Batzialas v Tony Davies Motors Pty Ltd
[2002] FMCA 243
•16 October 2002 7 November 2002 (costs)
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BATZIALAS v TONY DAVIES MOTORS PTY LTD | [2002] FMCA 243 |
| HUMAN RIGHTS – Claim for discrimination under Racial Discrimination Act 1975 – whether termination of employment due to or caused by discrimination – application dismissed – costs. COSTS – Applicant unsuccessful – whether no order for costs due to respondent’s conduct – effect of Offer of Compromise – usual principles apply to human rights claims – applicant to pay respondent’s costs from date of Offer of Compromise. PRACTICE AND PROCEDURE – Offer of Compromise – application of Order 23 of Federal Court Rules pursuant to Rule 1.05 and Schedule 3 of the Federal Magistrates Court Rules 2001 – discretion. |
Hagan v Trustees at Toowoomba Sportsground Trusts (2002) FCA 1615
(10 November 2000
Dealey v. Australia Leisure & Hospitality Group Limited (1998) HREOCA 10 (31 March 1998)
Briginshaw v. Briginshaw (1938) 60 CLR 336
March v. Stanmare (E & MF) Pty Ltd (1991) 171 CLR 506
Haines v Bendall (1991) 172 CLR 60
Racial Discrimination Act 1975, ss.15, 18
Workplace Relations Act 1996, s.170CK(2)
| Applicant: | NICHOLAS BATZIALAS |
| Respondent: | TONY DAVIES PTY LTD (trading as Watson Holden) |
| File No: | MZ258 of 2001 |
| Delivered on: | 16 October 2002 7 November 2002 (costs) |
| Delivered at: | Melbourne |
| Hearing Dates: | 19 and 20 July 2001 7 November 2002 (costs) |
| Judgment of: | McInnis FM |
REPRESENTATION
16 October 2002
| Counsel for the Applicant: | Mr G Watkins |
| Solicitors for the Applicant: | Vadarlis & Associates |
| Counsel for the Respondent: | Mr P Wheelahan |
| Solicitors for the Respondent: | Maddock Lonie & Chisholm |
7 November 2002
| Counsel for the Applicant: | Mr E Vadarlis |
| Solicitors for the Applicant: | Vadarlis & Associates |
| Counsel for the Respondent: | Ms G Beecher |
| Solicitors for the Respondent: | Maddock Lonie & Chisholm |
ORDERS
The application be dismissed.
That the applicant pay the respondent's costs to be taxed pursuant to order 62 of the Federal Court Rules in accordance with schedule 1 of the Federal Magistrates Court Rules on and from 11 am on 11 April 2001.
I certify that it was appropriate in the circumstances for the respondent to engage an advocate.
FEDERAL MAGISTRATES |
MZ258 of 2001
| NICHOLAS BATZIALAS |
Applicant
And
| TONY DAVIES MOTORS PTY LTD (trading as Watson Holden) |
Respondent
REASONS FOR JUDGMENT
The Application by Nicholas Batzialas (the Applicant) alleges discrimination in employment on the ground of race, in breach of the Racial Discrimination Act 1975 (the RDA).
The claim is against the Applicant's former employer, Tony Davies Motors Pty Ltd (trading as Watson Holden) (the Respondent).
The Applicant was employed as a Fleet Manager by the Respondent from 6 February 1997 to 6 November 1997. The Applicant claimed that during the course of his employment he was paid a retainer and commission on sale and that the commission varied according to the type of sales that were made. Initially when he was employed, he was responsible to a Mr McPhee of the Respondent although received instructions from other staff members, including Mr Kalogirou.
The claim by the Applicant is that difficulties arose during the course of the employment when he was informed by a senior sales person, that the proprietor required the Applicant to change his name from "Nicholas Batzialas" to "Nicholas Bates". The Applicant, who is of Greek background, decided to change his name despite his reservations as he had formed the view that he would do as he was told and he believed then that the Respondent had decided it was in the best interests of the business to "anglicize" the name "Batzialas".
However difficulties arose with a new car manager who was employed by the Respondent and certain allegations were then made by the Applicant that this new manager, Mr Marshall, had denigrated and abused the Applicant on a regular basis. The denigration and abuse included reference to the Applicant's Greek background including an alleged comment by Mr Marshall to the Applicant that he was "a Greek monkey."
Relevant legislation
The Applicant, in the Application before this Court, relied upon a breach of ss 15 and 18 of the RDA, which provide as follows:
"15. Employment
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a)to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b)to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c)to dismiss a second person from his or her employment
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
(2) …
(3) …
(4) …
(5) …
18. Acts done for 2 or more reasons
Where:
(a)an act is done for 2 or more reasons; and
(b)one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done for that reason."
The evidence
The Applicant adopted two Affidavits sworn by him on
6 February 2001 and 28 May 2001, and gave evidence on oath. He also called in support of his Application, Mr Andrew Gonis, who gave evidence and adopted an Affidavit sworn by him on 18 July 2001. In relation to loss and damage, the Applicant's sister, Miss Paula Batzialas, was called in response to a subpoena by the Respondent.
The Respondent relied upon the evidence of Mr Anthony Davies, Mr Terrence Ivan, an accountant, and Mr Geoffrey Marshall, who adopted an Affidavit sworn by him on 17 May 2001, and Mr Chris Kalogirou, who also adopted an Affidavit sworn by him on 26 April 2001.
The Applicant stated that he had commenced employment with the Respondent on 6 February 1997, and the employment was terminated on 6 November 1997. Before commencing employment with the Respondent, the Applicant gave evidence that he had previously been employed by another car dealer. Tony Davies of the Respondent, engaged the Applicant and upon commencement of employment the Applicant was under the supervision of a sales manager, Mr McPhee.
In his evidence, the Applicant stated that after a three month probation period he was approached by Mr McPhee and the Respondent in relation to the printing of business cards. Up until that time he had been using a blank business card. Mr McPhee left the employment of the Respondent before making arrangements in relation to the business card. An approach was made by the Applicant to Mr Gonis, of the Respondent, and the Applicant claims that Mr Gonis told the Applicant, "We've got to do something about your name." The Applicant responded, "Why is that?" He was told that Tony (Davies) did not like the Applicant going around to fleet companies in the area "with a long Greek name." According to the Applicant, when he told Mr Gonis that he was not comfortable with the prospect of changing the name, he was told something like, "Nick, you won't last if you don't do what Tony says". He was further told, "It doesn't really matter, we'll just shorten it to Bates, or something like that." The Applicant confirmed that in fact, he did change his name to "Bates" and had business cards printed accordingly. The Court received as Exhibit "A3", a copy of the business card of the Applicant, which had the name "Nicholas Bates." The card referred to the Applicant as being "Fleet Manager."
