Kempster v JGI Property Group Pty Limited
[2025] QIRC 277
•20 October 2025 13 October 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kempster v JGI Property Group Pty Limited & Ors [2025] QIRC 277 |
PARTIES: | Kempster, Jordan V JGI Property Group Limited ABN 82644210506 And Jamie Grigg And Taufiq Safi And Sohail Azizi And Georgiev, George |
CASE NO: | AD/2023/76 |
PROCEEDING: | Interlocutory application |
DELIVERED ON: HEARING DATE: | 20 October 2025 13 October 2025 |
MEMBER: HEARD AT: | Dwyer IC Brisbane |
ORDER: | 1. The Complainant is granted leave to discontinue the proceedings against the First and Fifth respondents; 2. The Complainant is granted leave to file an amended Statement of Facts and Contentions; and 3. The Fifth respondent must pay the Complainant’s costs in the amount of $1100.00 within 21 days of the date of this decision. |
| CATCHWORDS: | DISCRIMINATION LEGISLATION – GENERALLY – APLICATION FOR LEAVE TO WITHDRAW COMPLAINTS – where there is a referral of a complaint from the Queensland Human Rights Commission – where the Complainant alleged sexual harassment in the area of work – where the Fifth Respondent was a colleague of the Complainant – where the Fifth Respondent allegedly requested the Complainant send explicit photographs – where proceedings against First and Fifth respondents of no utility or cost prohibitive – where Complainant sought consent to withdraw complaints against First and Fifth respondents – where leave granted to withdraw complaints against the First and Fifth respondents COSTS – APPLICATION FOR COSTS – costs in proceedings under the Anti-Discrimination Act 1991 – offer to withdraw complaint – request for consent – consent conditional on numerous terms – some conditions accepted – consent subject to unreasonable conditions – Complainant compelled to file application seeking leave to withdraw complaint – unreasonable condition on consent communicated to Commission – unreasonable condition subsequently withdrawn after Complainant filed application – costs awarded |
| LEGISLATION: | Anti-Discrimination Act 1991 (Qld), s 119 Industrial Relations Act 2016 (Qld), Schedule 2 |
Reasons for Decision
(Edited from transcript)
Background
An understanding of these reasons will be enhanced by prefacing them with a brief summary of the relevant history of the proceedings.
The proceedings were previously the subject of consideration by Butler IC (as she then was) on a question of legal representation. That consideration resulted in reasons being published in or about June 2024.[1] Those published reasons were then apparently the subject of media reporting which included publication of some details of Ms Kempster’s sexual harassment complaint and the names and photographs of some of the respondents. The media article has apparently been an ongoing cause of consternation for Mr Georgiev.
[1] Kempster v JGI Property Group Pty Limited & Ors [2024] QIRC 15.
The matter was subsequently allocated to me and proceeded to hearing on 20 November 2024. At that time Ms Kempster had wholly different legal representation to the lawyers she now retains. On the third day of the hearing the matter was adjourned part heard. Suffice to say the circumstances of the adjournment were complicated.
On the third day of proceedings, I felt compelled to express my serious concerns about the competence of the representatives appearing for Ms Kempster and the First and Second respondents. Each had failed to lead or adduce critical evidence relevant to the questions of damages and vicarious liability. This failing persisted despite my express invitation to (then) Counsel for Ms Kempster on the second day of proceedings. At that time I invited Ms Kempster’s Counsel to recall her and have her give evidence relevant to the question of damages before the respondents' case commenced. My invitation was declined by Ms Kempster’s (then) Counsel.[2]
[2] T 2-20 to T 2-22.
By the third day of the proceedings on 22 November 2024, the paucity of evidence presented in respect of both damages and vicarious liability was such that I could not see evidence sufficient to base any findings on those matters. The absence of evidence was entirely a product of the persistent failure by each of the representatives to lead or adduce such evidence from witnesses, either in evidence in chief or cross examination.
