Denmeade v Kempsey Shire Council & Ors (No.3)

[2004] NSWADT 54

CITATION:	Denmeade v Kempsey Shire Council & Ors (No.3) [2004] NSWADT 54
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lindy Denmeade FIRST RESPONDENT: Kempsey Shire Council SECOND RESPONDENT: Keith Finnie THIRD RESPONDENT: Andrew Evans FOURTH RESPONDENT: Warren Howe FIFTH RESPONDENT: Chris Gorman SIXTH RESPONDENT Kevin Shaw SEVENTH RESPONDENT Gary Grant
FILE NUMBER:	991104 & 021023
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	11/07/2003
DATE OF DECISION:	03/18/2004
BEFORE:	Britton A - Judicial Member; Alt M - Member; McDonald O - Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Denmeade v Kempsey Shire Council and ors [no.3] [2003] NSWADT 225 Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998 Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Maylor (No. 2) v- Mid North Coast Area Health Service [2001] NSWADT 118 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Wilde v University of Sydney (No 2) [2004] NSWADT 16
REPRESENTATION:	APPLICANT In person FIRST - SIXTH RESPONDENTS: K Nomchong, barrister SEVENTH RESPONDENT R Banks, solicitor
ORDERS:	1. The application by the First to Sixth Respondents for costs is refused; 2. The application by the Seventh Respondent for costs is refused

1 The Respondents in these proceedings apply for costs under s 114(2) of the Anti-Discrimination Act 1977 (“the A-D Act"). That application is opposed by the Applicant.

2 In our decision published on 30 September 2003, Denmeade v Kempsey Shire Council and ors [no.3] [2003] NSWADT 225 (“the judgement”), a complaint of victimisation against the First Respondent, Kempsey Shire Council, was upheld. The balance of complaints made by the Applicant to the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) and subsequently referred to the Administrative Decisions Tribunal (“the Tribunal”) were dismissed. The following orders were made:

The complaints of discrimination on the ground of sex, sex harassment and victimisation made against the Second to the Seventh Respondent (inclusive) are dismissed;

The complaint of aiding and abetting made against the seventh respondent is dismissed;

The complaint of victimisation against the First Respondent in relation to Allegation 10 is upheld; the balance of the complaint/s of victimisation against the First Respondent is dismissed;

The Applicant is awarded damages in the sum of $4000.

Parties granted leave to apply for costs. Application and submission for costs to be filed and served within 14 days of the date of these orders.

3 The Second to Sixth Respondents were each employees of the First Respondent for some or all of the period spanned by the Applicant’s complaints. The Seventh Respondent, Gary Grant, is a psychologist who was contracted to provide services to the First Respondent.

4 In these proceedings, as in the substantive proceedings, all parties except for the Applicant were legally represented. The First to Sixth Respondents made a joint application for costs. A separate application was made by the Seventh Respondent.

5 Before turning to the merits of these applications, we set out a brief history of this matter.

Background

6 Ms Denmeade was employed as a labourer in the Parks and Gardens division of Kempsey Local Council from May 1995 until her employment was terminated in January 2000. From early 1998 onwards she did not attend work.

7 On 6 April 1998 Ms Denmeade lodged with the President the first of five complaints. She alleged that the First Respondent, and employees, Keith Finnie, Warren Howe, Chris Gorman, and Kevin Shaw (respectively the Second, Fourth, Fifth and Sixth Respondents) unlawfully discriminated against her on the grounds of sex in the area of employment. In addition, she alleged that each victimised her. That complaint spanned the period May 1995 to April 1998. A second complaint was lodged in July 1998, again alleging sex discrimination and victimisation. That complaint concerned alleged disclosures made by the Second Respondent to rehabilitation provider Kate Harding.

8 The Applicant lodged a third complaint in February 1999 alleging victimisation by the First Respondent because she had made a complaint to the Board. That complaint concerned a workplace meeting held in January 1999 where the Applicant’s complaint/s to the Board was discussed. On 1 June 1999, the Applicant lodged an additional complaint about the January meeting (“the fourth complaint”).

9 The Board attempted to resolve these complaints without success. In September 1999, the President referred these four complaints to the Tribunal under s 94(1) of the A-D Act.