According to the Applicant he had performed well as an employee of the Respondent, and apart from the difficulty with the business card issue did not have any problems in the initial stages of his employment.
It was alleged that problems occurred after the appointment of a new car manager, Mr Geoff Marshall. It was claimed that Mr Marshall adopted an aggressive approach to the Applicant, and would follow the Applicant around the dealership "harrassing" the Applicant. It is claimed that Mr Marshall used degrading names when addressing the Applicant, and would make the Applicant "feel foolish." When asked how he was addressed by Mr Marshall, the Applicant said, "There were varied words from ‘idiot’, ‘moron’, ‘cretin’, ‘ethnic’, there was the odd ‘wog’ comment.
Mr Marshall apparently commenced with the Respondent in about July or August of 1997, and accordingly he was there for approximately four months prior to the Applicant's employment being terminated in November of that year.
Towards the end of his employment with the Respondent, the Applicant referred to an incident where there was a discussion between the Applicant and a colleague, arising out of an article in a newspaper. The Applicant claimed that during the course of that discussion, there was some issue about the Darwinian theory of evolution, and the Applicant's religious beliefs. A discussion took place with Mr David Elliott, a salesman, and during the course of that discussion, as the Applicant was leaving the lunch room where the discussion occurred, Geoff Marshall allegedly said something to the Applicant in the presence of Mr Kalogirou that, "You should believe that you were evolved from the monkey because you are a monkey, and all the Greeks come from the monkeys."
According to the Applicant the comment made by Mr Marshall “cut very deep” as Marshall knew of the Applicant's belief in God and that he was an Orthodox Greek. Later the same day, the Applicant said he was approached by a Mr Cassidy of the Respondent and asked to deal with a client who had requested quotations. Whilst in the process of negotiating with that client, the Applicant claims Mr Marshall "stormed in … ripped the quotes off my desk, started abusing me, calling me all sorts of names." The Applicant said that he was called a "fucking moron, fucking idiot." The Applicant claimed that he said, "Geoff, what's going on? What's the problem?" In response to that, it was alleged that Mr Marshall leaped out of his chair and "chested" the Applicant. The Applicant claimed that after that, he said to Mr Marshall, "Geoff, is this the way you want to handle things. Are we a bunch of school kids that we have to go out the back and sort it out. I thought this was a professional business." Mr Marshall, according to the Applicant said, "You're sacked. Pick up your stuff and get out."
After the incident the Applicant claimed that he had complained to Mr Kalogirou, and was told by Mr Kalogirou that he would be "standing by my manager." It was alleged the Applicant was further told by Mr Kalogirou, in response to a suggestion that the dismissal was illegal, "Nick, if you take any legal action, you'll never work in the industry again." The Applicant picked up his belongings and left. He was subsequently paid, he had accrued holiday and wages and other benefits upon termination.
As a consequence of the dismissal, the Applicant claimed he lost confidence, was angry, and at that time had a "dim view of the car industry." He believed he was matching the leading salesmen for the month, or exceeding sales, prior to his dismissal, and upon complaining about the management style of Mr Marshall, he had been told by Mr Tony Davies that he was happy with the Applicant's figures and that he was doing okay.
After his dismissal the Applicant claimed that in the first month he was in such an emotional state that he did not have confidence to get another job in the car industry or elsewhere, and in fact commenced a part-time driving instructor's course, and this course commenced about two or three months after the termination of the Applicant's employment with the Respondent. The Applicant claimed that on occasions he would help out with the family business, which was a driving instructing school, which had been taken over by his sister, Paula Batzialas in 1997, due to the Applicant's father's ill health. For a short time, the Applicant's mother conducted the business before it was transferred to the Applicant's sister. The Applicant claimed that he was not paid for working in the family business, and the only other employment he sought was with another Holden dealership in Doncaster. Although he had been told he would be employed, he explained that he was unable to take up the position, and in fact remained unemployed until July 1999. During the period November 1997 to July 1999, the Applicant was supported by his wife, father-in-law and family.
At the time of the hearing, the Applicant was employed by another Holden dealership, and had been so gainfully employed from July 1999. In that employment he resumed using his Greek name of "Nick Batzialas" and produced his current business card with that name. As a new car salesman with his current employer he has been successful and in the year 2000 finished in the top 10 in the industry with an income in his first financial year of approximately $68,000, and in the second financial year, $78,000.
Under cross-examination, the Applicant denied that he was "sloppy" with his work.
It was put to the Applicant that he had been ‘forum shopping’ and that he had been inconsistent in the details given in an Application to the Human Rights and Equal Opportunity Commission (HREOC) "compared with details given in a claim to the Industrial Relations Commission” (the IRC).
The Applicant was referred to the claim made to the IRC, and in particular, was cross-examined in relation to the nature of that claim. It was specifically put to the Applicant that in the claim to the IRC, he made no mention of the word "race." The Applicant agreed that he did not mention that issue in the unfair dismissal claim, and conceded that he had made an error in referring to the commencement date of employment with the Respondent as being 6 December 1996, when it should have been 6 February 1997.
The Applicant agreed that his claim for unfair dismissal was filed on 17 April 1998 with the IRC. He conceded that prior to the filing of that Application, he had entered into negotiation in relation to a franchise business for Honda. The Applicant was referred to parts of his answers to interrogatories delivered for examination by the Respondent in these proceedings, and in particular, interrogatory (2) where the Applicant states, "Approximately two to three months after my employment with Watson Holden was terminated, I attempted to negotiate a business arrangement with Nick Meskos… The purpose of the discussion was to open up a motor vehicle accessory shop for motor cycle parts in Hoppers Crossing. The negotiations proceeded for approximately six months, but were unsuccessful because Honda Australia, at the end, did not grant us a franchise."
The Applicant, in his Application to the IRC, had marked "Reinstatement" as one of the items of relief that he was seeking from that Application.