So egregious were the failings in respect of the case against the Second respondent that I foreshadowed the possibility of a personal costs order against (then) Counsel for Ms Kempster.[3] The proceedings then halted suddenly at the request of Ms Kempster’s (then) Counsel. Following a short break, I was informed by (then) Counsel for Ms Kempster that the matter had settled and a deed was to be prepared. I therefore granted leave for an adjournment.
[3] T 3-5 to T 3-5.
Over the course of the following days, it transpired that the matter had not settled. Ms Kempster either misunderstood or was misinformed about the purpose of the adjournment, but in correspondence directly to the Registry she expressed a clear desire to proceed with her complaint. Ms Kempster parted ways with her representatives and subsequently sought new representation. As an aside, the question of the personal costs order against Ms Kempster’s former Counsel is still a live issue before me albeit it remains in abeyance until the overall question of costs is revisited in these proceedings.
The matter was listed for further mentions throughout early 2025 and, at a mention on 20 June 2025, the matter was listed for resumed hearing for five days commencing 13 October 2025. At that time, it was impressed on the parties that it was important that the matter proceed on the scheduled dates.
On 26 August 2025 my chambers received correspondence from the representative for the First and Second respondent, Mr Jamie Grigg. I was informed that:
· on 27 June 2025 Mr Grigg had been sentenced in the District Court of Queensland to a term of imprisonment for fraud related offences; and
· the First respondent was in the process of being deregistered, and its sole Director was in the process of entering into bankruptcy.
The matter was mentioned the next day. At the mention on 27 August 2025 the hearing dates were vacated in respect of the proceedings against the First, Second, Third and Fourth respondents. However, given the discrete nature of the complaint against Mr Georgiev, I proposed to the parties that we could retain the first scheduled hearing date on 13 October 2025 and, by segregating the proceedings against Mr Georgiev, we could at least dispense with that part of the proceedings without further delay.
The parties subsequently advised of their consent to this approach and the proceedings against Mr Georgiev remained listed for hearing on 13 October 2025.
At 9:55am on 9 October 2025, effectively 2 business days before the matter was due to proceed to hearing, Ms Kempster’s lawyers filed an application (‘the application’) seeking inter alia leave to withdraw the proceedings against the First and Fifth respondents. In an accompanying affidavit Ms Kempster’s lawyers explained the reasons for the application, namely, the looming deregistration of the First Respondent and the prohibitive cost of enforcing any judgment obtained against Mr Georgiev while he continued to reside overseas.
Shortly after receipt of this application I instructed correspondence to be sent to the parties indicating that if there was consent to the application, I would grant the order as requested and vacate the hearing date.
At 12:47pm on 9 October 2025 Mr Georgiev responded as follows:
My thanks for keeping me in the loop.
As Ms/Mrs Mackenzie is aware , I am prepared to be removed from the proceedings if my terms are met and we've been negotiating for two days.
What I've asked for is that Jordan withdraws her claim against me, bars further proceedings against me, signs the deed her client would sign when we won last time (amended to only apply to myself), and to help me take down the damaging news paper article she released against me.
Shes fine with all that bar the article because , she doesnt resile her allegations - so maybe we need to go to court till she does. She says she wasnt involved in the manufacture of it but if she calls her aunt it might prove to be a different story.
She also says she doesnt want to take it down because it pertains to the other applicants.
So i'm waiting for my lawyer to advise me before we decide whether we go to court or if there is a way we can all get what we want in this.
Please allow 48hrs for us me to do that.
If we go to trial , Ill be seeking compensation for 4 years of costs, suppression orders, and assistance in removal of the same article.
Thank you all,
George
(Emphasis added).
In light of this response from Mr Georgiev it was apparent that he consented to being ‘removed’ from the proceedings but that his consent was conditional upon inter alia Ms Kempster ‘helping him take down the damaging newspaper article’.[4]
[4] It must be assumed that the newspaper article referred to is the media report on the decision of Kempster v JGI Property Group Pty Limited & Ors [2024] QIRC 151 referred to above.
