Gray v State of Victoria

[2000] VSC 342

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6087 of 2000

LYNDA GRAY	Plaintiff
v.
THE STATE OF VICTORIA AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 AUGUST 2000
DATE OF JUDGMENT:	17 AUGUST 2000
CASE MAY BE CITED AS:	GRAY v. STATE OF VICTORIA & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 342

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CATCHWORDS:      Appeal from refusal of Master to grant leave to appeal from decision of the Victorian Civil and Administrative Tribunal – Failure of Tribunal to award costs to successful complainant – No arguable error of law by Tribunal – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Shand QC and Ms R. Germov	Maureen Daly
For the First Defendant	Mr. T. Ginnane	Maddock Lonie Chisholm

HIS HONOUR:

1. The plaintiff is a school teacher by occupation and was employed as such by the first defendant, the State of Victoria.  The second defendant, Ken Pettman, was also a school teacher employed by the State of Victoria and, at the relevant time, worked at the same school as the plaintiff.

1. On 20 August 1996 the plaintiff lodged a complaint of discrimination, sexual harassment and victimisation under the Equal Opportunity Act 1995 with the Equal Opportunity Commission. The respondents to her complaint were the defendants. The plaintiff alleged that she had been the victim of 33 acts of sexual discrimination, 17 acts of sexual harassment and 15 acts of victimisation committed by one or other of the defendants. The complaints were referred to the antidiscrimination list of the Victorian Civil and Administrative Tribunal.

1. After a 45 day hearing, which extended over the period from 28 January 1997 to 31 May 1998, on 9 June 1999 the Tribunal found that the plaintiff had proved ten cases of discrimination against the second defendant, ten claims of sexual harassment against the second defendant, nine claims of victimisation against the second defendant and four claims of victimisation against the first defendant.

1. The Tribunal further found that the first defendant was vicariously liable for the acts of the second defendant.

1. The Tribunal ordered that the defendants pay to the plaintiff the sum of $35,000 general damages in respect of the contraventions.  It held that the first defendant was responsible for five-sevenths of that sum and the second defendant two-sevenths.  The tribunal further ordered that the first defendant pay the plaintiff the sum of $20,000 by way of aggravated damages.

1. Having considered submissions made by the parties as to the costs of the proceeding, on 15 June 2000 the Tribunal held that it would make no order as to the costs.  In its finding in that regard, the Tribunal said at page 14 of its reasons:

"The First Respondent was ordered to pay aggravated damages because the First Respondent did not properly or promptly investigate a complaint of sexual harassment.  This caused the Complainant to continue to suffer stress in contesting long and hard fought cases before this Tribunal and the Workcover Authority to establish her claims.  The Complainant submitted that these were matters which ought to be taken into account by the Tribunal in awarding costs to her.  The  First Respondent objected, submitting that aggravated damages had already been awarded for those matters and they could not be relied upon again to assist the Complainant in respect of costs.  The Tribunal agrees. 

Overall, the Tribunal cannot be satisfied that it is fair to make an order against any party to pay the costs of another party in this proceeding.  It was fought hard and long by all parties.  All parties on occasions behaved in a manner which prolonged the hearing beyond what the Tribunal would have hoped and gave evidence or cross examined on relatively unimportant or insignificant matters.  On balance, it would be difficult to try and apportion degrees of blame, and consequently not fair to make any costs order.  The Tribunal finds that they should lie where they fall."

1. On 7 August 2000, the plaintiff made application to a Master of the court for leave to appeal from the Tribunal's order as to costs. The application was made pursuant to the provisions of s.148 of the Victorian Civil and Administrative Tribunal Act 1998, the relevant provisions of which read:

"148.  Appeals from the Tribunal

(1)A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -

(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or

(b)to the Trial Division of the Supreme Court in any other case -

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal."

1. The appeal sought to have the costs orders made by the Tribunal set aside and that in lieu thereof an order be made that the State of Victoria pay the plaintiff's costs of the proceeding.  No cost order was sought against the second defendant.

1. What was originally said to be the questions of law raised by the plaintiff's appeal are set out in her proposed Notice of Appeal, which is Exhibit MD11 to the affidavit of Maureen Daly sworn 19 July 2000.  They are so lengthy, I do not propose to set them out in my reasons for judgment.  Indeed, the length of them is such as to make them quite unacceptable.  If a question of law arising from a tribunal's determination cannot be stated succinctly and precisely, particularly when the application for leave to appeal relates to an order for costs only, one tends to suspect that in reality no real question of law is raised by the tribunal's decision.  At all events, that was the view taken by the Master, and he dismissed the application.

1. The plaintiff now appeals to a judge of the court.  As the plaintiff did not seek to rely upon the grounds in the proposed Notice of Appeal during the course of the hearing before me, I make no further comment concerning them.

1. In his order of 7 August, the Master has recorded the following observation:

" ... if the appeal were to proceed the only question open would be:

'What principles should be considered by the Tribunal in exercising its discretion as to awarding costs in favour of a successful Appellant who has been awarded damages (including aggravated damages) for sexual discrimination and harassment and victimisation?' "

1. In her affidavit of 15 August 2000, Maureen Daly has made the following observation concerning the Master's comment:

"I respectfully propose that a more accurate expression of the question in this case is:

'When the Victorian Civil and Administrative Tribunal has in a proceeding awarded aggravated damages to a complainant as compensation for loss damage or injury suffered in consequence of sexual discrimination, harassment and victimisation in contravention of the Equal Opportunity Acts 1984 and 1995 and the successful complainant has applied for an order that the respondent pay the complainant's costs of the proceedings, is the Tribunal required as a matter of law, when exercising its discretion as to costs, to take into account the matters that were relied on in support of the award of aggravated damages?' "

1. Expressed formerly, what is now said to be the question of law is: 

"In determining the question as to what, if any, order should be made in respect of the costs of the proceeding, was the Tribunal required to take into account the fact that it had made an award of aggravated damages in favour of the plaintiff and to take into account the facts upon which the award of aggravated damages was based or which justified the making of the award?"