Whilst questioned in relation to the allegation that he had been forced to change his name, the Applicant agreed that the General Manager of the Respondent, Mr Kalogirou, had not been required to change his name. The Applicant indicated that Mr Kalogirou was not however, dealing with fleet clientele of the Respondent. The Applicant asserted that it was uncommon for members of the Greek community to voluntarily shorten their names.
The Applicant was specifically asked whether the other witnesses, Mr Kalogirou, Mr Marshall and Mr Davies, always knew him as "Bates." He answered, "No, they don't because when I put my Application in for a job, it was "Nick Batzialas…"
The Applicant's employment application form was tendered as an exhibit and the name of the Applicant on that form is "Nicholas Batzialas." It is dated 4 February 1997. The Applicant otherwise denied that he had not performed his job properly, and particularly denied the suggestion that the fleet account was taken away because he was too busy to provide quotes.
Although the Applicant agreed he did not get along with Mr Marshall, and at one point during cross-examination, admitted that after he had been sacked by Mr Marshall, he called him a "weak bastard."
During the course of the proceedings before the IRC, the Applicant agreed he was represented by a solicitor, and that the solicitor was acting upon his instructions.
The Applicant did agree that when he first met Mr Marshall,
Mr Marshall had said something like, "You know, if people don't do what I tell them, I've been known to throw books at their head." The Applicant agreed that Mr Marshall was like that with everybody.
The Applicant was specifically asked a question in relation to his earnings, after the termination of his employment. He agreed that his claim was that for a period of 88 weeks he did not have any source of income or employment, and had to live off his wife's earnings.
When asked about the number of hours he worked for Astoria Cars prior to his employment with the Respondent, the Applicant indicated that that employment would be something like five to ten hours a week.
He was then taken to Exhibit R3 which was his application for employment with the Respondent, and in particular referred to the previous employment set out on that form. From 1993 to 1996, the form suggests that he was paid $70 per week as a manager in the family business of Astoria Driving School. In the same form, where the Applicant was asked, "Are you presently engaged in any part time employment?" He had answered, "Yes." He referred to the employer being "Astoria" and he had inserted sixty hours per week as the average hours that he was employed. The Applicant denied avoiding tax, and confirmed that he was paid $70 per week, and that he had crossed out another zero, which would have meant that his wage for Astoria would have been $700 per week.
The Applicant agreed that he had referred to his employment at Astoria Cars in his application for employment, and that submissions were made to the IRC, that he had obtained employment in late May.
The Applicant disputed that he had started work in the family business in November or December and reiterated that he had started around May despite evidence from his sister to the contrary.
During cross-examination, a letter dated 24 May 2000 from the Applicant's solicitors to HEROC was tendered, and in part that letter referred to the Applicant being "out of work for some seven months." It should also be noted that the same letter set out details of the current complaint.
The Applicant agreed that during discussion on the day that his service was terminated, he was not racially abused by Mr Marshall.
In relation to the issue of damages, the Applicant conceded that after his termination of employment with the respondent, he had checked the newspapers for work "approximately once a month." The Applicant claimed that it took him a year and a half to two years to get back his confidence in order to pursue full-time employment.
The Applicant specifically denied failing to provide quotes for a customer of the respondent or failure to ‘finish off’ particular transactions.
During the course of re-examination, the Applicant indicated that he was not happy during the period immediately after the termination of his employment and said the following:
“I've grown up around migrant workers who have been kicked around in factories, growing up in schools where you've grown up with the wog thing and the whole thing and then to have worked hard at a new place and be kicked in the guts again was, I guess, the boiling point for me, and I wasn't the same person for at least a year and a half.”
The Applicant agreed he completed a driving instructor's course around March/April 1998 although he did not make an application for employment as a driving instructor after completing that course. He claimed that he did not feel capable to instruct young adults in a vehicle in the state that he was in at the time. He further agreed that apart from the pursuit of the joint venture in relation to Honda he did not seek employment in any other area other than car sales in the eighteen month period after the termination of his employment.
Andrew Gonis
Mr Gonis had been employed by the Respondent for approximately nine-and-a-half years. He had been there for approximately six or seven years prior to the Applicant commencing employment. He indicated the Applicant was as good as anyone else in the performance of his work.
Mr Gonis described Mr Marshall's style of management as "a bit weird back in the 30's." He claimed that Mr Marshall had "no respect for many people. He bullied people like they used to do in the early days." He thought that Mr Marshall had hated the Applicant from day one and that they did not get on with each other. The Applicant, according to Mr Gonis, was treated differently from other employees.
Mr Gonis adopted an affidavit which had been sworn by him on
18 July 2001. In that affidavit he referred to Mr Davies of the Respondent indicating that he wanted the Applicant to shorten his name on his business card from Batzialas to Bates as he did not want Batzialas to embarrass the dealership and had said something like it was fine to use that name in Thomastown/Lalor where it was predominantly European but it was not tasteful in the Eltham and Greensborough areas as a fleet salesman. Mr Gonis, in the same affidavit, referred to his impression of Mr Davies of the Respondent being "adept at intimidating employees enough to force them to resign." It was in that context he said that he approached the Applicant and advised him of the comments of Mr Davies and suggested he should change his name to Bates to keep his job. In the affidavit he corroborated the Applicant's reaction to that request as being one of reluctance although ultimate compliance with the request to change his name.
During the course of his evidence Mr Gonis said that he had received a complaint about Mr Marshall referring to the Applicant as a "Greek monkey."
Mr Gonis agreed that he had left the employment of the Respondent and referred to his claim for unlawful dismissal which was apparently settled out of Court.
Respondent's evidence
Anthony Raymond Davies
Mr Davies gave evidence that he is the owner of the Respondent business and has been the ownership of the dealership for a period of over 20 years and involved in the business for 39 years.
He denied any involvement in a name change of the Applicant. In his evidence he further claimed that there would be probably 40 per cent of staff with ethnic background.
During cross-examination Mr Davies accepted that Mr Marshall had a "sort of boot camp mentality" to a degree. He claimed however he was not aware at the time that there were difficulties between Mr Marshall and the Applicant.