In the circumstances, at 3:38pm on 9 October 2025 I instructed the Registry to send the following email to the parties, including Mr Georgiev:
Dear Parties,
In light of Mr Georgiev’s attitude to the application, the listing for Monday will be maintained.
Please be advised that if any party is responsible for unreasonably prolonging the discontinuance of the proceeding, they will be liable to a costs order …
(Emphasis added)
At 4:29pm the following day (Friday 10 October 2025) Mr Georgiev forwarded the following email to the Registry:
To all parties concerned,
Upon review I am now prepared to accept the complainant's offer to discontinue action against me and void the hearing on Monday 13 October 2025 on the provisor the following terms are met and agreed on.1. Immediate withdrawal of all claims against me
2. Bar to further proceedings
3. The deed, amended to be relevant between her and I is to be signed.
The complainant's legal team has already advised they are happy to proceed and were kind enough to amend the deed as described above.
It serves to say she withdraws her claims against me and bars further proceedings against me.
Once I receive a signed copy of it I will return one with my signature on it, so please do this as soon as possible before Monday.
I thank the QIRC for their patience and understanding in this matter.
George
The effect of this email was to confirm that the parties had reached an agreement with respect to Mr Georgiev’s consent to the application. Notably, the terms of his consent no longer included any requirement for Ms Kempster to assist or otherwise act in relation to the ‘removal’ of the newspaper article.
It is relevant to note here that Mr Georgiev’s email of 10 October 2025 was received by the Commission and the parties at 4:29pm. It was not brought to my attention until Monday 13 October 2025, the morning of the scheduled hearing. It is further relevant to note that, at the hearing of this application on 13 October 2025, it was confirmed that lawyers for Ms Kempster saw the email on or about 4:30pm on Friday 10 October 2025.
The email sent by Mr Georgiev on 10 October 2025 plainly confirms his consent to the withdrawal of the complaint, subject to the signing of a deed in terms that were already agreed between the parties. Further, the email agrees to vacating the scheduled hearing.
On the morning of 13 October 2025, upon seeing Mr Geogiev’s most recent email, I instructed the Registry to forward the following email to the parties:
Dear Parties,
Please be advised that the Hearing is to be vacated.
Leave to withdraw against the First and Fifth Respondents will be granted upon completion of the settlement between the Applicant and the Fifth Respondent.
The Commissioner requests to be advised once the deed has been fully executed, and orders will be made discontinuing the proceedings regarding the First and Fifth Respondents.
The email from the Registry was sent at 9:22am on 13 October 2025, approximately 40 minutes before proceedings were due to commence. It was not apparent to me at that stage whether the lawyers for Ms Kempster had received any of the relevant correspondence of the preceding days. It therefore came as no surprise that, shortly after 10am on 13 October 2025, I was informed that Ms Kempster’s legal representatives (including Counsel) were present at the Registry ‘seeking to be heard’.
After resolving some confusion and establishing that Ms Kempster’s lawyers had in fact seen all of the relevant correspondence (including the email vacating the proceedings), it then became apparent that notwithstanding the resolution of the substantive issue in the application, the lawyers for Ms Kempster were desirous of being heard on another issue. Consequently, I arranged for the vacated proceedings to be relisted and for relevant parties (including Mr Georgiev) to participate.
Upon opening of the proceedings, I was advised that, pursuant to a viva voce application, Ms Kempster’s legal representatives sought an order for costs. The costs were sought in relation to the preparation of the application, and costs for attendance of Counsel on 13 October 2025.
Disposition of the substantive application
Having heard the parties in relation to that issue and, in particular, seeing the position of the parties reflected in the various emails that have been exchanged over the previous seven days, I am prepared to make some of the orders sought as they are set out at Part 5 of the application. Namely, I intend to order that the proceedings in relation to the First and Fifth respondents be discontinued in accordance with that application.
Additionally, I intend to grant leave to Ms Kempster to file an amended Statement of Facts and Contentions as per the draft accompanying the application on 9 October 2025.