10 In May 2001, a further complaint was lodged with the Board (“the fifth complaint”). In that complaint the Applicant alleged that the First Respondent, by terminating her employment, had discriminated against her on the ground of sex and victimised her. The President exercised his discretion to accept that complaint out of time under s 88 (4) of the A-D Act and referred it to the Tribunal on 1 March 2002.

11 The matter was heard in Kempsey and Port Macquarie over six days.

Discretionary costs rule

12 Section 114 (1) of the A-D Act provides that each party to an inquiry shall pay his or her own costs. However s 114(2) grants the Tribunal a discretion to “make such orders as it thinks fit” where it “is of the opinion in a particular case that there are circumstances that justify it doing so”.

13 The principles underlying this provision are well known and have been the subject of detailed consideration by the Equal Opportunity Division of the Tribunal: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10; Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4; Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25; Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36; Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45; Maylor (No. 2) v- Mid North Coast Area Health Service [2001] NSWADT 118 and Wilde v University of Sydney (No 2) [2004] NSWADT 16.

14 The Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski observed at [63]-[65], that s 114 of the ADA does not prescribe a test to be applied, but rather creates a presumption in subsection (1) and a discretion in subsection (2). The Panel cautioned that this discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made: Gallagher v NSW Police Service [1998] NSWEOT, 30 September 1998. The Panel went on to say at [67] that in order to justify awarding costs “there has to be something over and beyond a normal course of circumstances”:

"This should be understood to mean nothing other than that the presumption in section 114(1) 'must yield' when in a particular case there are circumstances justifying the making of a costs order ( Penfold v Penfold (1980) 144 CLR 311 at page 315). To similar effect, there may be in a particular case 'circumstances which justify the departure from the general rule' ( Australian Postal Commission v Dao & Anor (No 2) (1986) 6NSWLR 497 at 505)."

15 In Tu v University of Sydney the Appeal Panel observed at [42] that “the sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.”

16 In Borg v Commissioner, Department of Corrective Services & Anor the Tribunal examined in some detail previous decisions where costs orders have been made in favour of the applicant. The Tribunal observed at [21] that as a general proposition a combination of circumstances is required in order to justify an award of costs.

17 Section 88 of the Administrative Decisions Tribunal Act 1997 (“the Tribunal Act”) provides, that subject to the Tribunal’s own rules and any other legislation, costs will only be awarded “if [the Tribunal] is satisfied that there are special circumstances warranting an award of costs”. Practice Note 12, issued on 4 March 2003, sets out the following examples of “special circumstances” which may warrant an order for costs under s 88(1):

- whether a party has conducted proceedings in a way that disadvantaged another party to the proceedings by conduct such as…;

- whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

- the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

First to Sixth Respondents

18 The First to Sixth Respondents submit that the circumstances of this case warrant a departure from the usual costs rule.

19 The Respondents point to the following factors which they argue support the contention that an order for costs is warranted:

First, the Applicant’s failure to establish sixteen out of seventeen allegations in particular any allegations against the Second to Sixth Respondents. It is asserted that most of the Applicant's claims were “doomed from the start” as they disclosed no less favourable treatment and/or no discriminatory treatment on the ground of gender.

Second they contend the Applicant’s conduct caused the proceedings to be unnecessarily protracted as a result of her:

- reliance on voluminous, largely irrelevant documentation;

- failure to bring any or any adequate evidence to establish most of the allegations;

- failure to indicate which particular provisions of the A-D Act were alleged to have been contravened in respect of each allegation;

- failure to delineate which of the seven respondents was allegedly responsible for each alleged breach;

- making of claims (such as the claim in defamation) which were not a cause of action available under the A-D Act;

- persistence in raising matters which fell outside the scope of the inquiry (s 88(3) of the A-D Act) despite the Tribunal’s ruling;

- inability to clearly articulate the exact nature of her claim for the period December 1997 through to January 2000;

Fourth the Applicant’s refusal to engage in settlement negotiations.

20 The Seventh Respondent contends that a costs order is warranted for the following reasons: first, the complaint against him was both vexatious and lacking in good faith; second, the Applicant refused to accept a reasonable offer of settlement; third, the late joinder application.

21 The Seventh Respondent repeats the submissions made for the First to the Sixth respondents that the Applicant’s conduct of her case meant that the proceedings were unnecessarily extended.

Vexatious and Lacking in Good Faith

22 The Seventh Respondent submits that the Applicant's complaint against him was both vexatious and lacking in good faith.