Mr Davies was specifically asked about the procedure of the Respondent in warning employees in dealing with inappropriate behaviour. He confirmed that if the employee is not performing appropriately then he would not be sacked for want of performance without a warning. In relation to the Applicant he thought that a warning would have been given to him based upon the procedure to follow. He was unable to say why the Applicant's services were terminated. He then asserted that the Applicant resigned. He did indicate that that piece of paper which referred to the resignation had been handed to him and that he had thrown it in the rubbish bin. Accordingly he was unable to produce the document. During the course of further questions Mr Davies indicated that the note which he had received had been written by the Applicant a couple of months prior to his termination.
Terrence Frederick Ivan
Mr Ivan was called to give evidence on behalf of the Respondent. He is an accountant and was called to give evidence in relation to the 1998 Group Certificate for the Applicant. The certificate was produced which showed that the Applicant ceased to be employed on
6 November 1997 and he was recorded as an employee with the surname "Batzialas." He was unable to recall any details concerning the printing of business cards.
Geoffrey Bruce Marshall
Mr Marshall gave evidence and adopted an affidavit confirming that he had been employed by the Respondent as New Car Manager for a period of twelve months. He indicated he is currently employed as a New Car Manager at another company and has approximately six staff under him of various ethnic backgrounds.
Mr Marshall denied calling the Applicant derogatory names. He specifically denied referring to the Applicant as a "Greek monkey." The altercation between the two of them occurred as a result of a discussion relating to a fleet account, which arose in circumstances where he claimed to have lost faith in the Applicant's ability to deal with that account. He claimed the Applicant had resigned and was not dismissed. In support of that evidence he claimed that he had seen a piece of paper or document shown to the manager on the afternoon of the altercation just before the termination of the Applicant's employment.
Chris Kalogirou
Mr Kalogirou adopted an affidavit which he has sworn and gave evidence that he was the brother-in-law of Mr Gonis. At the time of swearing his affidavit he was general manager of the Respondent and claimed that it was only after the Applicant's employment had concluded with the Respondent that he became aware of any change of name. He claimed that it had never been suggested to him by representatives of the Respondent that he should change his name. He further referred to his brother being employed by the Respondent with the same surname and indicated he had not been instructed to change his name. He asserted the Applicant was not performing well in relation to a particular fleet of cars and the Applicant ultimately resigned in November 1997.
When told by the Applicant that he was going to sue the Respondent and take legal action he claims that he told the Applicant something like "Look, you'd be wary to do anything like that because other dealers find out you sue the dealer and therefore you'll find it very hard to find work."
During cross-examination Mr Kalogirou agreed that the Applicant had complained to him about being treated unfairly by Mr Marshall. At the time however he did not think the Applicant had a case. He cannot remember whether he spoke to Mr Marshall about the complaint or not.
He gave evidence that there had been a written letter of resignation which he had been unable to locate though admitted it should be filed with the Respondent. He agreed that in giving evidence to the IRC he did not mention anything about the written resignation and suggested that he might not have been asked the question. The transcript of that evidence given on 15 July 1998 became an exhibit and it would seem to be common ground that there was no reference to a written resignation from the Applicant. The affidavit evidence of the witness referred to a difficulty with a fleet account although the transcript evidence from the same witness before the IRC, he feels that he had at that stage no knowledge of that particular account which was an account with Castrol.
Applicant's submissions
It was submitted on behalf of the Applicant that he was entitled to rely upon the loss and damage set out in his affidavit sworn 28 May 2001. In that affidavit the Applicant claimed compensation for loss of income and pain and suffering in the total sum of $122,126.36 comprising of $10,000 for pain and suffering and the balance for loss of income. The Applicant claimed that he had been unemployed and suffered loss of income for a period of 88 weeks since the date of his termination of employment with the Respondent.
The submissions made on behalf of the Applicant relied upon
sections 15 and 18 of the RDA. The Applicant sought to emphasise the dismissal from his employment and claimed that it was by reason of his Greek ethnic origin.
As I understood it, it was further submitted by the Applicant that reliance could be placed upon the act of dismissal for the purposes of a breach of the RDA if it can be established pursuant to s.18 of the Act that one of the reasons for the dismissal was the Applicant's ethnic origin whether or not it is the dominant reason or substantial reason for the dismissal.
In a review of the evidence the Applicant referred to the business card issue as being part of the background culminating in the alleged remark about the Applicant being a "Greek monkey." It was submitted that this was a racially based comment and culminated in the termination of the Applicant's employment. The reliance upon the business card issue which predated the commencement of employment of Mr Marshall was said to be a part of the background and evidence of the way in which the Applicant had been treated leading to the position where it was said that the Court should draw an inference that by terminating the Applicant's employment, it could be said to be terminated in breach of the provisions of the Act to which I have referred. The Applicant did not pursue the business card issue as a discreet basis upon which it could be said liability arises under the RDA. Instead, as indicated, it was part of the background.
It should be added that although there was a substantial claim for damages arising from the termination said to be in breach of the RDA it appeared during the course of submissions that the Applicant conceded that probably the realistic period would be from the date of termination up until about May of 1998 during which time the Applicant felt he was unable to be gainfully employed as a consequence of his treatment by the Respondent.
It was made clear during the course of submissions that the major incident giving rise to a breach of the RDA and the damages claimed was the termination which it is said was an act which was either solely based upon the Applicant's Greek background or that in any event that background was one of the reasons for the termination. It was submitted that the Court should accept the Applicant's evidence that he had been performing his duties satisfactorily and that indeed no other reason was given for the termination. It was further noted that there was no warning given to the Applicant in relation to his termination and that the Court should accept that it was a summary dismissal and that the Applicant did not provide a written resignation as suggested by some of the Respondent's witnesses.
During the course of submissions Counsel for the Applicant claimed that there had been an attitude adopted that a manager such as Mr Mashall with his "boot camp mentality" is entitled to tread upon junior employees, entitled to humiliate them and entitled to attack as he sees fit with no question of redress from management. Counsel further submitted, "You ought accept as leading you to the factual findings that throughout his employment there was this threat of racial taunting from management in addition to a serious case of bullying and victimisation and that it is that thread that my client relies upon in bringing the case before this Court and it turns obviously on those factual findings…"
Respondent's submissions
The Respondent relied upon written submissions in addition to the oral submissions made at the conclusion of the hearing.
Essentially the Respondent claims that there has been no conduct which could be established on the appropriate standard of proof which would satisfy the Court there has been a breach of the RDA. The conduct in terminating the employment of the Applicant was conduct which arose from the personality conflict between Mr Marshall and the Applicant and I was invited to conclude did not relate in any way to what might be described as conduct in breach of s.15 of the RDA.