For completeness I note that the email from Mr Georgiev that was received by the parties and the Registry at 4:29pm on Friday 10 October 2025 plainly reflects his consent to the application on terms already agreed by Ms Kempster. The effect of his email is that it confirms resolution of any dispute about the application. I therefore intend to make those orders accordingly.
There remains a question of costs sought by Ms Kempster.
Power to award costs
The power conferred on the Commission to award costs in proceedings of this type is found at Schedule 2 of the Industrial Relations Act 2016 (Qld) (‘the Schedule’). The Schedule relevantly provides:
2 Each party usually bears own costs
Other than as provided under this schedule, each party to the proceeding must bear the party’s own costs for the proceeding.
…
4 Costs against party in interests of justice
(1)The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.
(2)In deciding whether to award costs under subsection (1) the commission may have regard to the following—
(a) whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;
(b) the nature and complexity of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the commission considers relevant.
(Emphasis added)
The discretion conferred by the Schedule is broad. What is in the interest of justice will invariably be determined by the unique factors of the matter under consideration. The matters informing the discretion set out at Schedule 2, part 4(2)(f) are unfettered.
Given the broad discretion conferred, I consider the Schedule plainly includes a consideration of the overall fairness of imposing a costs order having regard to any relevant conduct of the parties that may have unnecessarily or unreasonably caused another party to incur costs.
Costs application
The costs identified by Counsel for Ms Kempster are in respect of the preparation of the application that was filed on 9 October 2025 and the costs of attendance at the Commission on 13 October 2025. The total amount sought exceeds $5000.00. I am informed that the costs of preparing the application represent approximately $1100.00 of this amount. I have determined in this matter to award partial costs.
Consideration
I do not intend to restate the detailed discussion and submission on costs offered by the parties at the impromptu costs hearing on 13 October 2025. The transcript of the proceedings of this matter outlines in detail the various submissions made and matters that I have considered in reaching my conclusion in respect of the question of costs. I will instead summarise the relevant considerations.
Part of my consideration necessarily includes the merit of the complaint against Mr Georgiev although I hasten to add, I make no determination about that complaint given it has been withdrawn at Ms Kempster’s request. In short, the substantive proceedings that are now the subject of the discontinuance are a complaint under the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’) involving sexual harassment. There are multiple respondents in the broader proceedings. Mr Georgiev is the fifth respondent in those proceedings.
The allegations against Mr Georgiev are discrete from the allegations against the remaining respondents in that they involve a separate course of conduct on dates occurring after the other alleged events. The nature of the complaint is confined to comments that appear in electronic messages exchanged between him and Ms Kempster.[5] Two of the messages in particular constitute the allegation of sexual harassment.
[5] The message chain was admitted into evidence during the hearing in November 2024 and marked as Exhibit 1 in those proceedings.
Having regard to the message chain it is noted that those comments occur at the end of a lengthy and otherwise inoffensive ‘chat’ between Mr Georgiev and Ms Kempster. While the bulk of the communication is replete with subtly flirtatious comments on the part of Mr Georgiev, in the circumstances of this matter the bulk of the messages are not of a nature that it would meet the definition of sexual harassment contained at s 119 of the AD Act in my view.
The offending comments recorded in the message chain include an unsolicited and rather out of context request by Mr Georgiev to Ms Kempster to (in the words of the message) “send nudes”. Additionally, another message is in the form of an image of two Swiss balls (an exercise device) sitting side by side. Relevantly they are coloured blue. The image is plainly a colloquial reference to testicular pain arising from prolonged male sexual arousal, sometimes called ‘blue balls’.
In his submissions on costs Mr Georgiev alluded to a broader context to these comments that (he says) reduces the nature of their offensiveness. He alludes to inter alia Ms Kempster’s conduct on the evening upon which it is alleged the Third and Fourth respondents sexually harassed her.