1. In determining what, if any, orders a tribunal, or for that matter, a court, should make in respect of the costs of proceedings, a tribunal is required to take into account those factors in relation to the proceeding which have a bearing on the question as to who should pay the costs of the proceeding.  Like a court, in the absence of a statutory provision binding it in a particular way, a tribunal which has the power to award costs has an absolute and unfettered discretion as to whether it will or will not do so.  There is no rule of law which states that if a tribunal makes an award of aggravated damages against a party, it must make an award of costs against that party.  It may or it may not, depending on the circumstances of the particular case.  In that regard see Spencer v. Dowling (1997) 2 VR 127 at 145 and following.

1. In dealing with the application, I remind the parties of what I said in Department of Human Services v. Thwaites [1999] VSC 163.

1. It has long been the practice in this court and the High Court not to give reasons for granting leave to appeal in a particular case or for refusing leave to appeal.  The matter was adverted to by Fullagar, J. in Leighton Contractors Pty Ltd v. Kilpatrick Green Pty Ltd (1992) 2 VR 505. Although that was a case in which the Full Court was determining an appeal from the decision of a single Judge of the Court whereby the Judge had refused leave to a party to appeal from an interim award of an arbitrator, his Honour's observations are equally applicable to an appeal from the decision of a Master of the Court refusing a party leave to appeal from a decision of the Tribunal.

1. At p.514 Fullagar, J. said:

"I have spoken above of a yielding to temptation, and it is of course the natural and instinctive  wish of judges to give reasons for their decisions, so that their decisions may be seen to be the rational dictate of the law rather than the result of their own individual opinions or prejudices.  But in this particular field, paradoxically, the giving of reasons may be seen to be decidedly inimical, in the long run, to the doing of justice between the parties, and especially so in modern times when every utterance of a judge is likely to be reported, or misreported in some book or self-styled law report.  If reasons are given, they will be seized upon as the laying down and application of a principle, rather than merely the application, to all the circumstances of the individual case, of a wide judicial discretion.  After the first half dozen reported decisions the discretion will begin to take on limitations and boundaries, and in the end there will be no discretion but only a complicated set of hard and fast rules of law manufactured entirely by the judiciary, although with the assistance of the reporters and commentators.  Compare Mallet v. Mallet (1984) 156 CLR 605 at pp.608-609, per Gibbs CJ.

In Antaios Compania Naviera S.A. V. Salen Rederierna A.B. (The Antaios) [1985] 1 AC 191 Lord Diplock, with whom the other Law Lords agreed, re-affirmed the guidelines given in The Nema, but he also added that a judge should not give reasons for granting or refusing leave to appeal from the arbitrator to the court, and with this addendum I would respectfully agree for reasons adumbrated above, although the addendum itself cannot be viewed as binding.  I understand that it has been the general practice in Victoria not to give reasons for refusing leave to appeal, but if this is not the general practice then it ought to be: see e.g. Karenlee [1988] VR 614 at p.620. It is, I think, the more usual practice of our Full Court itself not to give reasons for refusing leave to appeal to this court, and in the past it certainly used to be the more general practice of the High Court not to give reasons for refusing special leave to appeal to the High Court."

1. Of course there may be cases in which it is appropriate for the Court to give reasons for granting leave to appeal, for example where a judge directs that the appeal be heard instanter and allowed.  In such cases it is appropriate for the Judge to state his reasons for granting leave as well as those for allowing the appeal.  See for example Beneys and Another v. Delafotis and Another (No.1) (1996) 2 VR 695.

1. That, of course, is not the situation in the present case.  All I am required to determine is whether it is arguable that in declining to make any order as to the costs of proceeding before the Tribunal, the Tribunal made an error of law in the matter.  If one confines one's attention to a consideration of the two sentences in the Tribunal's reasons, which read:

"The First Respondent objected, submitting that aggravated damages had already been awarded for those matters and they could not be relied upon again to assist the Complainant in respect of costs.  The Tribunal agrees." -

at first blush it might be said that in arriving at its decision the Tribunal failed to take into account some material consideration.  See House v. The King (1936) 55 CLR 499 at 505. But as the High Court pointed out in Minister for Immigration and Ethnic Affairs v. Wu Shan Liang and Others (1996) 195 CLR 259 at 271 and reference to Collector of Customs v. Pozzolanic (1993) 43 FLR 280:

"When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v. Pozzolanic.  In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review.  It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision maker.  The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.' 

These propositions are well settled.  They recognize the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned in the way in which the reasons are expressed."

1. In my opinion, if one has regard to the whole of the Tribunal's reasons for judgment, particularly the paragraph which comes next after the sentences to which I have just referred, it cannot be successfully contended that the Tribunal was wrong in the manner in which it exercised its discretion.  It must be remembered that the Tribunal had lived with this case through a 45 day hearing and it had the advantage of lengthy written submissions from the parties in relation to the question of costs.  The simple fact of the matter is that having considered everything put to it, it did not consider that it was fair to make any cost order.

1. In those circumstances, the appeal from the order of the Master must be dismissed with costs to be taxed and paid by the plaintiff.

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