The Respondent did not seek to rely upon the options set out in
s.18E (2) of RDA claiming that it had taken all reasonable steps to prevent Mr Marshall in the present case from ‘doing the act’, namely termination. It was submitted that the act of termination was not in any way motivated by matters relating to the Applicant's ethnic origin. I was invited to conclude that there had been no reference by Mr Marshall to the Applicant being a "Greek monkey."
It was further submitted that the business card matter was unrelated to termination and not relevant in the present case and that I should conclude in any event that that was a voluntary change of name accepted by the Applicant. In general terms the Respondent submitted that the Applicant had pursued other proceedings and that in those other proceedings before the IRC had not referred to the issue of discrimination which is now before this Court. It was submitted in the circumstances that the Court should be reluctant to accept the Applicant as a credible witness. It was submitted that there is diametrically opposed evidence and although it is conceded that the Applicant's employment was terminated and that there had been a heated exchange between the Applicant and Mr Marshall, that there was no evidence of mention during that discussion of the Applicant's Greek background. It was submitted that the Applicant's employment was terminated for other reasons including his poor performance and not in any way related to his Greek origin. It seemed to be accepted by the Respondent there had been a personality conflict and perhaps clashes between the Applicant and Mr Marshall which led to the altercation referred to in the evidence. However, termination and sacking was not related to any issue which could be said to constitute discrimination. Essentially it is submitted that there was no causative link between any race-based allegation and the termination.
In support of the submissions on behalf of the Respondent the absence of any reference to discrimination in the claim made by the Applicant to the IRC was highlighted. The Court was referred to s.170CK(2) of the Workplace Relations Act1996 which provides in sub-s.(F) that "race, colour and other matters may be relied upon in establishing that there has been unfair dismissal and/or that the dismissal was unlawful." The Respondent submitted that it was open to the Applicant to rely upon that part of the Industrial Relations Legislation and the failure to mention it on that earlier occasion is a matter which should be taken into account in assessing the Applicant's credibility in the present application.
During the course of submissions the Respondent dealt with the discreet issues in relation to the business card and the claimed reference to the Applicant as being a "Greek monkey" as well as the failure alleged by the Applicant to obtain a pay increase. However, those matters, as I understand the Applicant's case before the Court, were not the subject of submissions whereby it could be seen the Applicant is entitled to a discreet declaration and/or damages but rather that each of those issues form part of a background of complaints regarding the conduct of the Respondent culminating in the termination which it is said at least to have had one of its reasons the Applicant's Greek background.
It was noted in the submissions that the Applicant's claim before the IRC had been dismissed as the application was out of time. It was only after that dismissal that the Applicant made his claim pursuant to the provisions of the RDA. It was submitted that there was no substance in any claim in relation to a pay increase in any event, and likewise that any claim of discrimination based on the name change should not be relied upon, as I understand it, either by way of background or a discrete event which as indicated is in any event not pursued by the Applicant. The Court was invited to accept the evidence of Mr Kalogirou and Mr Marshall, together with that of Mr Davies, that there was no instruction given to Mr Gonis to persuade the Applicant to change his surname.
In relation to general allegations during the course of evidence of assaults and taunts it was submitted on behalf of the Respondent that there were interpersonal issues between the Applicant and Mr Marshall but that these related to the Applicant's performance and not the Applicant's Greek background. The Court was invited to draw an adverse inference and against the Applicant on the basis of Jones v Dunkel given the failure of the Applicant to call another witness, Mr Elliott, who was alleged to have been present during the time when the "Greek monkey" words were allegedly uttered.
Reference was made to other staff employed by the Respondent who had Greek background and who had not been required to change names and there had not been any suggestion of any discrimination in relation to any of the other members of staff. The Court was invited to draw the conclusion that the Applicant likewise had not been the subject of discrimination.
Reference was made to sections 15 and 18C of the RDA. I was referred to the decision of Federal Court in Hagan v. Trustees at Toowoomba Sportsground Trusts (2000) FCA 1615 (10 November 2000) where the Court held:
“It also seems clear enough from the use of the phrase "if…the act is done because of the race." in s. 18C that there must be a causal relationship between the reason for the doing of the act and the race of the "target" person or group”.
Counsel for the Respondent also referred the Court to other decisions where the issue of racial discrimination had been considered and submitted that the Court needs to be satisfied that there has been evidence upon which the Court could rely to establish that the alleged racial discrimination was a cause which contributed to the conduct which in the present case was the termination of the Applicant's employment. If I were to find that the conduct was simply based upon, or as a result of personality differences, then that would not be sufficient to establish unlawful discrimination. (See Bryl v. Kovacevic v. Nowra & Anor (1999) EOC 93-022 (1999) HREOCA 11 (21 June 1999) and Korczak v. Commonwealth of Australia (Department of Defence) (2000) EOC 93-056.
The Respondents also make reference to s.15 of the RDA and in particular that part which relates to failure to effectively give the Applicant employment on the same terms and conditions as other persons with the same qualification, and in addition referred to the termination. Although dealing with this as a discreet issue, it seemed to be accepted by both parties that the specific altercations formed background to the ultimate and substantive issue of termination. In any event however, it was submitted on behalf of the Respondent specifically that the Court should apply the appropriate standard of proof in an unlawful discrimination case of the present kind namely that adopted by the Human Rights Commission in Dealey v. Australia Leisure & Hospitality Group Limited (1998) HREOCA 10 (31 March 1998) where the Commission cited Briginshaw v. Briginshaw (1938)
60 CLR 336.
To find that the termination occurred by reason of the Applicant's ethnic origin the Respondent submitted that I would be required to consider a practical application of the causation principles set out in March v. Stanmare (E & MF) Pty Ltd (1991) 171 CLR 506 and as indicated earlier to consider the issue of cause and effect.
The Respondent submitted that s.18 does not apply as the Applicant has failed to establish any act was motivated on the basis of his Greek ethnic origin. It should also be noted that the Respondent therefore did not seek to rely upon any defence which may be raised pursuant to 18A(2), or 18E(2) that is that the Respondent took reasonable steps to prevent the employee or agent from committing the unlawful act.