23 As noted, the Tribunal dismissed the Applicant’s complaint about the termination of her employment (see para. [197] – [214]). As there was no finding of primary liability, the claim that the Seventh Respondent aided and abetted (s 52) the First Respondent, in relation to the termination was dismissed.

24 The Seventh Respondent asserts that the Applicant had no reasonable basis for believing that her employment had been terminated because she had complained to the Board or, on the ground of her sex or, that the termination was in any way linked to his conduct. He contends that there was a completely rational explanation for the decision to sack the Applicant (her failure to attend work for two years). In support he points to the Tribunal’s finding set out at para. [211] of the judgement that the "real or operative reason" for the termination was not that the Applicant “had complained of discrimination but that she did not appear to have any intention of returning to work."

25 The Seventh Respondent relies on the recent decision of Sleiman v Kmart [2003] NSWADT 21 which considered when "special circumstances" were sufficient to move the Tribunal to make a costs order. In that case, the Tribunal determined that the complaint was both vexatious and lacking in good faith and ordered costs against the applicant:

81. In this matter we are satisfied that Mr Sleiman has no reasonable basis for believing that the conduct he complained of was on the ground of his race. There is no objective indication that his race was a ground for Kmart's conduct.

82. We find it difficult to accept that Mr Sleiman was even in the position of many race discrimination complainants: that they are at a loss to explain why they have been subjected to certain conduct, and so conclude that it must have been on the ground of their race.

26 Similarly it is asserted that the Applicant had no reasonable basis for believing that her employment had been terminated as a result of her complaint or, on the ground of her sex or, was in anyway linked to any actions of Mr Grant.

Applicant’s Submissions

27 The Applicant submits that:

- she conducted her case as best and as efficiently as she could. She claims she had great difficulty understanding aspects of the proceedings but tried to comply with all directions of the Tribunal. She asserts that these difficulties were compounded by “psychological problems” caused by her employment with the First Respondent;

- she did not intentionally seek to delay the proceedings by putting on large amounts of material. She states she did so as she had been advised that this would assist the Tribunal.

- the respondents’ respective accounts of the settlement discussions are incorrect. She claims she felt threatened and intimidated by the approaches made to her by the respective representatives of the parties. She states she had proposed a reasonable basis for settlement in the course of conciliation discussions organised by the Board which was rejected;

- the respondents’ assertion that her complaints lacked foundation or were made in bad faith, is without foundation. The Applicant referred in detail to parts of the judgement, which she asserts illustrate that the Tribunal accepted her account of events.

28 The issue for the Tribunal to determine is whether the circumstances of this case warrant an order for costs. It is well-known, but worth restating here, that the ordinary rules as to costs are very different from those which obtain in most fields of litigation. Generally speaking, an unsuccessful litigant can expect to be ordered to pay their opponent’s costs on a party-party basis. There are certain exceptions to the general rule and these are, for the most part, governed by statute.

29 It appears to have been Parliament’s intention to enable persons aggrieved on account of possible unlawful discrimination (or actions by others that they perceive to be unlawfully discriminatory) to have ready access to a remedy. Experience shows that many, if not most, persons against whom discrimination has been practised in the past come from disadvantaged groups. Social disadvantage is often, but not exclusively, accompanied by financial disadvantage.

30 While there is obviously an element of unfairness to successful respondents in overriding the general practice in relation to costs, Parliament has weighted the balance in favour of applicants in this jurisdiction in order to provide greater access to justice for persons from disadvantaged groups. Nonetheless, the legislation and Practice Note 12 provide measures against abuse of process (in the broad sense of the term). In short, applicants are not allowed open slather – they must have cases that are, at the very least, arguable or they face a costs sanction. Similarly the conduct of parties may be relevant in any costs determination.

31 A party seeking costs bears the onus of proving that their case falls within one of the narrow range of exceptions to the general provision that costs will not be ordered. It may be that the A-D Act ought ideally provide for some sort of statutory indemnification (such as a Suitors’s Fund) for successful parties. That, however, is not currently the case and is a matter for Parliament.

32 We turn now to the arguments advanced by the Respondents.

Were the proceedings hopeless from the start?

