is not working and that any costs order would be detrimental to him. As I have mentioned, Mr Aderemi is a second year Juris Doctor law student. With respect to Mr Aderemi's submission that he has health conditions and has been unable to work since 2021, as I outlined above, I have not given weight to the Work History Evidence. There is no other objective evidence about Mr Aderemi's health or financial situation.
As I mentioned above, a person's personal circumstances do not have a bearing on whether a costs order should be made at first instance. Although personal circumstances may be relevant in determining factors such as the amount of the costs order that is fair and reasonable to compensate the successful party in the circumstances, and the time in which any costs should be paid, it is a person's unreasonable conduct which places them at risk of having a costs order made against them. Giving Mr Aderemi the benefit of the doubt, in considering the amount of costs and the time in which to pay them, I have proceeded on the basis that he is a student with limited means.
The Respondent has claimed almost all costs from the commencement of the proceeding in this Tribunal. Although it should have been apparent to Mr Aderemi at an early stage that he was pursuing an untenable claim because he was not an aggrieved person, I have not ordered Mr Aderemi to pay all the Respondent's costs from the commencement of the proceeding.
I have also had regard to the nature and extent of the costs claimed by the Respondent, as set out in their bill of costs.[47] The hourly rates charged for junior and senior practitioners are less than the maximum allowable hourly rates set in the current costs determination, the Legal Profession (State Administrative Tribunal) Determination 2024 which came into operation on 1 July 2024 and the previous determination. The costs claimed include for examining the brief and taking initial instructions, preparing bundles of documents and witness statements, and the preparation of a statement of facts issues and contentions. They also include preparing for and attending two directions hearings, a mediation and the dismissal application. A majority of the costs are reasonable and represent the work that had to be properly completed by the Respondent to defend the complaint.
[47] First Gibson Affidavit, AJG-10.
Overall, having also considered the nature of Mr Aderemi's conduct, the fact that he is unrepresented, and on the basis that he is a student and likely to have limited means, I am satisfied, and I find, that it is fair and reasonable that Mr Aderemi be required to pay part of the Respondent's costs fixed in the amount of $6,000 within 60 days, or in such other timeframe agreed to in writing by the parties.

Orders

The Tribunal orders:
1.Leave is granted to the Respondent to rely on the Second Gibson Affidavit.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Applicant must pay costs fixed in the amount of $6,000 to the Respondent within 60 days of these orders, or such other timeframe that is agreed to in writing by the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
8 JULY 2025