While there might be antecedent evidence in relation to Mr Georgiev’s previous dealings with Ms Kempster, in the context of the lengthy message ‘chat’ that makes up the complaint against him, the offending comments are objectively the type of comments that meet the definition of sexual harassment in my view. Just because Ms Kempster may have behaved in a certain way towards or around Mr Georgiev at an earlier time, days or weeks before, this cannot reasonably be construed as an invitation to randomly insert unsolicited comments of a sexual nature into their chat.
In any event, as I have noted already, the substantive allegations of sexual harassment do not need to be considered or resolved at this point given the indication of the complainant of a desire to withdraw the complaint. The merit of the case against Mr Georgiev is only raised in these reasons because I consider it is relevant to the reasonableness of his response to the request to discontinue.
In considering the question of costs it is helpful to work backwards from the agreement to withdraw which, pursuant to Mr Georgiev’s email, was reached at or about 4:29pm on Friday 10 October 2025. The parties arrived at this agreement following discussions initiated by lawyers for Ms Kempster. Those discussions began on 2 October 2025, 11 days prior to the scheduled hearing.
On 2 October 2025, the lawyers for Ms Kempster wrote to Mr Georgiev proposing the withdrawal of the complaint. At the hearing on costs, I received copies of emails from Counsel for Ms Kempster setting out the correspondence between the parties that they say is the totality of the correspondence between them from 2 October until 9 October.[6]
[6] The emails between 2 and 9 October 2025 were admitted in these costs proceedings and marked as Exhibit 1. Mr Georgiev asserted there were more and later supplied additional emails between him and a lawyer, though these were not relevant.
The correspondence sent on 2 October 2025 is in the form of a two-page letter to Mr Georgiev which comprehensively sets out the history of the proceedings and goes on to explain, in very clear and plain terms, that Ms Kempster is desirous of withdrawing the complaint against Mr Georgiev and ending that part of the proceedings.
The correspondence plainly explains that it is not that Ms Kempster resiles from the complaint but instead, that the cost of continuing those proceedings is prohibitive, particularly in light of the fact that the claim against Mr Georgiev is of relatively small scope, and that there are added complications with the potential enforcement of any orders for damages made given that Mr Georgiev resides overseas.
Mr Georgiev’s first response to the proposal of Ms Kempster’s lawyers made on 2 October 2025 was sent by reply email on 2 October 2025. He sent a further email on 7 October 2025. Both emails expressed conditional consent to the withdrawal of the complaint on the proviso that his ‘his terms were met’. The emails set out the ‘terms’ sought by Mr Georgiev in return for his consent to the withdrawal of the complaint. Those ‘terms’ include that Ms Kempster:
· release him from any future claims;
· sign a deed to that effect;
· issue a public apology for the allegation that found its way into the media article that appeared some years ago as a consequence of a previous interlocutory decision in the broader proceedings; and
· pay an amount of $750, representing legal fees that Mr Georgiev foreshadowed he might incur through his lawyers to amend a previous deed that had been the subject of discussion.
In light of that response from Mr Georgiev, and with the hearing of these proceedings looming, the lawyers for Ms Kempster, in return correspondence, confirmed an agreement to provide the appropriate release in respect of any future claims. They further provided consent in respect to the matters in agreement being reduced to a deed.
Understandably the lawyers for Ms Kempster rejected the other terms proposed by Mr Georgiev. In particular, they indicated to Mr Georgiev that the media article which aggrieved him was not an article over which Ms Kempster had any authorship or control.
Also in their response to Mr Georgiev, the lawyers for Ms Kempster (no doubt mindful of the approaching hearing date) foreshadowed the possibility of a need to file a formal application requesting leave to discontinue the proceedings against him if his consent could not be obtained.
By 9 October 2025, Mr Georgiev had failed to resile from his other requests and to provide any clear consent for Ms Kempster’s lawyers in respect of their proposed terms of withdrawal. As a consequence, the lawyers for Ms Kempster filed the application in these proceedings, consistent with what they had previously indicated to Mr Georgiev. The application was filed at 9:55am on 9 October 2025.