33 The First to the Sixth Respondents argue that the Applicant’s case against each of them was hopeless from the outset since it disclosed no less favourable treatment or discriminatory treatment on the basis of gender. They submit that at worst most of the Applicant’s complaints were in relation to workplace disputes and conflicts of personality. (We will deal with the complaint against Mr Grant separately below.)

34 It is noteworthy that the President did not decline to entertain any of the Applicant's complaints under s 90 of the A-D Act on the ground that they were “frivolous, vexatious, misconceived or lacking in substance, or any other reason”.

35 In our opinion, while the Applicant ultimately failed to substantiate most of her complaints, the cause was not hopeless from the outset. In substance, the Applicant made serious allegations of sex discrimination and other matters. Much hung on questions of the degree to which the Second to Sixth Respondents were said to have misconducted themselves. In essence, the outcome of these complaints depended on issues of credit and credibility and the onus of proof. As we outlined in our judgment, we made findings, for example, that “We do not doubt that some of the men with whom Ms Denmeade worked are not sensitive to gender issues and may indeed even resent working in what has traditionally been regarded as a male domain. Nor do we doubt that that some of them, from time to time, made their views known to her, and that these views understandably offended her.” at para.[98]. It is a fine line between occasional rudeness and offensiveness and the consistency required to prove harassment. We gave the respondents the benefit of the doubt in relation to that complaint. This does not mean that the complaint lacked substance at the outset.

36 In relation to the question of pornographic material, while we found that the complaint had not been substantiated, again there was material on which the Applicant mounted an arguable case.

37 In relation to the “key incident” (see judgment at paras. [100]-[107]) we accepted that it was possible that Mr Shaw had removed the keys to antagonise the Applicant but we were not prepared to draw that conclusion. Again, in all the circumstances, the Applicant had an arguable, though not strong, case. Similarly, the “spider incident” (see judgment at paras. [108]-[114] was, depending on all the surrounding circumstances, arguably an instance of some sort of discrimination or harassment on the basis of gender, but we could not be satisfied that the complaint had been made out on that basis. Nevertheless, neither of those complaints was entirely without substance, self-evidently frivolous or vexatious.

38 We also concluded that Mr Finnie’s disciplinary meeting with the Applicant on 22 December 1997 could not be viewed objectively as being discriminatory or as a form of harassment. It is clear that Ms Denmeade construed the fact that she had received a warning as some sort of sign that what she perceived as harassment was being condoned. It is evident that she saw this as a further instance of a system “stacked against” her. She took the view that she was the innocent victim who was not being supported or adequately protected against her workmates who were harassing her and discriminating against her. In her view, Mr Finnie’s mild disciplining of her compounded the injustice. This was, in all the circumstances as she perceived them, an understandable reaction, even though the facts, viewed objectively, did not support her argument. The same comments can be made about the allegations that Mr Shaw had “threatened” her on 23 December 1997 and that Mr Finnie had commented adversely about her to Ms Harding on about 16 April 1998. These complaints, at face value, were not self-evidently specious. An investigation of the evidence was required and findings concerning the credibility and credit of witnesses had to be made before we could determine the relevant facts. It is sometimes the case that perpetrators of discrimination are protected by their superiors. We took the view that the Applicant had not proven that. However, hers was not a hopeless case from the outset.

39 It is unnecessary here to deal with each and every complaint or allegation because the events which flowed over into 1998 and 1999 all had their source in the events of 1997 and can be seen as flow-on effects. The gravamen of the case in relation to the First to Sixth respondents lies there and in the various responses taken by Council and its agents in response to the allegations concerning harassment and discrimination. In our view, the only significant allegation against the First to Sixth Respondents which lacked substance was the decision to terminate her employment after she had been absent from work without leave for a lengthy period of time.

40 In summary, most of the allegations against the First to the Sixth Respondents that were ultimately distilled from the Applicant’s material were matters requiring investigation. They were found to be arguable, especially when all the surrounding circumstances were considered. That she failed to substantiate most of them does not lead necessarily to a costs order. It is also to be noted that she was found to have been victimised at the meeting of 28 January 1999. That meeting may have led her to view her previous experiences with her workmates and superiors in the worst possible light. In any event, she succeeded in establishing one of the more significant of her allegations.

41 In relation to the First to the Sixth Respondents, therefore, we do not see that the Applicant at any stage had an unarguable or hopeless cause of action. In our opinion, the respondents have not established, on this ground, that it would be appropriate to make a costs order against her.