If the Court were to find in favour of the Applicant it was submitted by the Respondent, there would be little or no damages as the Applicant had failed to call medical evidence or indeed, other evidence to demonstrate entitlement to general damages for pain and suffering and had failed to provide sufficient evidence that he had adequately attempted at all to mitigate his loss by seeking alternative employment after termination. It was noted in the evidence that whilst the Applicant had commenced work with the family driving school business and had engaged in at least an attempt at a business venture, there was no evidence that the Applicant had even made any application in writing for work or that he had sought work outside the car industry. In the circumstances the Court should be reluctant to accept the period of loss of income as claimed and applying the principles of Haines v. Bendall (1991) 172 CLR 60, the Court should be reluctant to provide any further compensation beyond the sum of $450 per week from the date of termination until the date when the Applicant commenced employment with the family driving school which was a period up to approximately May or June 1998. The rate it was submitted that should be applied in circumstances is the rate of pay of $450 per week plus a standard commission. I was invited to accept that this would be an average earning of $700 per week and it was to be noted that the Applicant does not dispute, he was paid his full statutory entitlements upon termination. The main thrust of the Respondent's submissions in relation to any loss of income however, is that the Applicant chose to work for the family driving school and therefore, was gainfully employed from the time of his termination and had he wished to do so he could have obtained alternative employment. Reference was made to the failure of the Applicant to disclose relevant bank accounts and otherwise provide corroboration in relation to his inability to obtain alternative employment. I was specifically asked to rely upon the Applicant's sister's evidence that the Applicant had commenced working in the family driving school early in November or December of 1997.
There was little evidence it was submitted by way of medical report or other material to suggest that there had been any significant impact upon the Applicant of these events, and the Court should in the circumstances not award any other damages in relation to this application in the event that it finds in favour of the Applicant.
Findings and reasons
In my view the evidence establishes that the Applicant was required within a short time of commencing employment to change his name on his business card. Whilst that is not relied upon as a discreet fact giving rise to liability, it does at least provide some insight into the way in which the Applicant was treated as a consequence of his ethnic origin. I accept the Applicant's evidence that he did not voluntarily decide to change his name from ‘Batzialas’ to ‘Bates’ although I also accept that this happened early during the period of the Applicant's employment and certainly prior to the commencement of Mr Marshall's employment with the Respondent. I accept that for the purposes of this Application that the change of name on the business card is relied upon by the Applicant as background information and that it is not pursued as a separate claim.
I further find on the material before me that the termination could properly be regarded as a summary dismissal of the Applicant. I am not satisfied on the material before me that the termination of employment occurred as a consequence of any failure on the part of the Applicant to perform his normal duties. Had that been the case then in the normal course of industrial relations the employer would have counselled and/or warned the Applicant in relation to his performance and one would normally expect to find some written record of counselling and/or warning.
I am satisfied that the termination occurred in the context of a heated exchange between the Applicant and Mr Marshall. I am not satisfied that on that day when that heated exchange occurred that
Mr Marshall referred to the Applicant as a "Greek monkey." There is a clear conflict on the evidence in relation to that issue. It is strongly denied by Mr Marhsall and I accept that the Jones and Dunkel rule should apply regarding the failure of the Applicant to call Mr Elliott to corroborate the Applicant’s version of events. That failure leads to an inference that Mr Elliott’s evidence would not have assisted the Applicant. However even without that inference I am not satisfied to the required standard of proof, namely the Briginshaw standard that Mr Marshall called the Applicant a “Greek Monkey”. I am satisfied however that Mr Marshall behaved in a manner which was aggressive and inappropriate for a manager.
In my view however, the chronology of events following termination and the vague nature of the evidence of the Applicant combined with the fact that no reference was made to ethnic origin as being a basis upon which his services were terminated when the Applicant made his claim before the IRC supports the conclusion that although there were matters of concern throughout the course of employment to the Applicant that in truth and in fact the business card issue, the failure to obtain a pay increase, the general aggressive behaviour of Mr Marshall towards the Applicant did not form the basis and/or were not a cause of the Applicant's termination. Apart from the business card issue I am not prepared to find that there has been any breach of the RDA.
I prefer to accept that the termination occurred as a result of a heated exchange where even on the Applicant's evidence he had invited
Mr Marshall to "step outside" and where there was clearly animosity between the two which had been brewing for many many months. I am not satisfied that the ultimate termination of the Applicant's employment was a termination based upon any factor which would give rise to liability under the RDA.
In my view it is more likely that the termination occurred as a direct consequence of a personality conflict with a manager who on the evidence I have heard behaved inappropriately towards staff, but not in such a manner as to attract liability for the Respondent arising out of any provision of the RDA.
It should also be remembered that an allegation of racial discrimination is a serious matter, and I accept for the purpose of this Application that the appropriate test to be applied is the Briginshaw test. I further accept that the Applicant has failed to establish liability based upon the evidence.
Having regard to the failure of the Applicant to even refer to a suggestion of racial discrimination in his application to the IRC and given the effluxion of time from the date of termination to the date of the claim before the Human Rights Commission it is my view that the suggestion of racial discrimination has in fact been made as an after thought and/or after considering certain matters which arose during the course of employment by which in truth and in fact could not be said to be the cause of termination.
Had I been asked to make an award of damages in relation to the change of name on the business card I would have considered that to be in breach of the RDA. I should add though for the sake of completeness that given the lack of any consequences which flowed from the change of business name which could be said to cause ongoing problems to the Applicant I would be unlikely to conclude that the remedy should be anything other than declaring that unlawful discrimination had occurred. In any event I was not asked to deal with this as a discreet issue but rather as part of the background leading to the inference that the termination was a termination which was caused at least in part by the Greek background of the Applicant.
When considering the relationship between the Applicant and the Respondent it is clear to me that it was less than satisfactory. Management had failed to provide any adequate system of control over those required to supervise staff. It is regrettable that there did not appear to be in place any educative material which would assist or advise supervising staff to understand and appreciate obligations under the Human Rights Legislation and in particular the RDA. Had that educative material been available then I doubt very much whether the Applicant would have been asked to change his name on business cards. At the very least I suspect the change of name provided a basis upon which the Applicant suspected his termination was racially motivated.
As indicated however, I have not been asked by the Applicant to either make a finding or an award of damages based upon the discreet instance to which I have referred.
Hence having considered the material in the case which had been placed before the Court it is my view that the application should be dismissed.