At 12.45pm on 9 October 2025 Mr Georgiev responded to the application in an email to all parties and the Commission. In that email he noted his willingness to consent to the withdrawal of the proceedings, but (relevantly) reiterated his condition of consent namely, that Ms Kempster agree to assist in the removal of the media article.
Having regard to the application and the response from Mr Georgiev on 9 October 2025, I instructed the Registry to communicate with the parties that in the circumstances where it was plain that no agreement had been reached, the substantive matter (namely the hearing of the proceedings against Mr Georgiev) continued to be listed for hearing on 13 October 2025. Naturally I anticipated that the lawyers for Ms Kempster would use that listing to press the application. That email is extracted earlier in these reasons.
Importantly, I ensured that the email sent to the parties included a caution that any unreasonable conduct resulting in the matter having to proceed to hearing would be liable to attract consideration in respect of costs.
The following day, on Friday 10 October 2025 at 4.29pm, Mr Georgiev forwarded an email to the Registry and the other parties. Without expressly stating it, the plain tenor of the email demonstrated his agreement to concede his previous demand regarding the media article and his agreement to sign the approved deed and consent to the discontinuance.
Counsel for Ms Kempster confirmed at the costs hearing on 13 October 2025 that Mr Georgiev’s email came to the attention of lawyers for Ms Kempster at or about 4.30pm on Friday 10 October 2025. It did not come to the attention of the Commission until the morning of the 13 October 2025, being the first business day after it was received. Given that it was received by the Registry at 4.30pm on a Friday afternoon, that is not an unusual delay.
On the morning of 13 October 2025, it appeared to the Commission from the emails that the matter had settled. The parties were advised via email that the listing would be vacated and the matter adjourned pending formal confirmation of the terms of settlement having been reached between the parties.
For the reasons that I have outlined already and those that I discussed with the parties during these proceedings, I consider that the demands made by Mr Georgiev between the 2 and the 9 October 2025 were patently unreasonable.
I consider that, as a party who was confronted with very compelling evidence of sexual harassment, Mr Georgiev failed to appreciate the opportunity that the offer to withdraw had afforded him. It was a clear ending to proceedings that he says have caused him significant loss and grief over the last four years. Instead of taking this opportunity to exit the matter, he has been unable to resist a further opportunity to make demands and effectively threaten Ms Kempster with the spectre of all the costs and other undesirable aspects of proceeding to a hearing.
Mr Georgiev plainly mistook Ms Kempster’s courtesy for capitulation when the request for consent to withdraw was made. This no doubt caused him to mistakenly consider he had some bargaining power which he then promptly began to abuse by making unreasonable demands.
It matters not that these demands by Mr Georgiev were fundamentally misconceived and incapable of preventing the withdrawal of the complaint. It is the fact that, because Mr Georgiev persisted with his recalcitrant conduct, Ms Kempster was put to the cost of having to file the application on 9 October 2025 to formally seek permission to withdraw. That is the unreasonableness that I consider evokes the discretion to impose a costs order on him.
In those circumstances, I consider it is in the interests of justice that Mr Georgiev pay costs in respect of the preparation of that application. I am informed by Counsel for Ms Kempster that the costs in that regard are approximately $1100.00. I consider that to be a reasonable amount in the circumstances having regard to the nature and complexity of the application.
I am not prepared to allow the costs sought in respect of Counsel’s attendance at the Commission on 13 October 2025.
Notwithstanding that I appreciate the difficult position Ms Kempster’s lawyers have been put in given the last-minute nature of the resolution of the dispute, they have confirmed that they were aware of the resolution of the application from approximately 4.30pm on the Friday before the scheduled hearing. In those circumstances there is no reason that the matter could not have been adjourned pending, firstly, a finalisation of the agreement regarding the substantive application and, secondly, further discussion in respect of costs.