Protracted proceedings

42 More troubling is the submission made by all respondents that the proceedings were unnecessarily protracted because of the Applicant’s conduct of the case. They point in particular to the lack of precision in the Amended Points of Claim, especially for the period January 1998 to January 1999; the voluminous documentary material relied upon and the Applicant’s persistence in raising matters outside the scope of the complaint/s.

43 As noted at para. [22] of the judgement, in cases where a large amount of material is filed and the “pleadings suffer from a lack of precision” it is not uncommon for the Tribunal and the parties to struggle to identify what are the alleged contraventions of the Act. As we noted, this is not uncommon in matters brought by self-represented parties, “some of whom, not surprisingly, experience great difficulty identifying and refining the issues in dispute and reducing those to the language of the law”.

44 We have considerable sympathy for the position of the respondents. They have been put to significant expense in defending a number of complaints all but one of which was dismissed after a six-day hearing. Their respective costs may have been less had the Applicant refined her case and focussed more closely on the issues in dispute.

45 Against this, we note that is no rule in this jurisdiction that an applicant file Points of Claim whether at all or in a particular form. An ability to draft “pleadings” is not a pre-requisite to participation in this jurisdiction. Nor is a self-represented party required to run his or her case in a manner expected of a competent legal practitioner. It is notoriously difficult for a self-represented litigant who has a number of grievances extending over a period of time to identify and focus on those that are relevant to the determination of their complaint.

46 While it is understandable that self-represented parties may have legitimate difficulties presenting their case, this is not to say that any conduct, however egregious, will be tolerated. Practice Note 12 identifies the following as special circumstances which may justify an award of costs under s 88 of the Tribunal Act:

- whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as –
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

- whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding.

47 While s 114 of the A-D Act does not mirror s 88(1), these examples, in our view, provide useful guidance on the exercise of our discretion under s 114(2).

48 That the proceedings were extended by the Applicant’s lack of legal competence is probably unquestionable. The Applicant however, complied with all directions of the Tribunal, did not ask or cause an adjournment, did not, to our knowledge, attempt to deceive another party or the Tribunal. While the consequence of her lack of legal training and experience may have been that the proceedings were unnecessarily extended, we do not find that she deliberately conducted the proceedings vexatiously, or that she prolonged the proceedings unreasonably. What is reasonable in the circumstances is not determined by asking what would be reasonable if she had been represented by competent counsel. Rather the question is what was reasonable for her to do, given her lack of legal expertise.

49 The fact that the Applicant’s case lacked focus, clarity and did not adequately distinguish between separate respondents seems to us to demonstrate the difficulties inherent in the ideal of “access to justice” in an environment where the provision of legal aid is limited.

50 Accordingly, we are not persuaded that costs ought be awarded on this basis.

Failure to engage in settlement negotiations

51 All respondents criticise the Applicant for failing to engage in settlement negotiations.

52 A self-represented party is not ordinarily in a position to judge the fairness or reasonableness or otherwise of any settlement proposal put to him or her. Ordinarily, they have limited understanding of the legal issues in the case and the relative importance, in objective terms, of different issues their cases are canvassing. It is our experience that self-represented parties are often reluctant to concede or surrender what most lawyers would regard as minor, undisputed issues for fear of giving away a forensic advantage to their opponents.

53 The representatives for one side cannot provide independent legal advice to the opposing party. They must represent their own clients’ best interests (within ethical limits). Of course it is generally preferable for parties to settle their disputes between themselves. However, when one party is significantly disadvantaged in such negotiations by the lack of legal representation or skills and experience, we do not think it is fair to criticise them for refusing to participate in what they apprehend as an unfair contest outside the jurisdiction of the Tribunal.

54 This highlights again our remarks above concerning the real and practical difficulties for all parties where access to legal aid is limited.

The Seventh Respondent: Mr Grant

55 The Seventh Respondent, Mr Grant, was joined late to the proceedings and accordingly had no opportunity, to seek to delineate his position from that of other respondents through the Board’s conciliation process.