In the circumstances where there is clear evidence of conduct of a kind which would otherwise perhaps attract the attention of the RDA and where there does not appear to be in place any particular measures which would assist supervisors of staff of the Respondent in avoiding potential contraventions of the Act it is my view that there should be no Order as to costs. It is also relevant that the termination occurred in a summary manner and in circumstances where there appeared to be little supervision by the respondent over management with a somewhat feudal approach to staff management permitted to prevail. Conduct of that kind not surprisingly leads to a grievance of the kind agitated before this Court.
I should add for the sake of completeness that even if I had been satisfied that there was a necessary causative link between the conduct to which I have referred and the termination of the Applicant's employment I am not satisfied on the evidence that the Applicant has established loss and damage which would be of a kind sufficient to attract an award of damages following termination. The statutory entitlements were paid and in my view the Applicant has failed in the absence of any medical or other evidence to establish that he had in truth an incapacity to be gainfully employed either in the car industry and/or some other endeavour within a very short period of time from his termination. In those circumstances I would not be inclined to accept that an award of damages was appropriate even if I had found that the termination of employment had occurred in breach of the RDA.
Costs
In this application NICHOLAS BATZIALAS (the applicant) had made a claim for discrimination under the Racial Discrimination Act 1975 (the RDA) against TONY DAVIES PTY LTD TRADING AS WATSON HOLDEN, (the respondent). When I delivered judgment and published my reasons on 16 October 2002 I had indicated, having regard to the findings I made, that there was on the material before me clear evidence of a kind which would otherwise perhaps attract the attention of the RDA where there did not appear to be in place any particular measures which would assist supervisors of staff of the respondent in avoiding potential contraventions of the act, it was my view that there should be no order as to costs.
I added in my reasons for decision that it was also relevant that the termination of employment occurred in a summary manner and in circumstances where there appeared to be little supervision by the respondent over management with a somewhat ‘feudal approach’ to staff management permitted to prevail. I went on to indicate that it was conduct of that kind which would lead to issues being agitated arising out of the rights the applicant may have under the RDA.
When I published my reasons for decision I indicated then to the parties that I would hear submissions on the issue of costs and would not enter the orders until I had heard the submissions, if any, to be made for and on behalf of the parties. After the date of delivery of the reasons for decision being delivered the court was advised that the respondent wished to be heard on the issue of costs. Accordingly, the matter was listed before this court this day in order to give the parties an opportunity to argue the matter of costs.
For and on behalf of the respondent this day I have been urged to consider making an order in relation to costs of a kind different from the kind foreshadowed in my published reasons for decision. Ms Beecher who appears for and on behalf of the respondent has relied upon written submissions dated 7 November 2002 and has indicated to the court, quite properly, that in this particular matter there was in fact an offer of compromise which had been prepared in the form appropriate and in accordance with the rules of the Federal Court of Australia.
This application was commenced in the Federal Court by application filed on 6 February 2001. It is noted that on 14 April 2001 by order of Ryan J the application was transferred to this court. My attention has been drawn to the notice of offer of compromise which, as I have indicated, is in the form consistent with the form required by the rules of the Federal Court. So there be no misunderstanding the rules of the Federal Magistrates Court provide in rule 1.05(1) the following:
“(1)It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules, either in whole or in part and modified or dispensed with as necessary.
(3)Without limiting subrule(2):
(a)…
(b)the provisions of the Federal Court Rules set out in Part 2 of Schedule 3 apply, with necessary changes to, general federal law proceedings.”
Schedule 3 of this Court's Rules in Part 2 provides, amongst others, that:
“Order 23 of the Federal Court Rules, except rules 14 and 15, apply.”
I am satisfied, therefore, without regard to the other detailed submissions that have been made for and on behalf of the respondent that it is appropriate in this case that I should apply Order 23 of the Rules of the Federal Court.
My attention has been drawn to Order 23 r.(5) and (6) of those rules which provides:
“(5) If:
(a) an offer is made by a respondent and not accepted by the applicant; and
(b) the applicant obtains judgment on the claim to which the offer relates no more favourable than the terms of the offer; then, unless the Court otherwise orders:
(c) the applicant is entitled to an order against the respondent; and
(d) the respondent is entitled to an order against the applicant;
for costs in respect of the claim taxed as provided in subrule (6).
(6)For the purpose of subrule (5), if an offer was made:
(a) on the day before the trial or hearing of the proceeding commenced; or
(b) on any later day,
then unless the Court otherwise orders;
(c) the applicant is entitled to costs, in respect of the claim, incurred up to 11 am on the day following the day on which the offer was made; and
(d) the respondent is entitled to costs in respect of the claim, incurred after that time;
taxed on a party-party basis.”
In the present case the court decided that the application be dismissed. I had foreshadowed that there be a further order that there be no order as to costs and did so for the reasons to which I have briefly referred. The offer of compromise, which has now been brought to the court's attention, was dated 10 April 2001 and I am told – it is not disputed – it was served on that day by facsimile transmission. That offer provides as follows:
“TAKE NOTICE that the Defendant offers to compromise the Plaintiff's claim in the total sum of $200.00 plus costs.
THIS OFFER is open to be accepted for 14 days after service of this Notice only.
THIS NOTICE of offer of compromise is served in accordance with Order 23, Rule 3 of the Federal Court Rules.”
No issue is taken as to the name of the parties in that notice as the court heading clearly indicates reference to applicant and respondent and it seems obvious to me that in this application the offer of compromise form was in error only to the extent that it refers wrongly to ‘plaintiff‘ and ‘defendant’. I take plaintiff to mean applicant and defendant to mean respondent.
It was submitted on behalf of the respondent, therefore, that I should make an order consistent with the rules of the Federal Court to which I have referred. In this case the hearing of the matter took two days and the judgment was reserved for a considerable period of time while the court considered the issues that had been raised and agitated by the parties. It is said for and on behalf of the respondent that if I were minded to make an order in favour of the respondent for costs I should do so on and from 11 am on 11 April 2001 up to and including this day and that I should do so on the basis of costs to be taxed in accordance with schedule 1 of the Federal Magistrates Court Rules.