Having become aware that the matter had settled, there was no imperative for the lawyers for Ms Kempster to attend at the Commission on 13 October 2025 as they did. While I note the matter was still listed as at the start of the day on Monday 13 October 2025, the lawyers for Ms Kempster could have emailed confirmation of the resolution of the application at any time before 10am that day and requested adjournment. They surely cannot have expected the ire of the Commission from this approach when the correspondence before the Commission demonstrated the last-minute adjournment was not a product of dilatory conduct on their part. Moreover, by about 9:30am that morning they had the advantage of the email from the Commission noting settlement and vacating the listing.
While I appreciate that the question of the costs for the application remained a live issue, it does not appear to have been an issue previously raised with Mr Georgiev in any direct fashion prior to 13 October 2025.[7] It was more a feature of convenience that the question of costs was dealt with on 13 October 2025 because the lawyers for Ms Kempster attended notwithstanding there was no need for them to do so, and Mr Georgiev was available.
[7] The first of the communications on 2 October 2025 carries the heading ‘without prejudice save as to costs’ but the question of costs is otherwise not overtly raised with Mr Georgiev who is self-represented.
Had it been the case that, following the signing of the deed and finalisation of the substantive application that costs could not be agreed, then the matter could have been the subject of a further application (the cost of which might have been recoverable also).
In the circumstances, having regard to Part 2 of the Schedule, I am not prepared to make a costs order for the costs of Counsel appearing on 13 October 2025.
Postscript
Following the pronouncement of my orders on costs at the end of proceedings Mr Georgiev (who was in attendance by telephone) asked if ‘we were going to hearing’. Given an order had been made and the matter adjourned, it was not appropriate to engage further with Mr Georgiev. Subsequently, Mr Georgiev sent a lengthy email to the Commission seeking inter alia to enliven arguments about the substance of the complaint made against him by Ms Kempster.
Throughout the recent dealings on this matter, it would appear to me that Mr Georgiev has (and continues to) misunderstood the extent to which he could legitimately resist the proposed application to withdraw. To be clear: Ms Kempster could not ever be compelled to proceed to hearing on her complaint. Whilst circumstances differ from matter to matter, where a complainant in such proceedings seeks to withdraw or discontinue a complaint, subject to arguments about costs, they are always at liberty to do so. Mr Georgiev, being unrepresented, had no basis to seek costs and therefore no basis to place conditions on Ms Kempster’s withdrawal of the complaint.
Ms Kempster was not obliged to agree to any conditions sought by Mr Georgiev. Notwithstanding this, some of his conditions were reasonable i.e. the preparation of a deed including a release from any further action. Being reasonable, these conditions were immediately accepted by Ms Kempster. But even these accommodations were not owed by Ms Kempster to Mr Georgiev.
In all of the Commissions dealings with Mr Georgiev he has been at pains to portray himself as the victim of Ms Kempster. He has been granted significant indulgences with respect to telephone attendances, and even the timing of listings for mentions are adjusted to coincide with convenient timing for the European time zone in which he resides. While Mr Georgiev has been generally respectful in his correspondence with the Commission, he has occasionally used subtle but disrespectful language in some communications when referring to Ms Kempster or her lawyer, Ms Wakefield.
While I can appreciate that Mr Georgiev feels frustrated to have been embroiled in these proceedings, a significant part of that frustration is no doubt attributable to what I have observed to be his continued failure to attain insight into how his conduct was a clear contravention of the AD Act. In those circumstances his frustration is very much misplaced.
To whatever extent Mr Georgiev continues to feel aggrieved by Ms Kempster’s complaint or the order for costs, he would do well to earnestly reflect on the fact that he may well have been liable for compensation for general damages in the order of many more thousands of dollars had Ms Kempster’s complaint proceeded to hearing.
Orders
In all of the circumstances I make the following Orders:
1. The Complainant is granted leave to discontinue the proceedings against the First and Fifth respondent;
2. The Complainant is granted leave to file an amended Statement of Facts and Contentions; and
3. The Fifth respondent to pay the Complainant’s costs in the amount of $1100.00 within 21 days of the date of this decision.
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