56 We accept the submissions made for Mr Grant that “Ms Denmeade had no rational basis for believing that the termination of her employment by Council was in any way linked to any actions of Mr Grant”. Once the evidence was adduced, it became clear that there was not, and never had been, even an arguable circumstantial case against Mr Grant in respect of the termination. It is also noteworthy that the Seventh Respondent made a generous settlement offer to the Applicant in the course of proceedings. There is no Calderbank rule provided for in this Tribunal but where a party makes a reasonable offer of settlement and it is refused, this should be taken into account (without necessarily being the decisive factor) when a costs order is considered.

57 As Mr Grant’s supposed participation in any alleged wrongdoing against the Applicant was peripheral no matter how the Applicant ran her application, he, even more than any of the other respondents, was prejudiced by the lack of specificity in the Points of Claim and the amount of time taken to clarify the Applicant’s case.

58 It appears that, in respect of Mr Grant’s role in her dismissal, the Applicant simply threw out a net and pulled him in, on the off-chance that he may have had something to do with the Council’s alleged victimisation/discrimination of her.

59 Considered objectively, to commence an action against someone without at least reasonable evidence, is an abuse of process. Mere suspicion can never be an appropriate basis to commence legal action against another person. If an action is commenced to find out whether a person has committed some wrongdoing against a party, that is a mere fishing expedition and, it goes almost without saying, is an abuse of process. In this case, therefore, on the face it was an abuse of process to join Mr Grant and the mischief was compounded by the refusal to accept the offer made by him at the conclusion of Day 4 of the hearing.

60 Against this, we note that it is apparent from a reading of the Applicant’s submissions on costs that she was genuinely confused (and remains so) about the scope of the Tribunal’s inquiry in respect of Mr Grant. It is apparent from her submissions that she remains unclear why the Tribunal determined that the scope of the complaint against Mr Grant was limited to his purported role in respect of the termination (see judgement at para [41]-[44]). Interestingly she now asserts that the Tribunal and the Seventh Respondent were mistaken: she never claimed that Mr Grant “aided and abetted” the Council over her dismissal. [The Applicant maintains that the “Grant Report” did influence the First Respondent’s decision to terminate her employment (Applicant’s Submissions on Costs, 7 November 2003, paragraph 7(h))].

61 It may be, as the Applicant now asserts, that her claim in respect of Mr Grant did not relate to the termination of her employment. If so, that was not clear to the Tribunal nor apparently to Mr Grant, in either the joinder application or the substantive proceedings.

62 As best as we can make out, it would now appear that the Applicant held the mistaken view that unless Mr Grant was joined as a party to the proceedings she would have been unable to raise issues concerning his role in the conduct of the January 1999 meeting and his subsequent report. As noted, we found that part of the complaint of victimisation in relation to the January 1999 meeting was substantiated: para. [170]-[186] but that the complaint about the report, was not: para. [189]-[196].

63 The Seventh Respondent has in our view the most meritorious claim for an award of costs in this matter. He was drawn into proceedings concerning complaints which as it turned out he had little involvement. We agree that it ought to have been abundantly clear to the Applicant by end of Day 4 of the hearing that there was simply no case against Mr Grant. A reasonable offer of settlement was made on his behalf. As a consequence he was unnecessarily exposed to six days worth of legal costs.

64 It is arguable that the Applicant’s decision to press on against Mr Grant after the offer of settlement constitutes an abuse of process on balance. However, after careful consideration we are not persuaded that it was so. On the evidence before us we do not find that the reason that the Applicant made the joinder application and or pressed on in her claim against Mr Grant was because she sought to or intended to harass him, cause mischief or extend the proceedings, although this no doubt was the effect of her conduct. In reaching this difficult conclusion, we have taken the view that some leniency ought be extended to the Applicant given her apparent difficulties and confusion as referred to above at para. [61]-[63].

Late Joinder

65 The Seventh Respondent contends that he was effectively denied the opportunity to appeal the joinder application due to the delay in the publication of the Tribunal’s statement of reasons. The Seventh Respondent was represented in the joinder proceedings and an extempore decision given on the day that application was heard.

66 It was open to the Seventh Respondent to appeal the joinder application. The fact that the transcript of the decision was delayed was unfortunate but it is not a matter relevant to the Applicant’s conduct or the exercise of our discretion under s 114(1) of the A-D Act.

Summary

67 We conclude that the respective application for costs ought be refused.

Orders

The application by the First to Sixth Respondent for costs is refused.

The application by the Seventh Respondent for costs is refused.