Whilst it is true that for a short period of time between 11 April and 14 April the matter was before the Federal Court of Australia, no issue is taken as to the appropriate costs scale. I understood the respondent's submission to be that in the circumstances the costs should at least run from that date. The issue is whether or not I should make any other order having regard to the finding that in fact in this case the court was not satisfied the application could be sustained and it was dismissed.
It seems to me that in those circumstances the only realistic approach that I should adopt toward the issue of costs is the issue of costs on and from the date of the offer of compromise being served and in accordance with order 23 of the Federal Court Rules.
It was submitted for and on behalf of the applicant that notwithstanding the offer of compromise and the rules, that the court had made significant findings in relation to conduct on the part of the respondent and that in the circumstances, although the court had dismissed the application, the court was clearly in a sense – and I interpolate here - somewhat critical of the respondent's conduct and indeed in a very real sense found that although damages and even a declaration were not sought for a breach identified of the legislation in my reasons for judgment, but in those circumstances I should exercise my discretion and adhere to the proposed order referred to in my published reasons. It was submitted that a court, notwithstanding the rules, still has a discretion in relation to the issue of costs.
It is clear to me on a proper reading of the rules the court does still possess a discretion. That much is clear from the words of the rule which provide "unless the court otherwise orders". I am therefore satisfied that there is a discretion and it was proper for the applicant to argue that in this case notwithstanding the offer of compromise that I should consider the exercise of that discretion having regard to all the circumstances of this matter.
The issue of costs in human rights claims was the subject of a decision which was delivered by me in the matter of Ball v Morgan & Anor [2001] FMCA 127. In that case at paragraph 83 I considered the issue of costs and considered certain other authorities to which I was then referred. At paragraph 87 of that judgment I said:
“In my view the general principle in relation to costs is that costs should follow the event. I see no reason for departing from that general principle in human rights applications though I acknowledge the cases to which I have been referred by the applicant's counsel provide at least some examples of circumstances where a court has been prepared to exercise its discretion in favour of unsuccessful applicants by not awarding costs.”
I refer to the facts of that particular case and the provisions of the legislation which provide power to this court to award costs, and in particular s.79 of the Federal Magistrates Court Act 1999. After reciting that provision I say at paragraph 93 the following:
“It is clear from the section that the legislature contemplated that there may be occasions when other Acts or indeed the Rules of the court provide that costs must not be awarded. An exception has been clearly made in relation to family law and child support proceedings and it is significant in my view that there is no exception or exclusion made in relation to litigation brought pursuant to human rights legislation. The absence of the power of the commission to avoid costs cannot be used as a basis upon which it should be suggested that in the case of unsuccessful applicants that absence of the power to award costs by the commission should somehow fetter and/or restrict the power to award costs by a court. Had Parliament wished to restrict the court's power to award costs then it clearly could have done so with an appropriate provision. The suggestion that human rights matters are normally to be considered as ‘no costs matters’ is therefore, in my view, misconceived and cannot be regarded as an appropriate legal principle to be applied in human rights applications.”
I then go on to indicate that the court has, in the exercise of its discretion, the powers that would normally apply in litigation. In my view, the principles to which I have referred in that decision apply equally to the issue of the application of the rules in relation to an offer of compromise. Had Parliament decided that in human rights applications that the Offer of Compromise rule should not apply, and indeed had the court decided in preparing its rules that order 23 of the Federal Court Rules should not apply to human rights applications, then that could have been clearly referred to either in the rules or indeed in the legislation.
The rules have been made in accordance with the powers given to the court by parliament in the legislation enabling this court to be established. In my view, the rules which effectively adopt order 23 of the Federal Court Rules are rules that have been appropriately made in the circumstances and unless there is a contrary intention either in the legislation or rules, it is my view that those rules, including order 23, of the Federal Court Rules apply to human rights matters.
It is submitted on behalf of the applicant that this is a relatively new court jurisdiction, that this matter in particular was one of the earlier matters to be agitated in this court. Indeed that is correct. It is also true to say that the court has given careful consideration to this matter over a longer period than the court would have preferred, but nevertheless has done so against the backdrop of competing resource issues.
Having considered the matter, however, it seems to me that despite the fact that it is said that these applications are relatively new, in the circumstances a consideration of the particular circumstances of this case would at least have led to proper consideration of the circumstances of a failure to comply with a notice of offer of compromise. I should say, as a matter of fairness, that the rules of the court were rules of the court which in fact were prepared at the early stages of the court's operation and the assumption would need to have been made prior to the commencement of these rules on 30 July 2001 that the Federal Court Rules would otherwise apply in the absence of rules of this court.
I accept in the circumstances the submission made for and on behalf of the applicant that at the early stages of proceedings in this court there may have been a degree of novelty in this case and perhaps a degree of uncertainty as to what may or may not transpire upon a full hearing and determination of the issues to be agitated in this court. Making due allowance for that, however, does not, in my view, extend to ignoring the application of order 23 of the rules of the Federal Court.
In this matter the claim being made for damages was clearly a claim which, as I indicate in the reasons for decision, did not appear to be necessarily sustainable, even if I had found in the circumstances that there had been a case made out for and on behalf of the applicant. As I say in my judgment, there was little evidence by way of medical report or other material to suggest there had been any significant impact upon the applicant of the events alleged. I indicated the court should not in the circumstances award other damages in relation to the application in the event that it found in favour of the applicant.
I refer in some detail in paragraph 79 to the issue of damages. It seems to me clear upon a proper consideration of all the evidence, and equally clear to the applicant at the time when the notice of offer of compromise was served, that this was not necessarily a significant monetary claim. Hence, the offer of compromise of the total sum of $2000 plus costs was an offer that needed to be seriously considered. The offer was not the subject of any response. In exercising the discretion which I undoubtedly have in this case, it is my view that in human rights matters a notice of offer of compromise must be considered in the same way as a notice of offer of compromise in any other form of litigation.
In the circumstances of this case, notwithstanding the submissions made for and on behalf of the applicant, I am prepared to accept that the rejection, or at least non-response, to that notice of offer of compromise does lead to the consequences which are clearly contemplated on a proper reading of Order 23(3) of the Federal Court Rules. Notice of that fact was clearly inserted in the notice of offer of compromise which was served on 10 April 2001.
I note for the purpose of this order that the advocate engaged by the respondent was a solicitor acting as advocate and accordingly in relation to costs Rule 21.14 of the Federal Magistrates Court Rules applies.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 7 November 2002
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