MENEGOLA and HEALTH AND DISABILITY SERVICES COMPLAINTS OFFICE
[2018] WASAT 23 (S)
•15 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: MENEGOLA and HEALTH AND DISABILITY SERVICES COMPLAINTS OFFICE [2018] WASAT 23 (S)
MEMBER: DEPUTY PRESIDENT, JUDGE SHARP
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED: 15 AUGUST 2018
FILE NO/S: EOA 20 of 2017
BETWEEN: SHIRLEY MENEGOLA
Applicant
AND
HEALTH AND DISABILITY SERVICES COMPLAINTS OFFICE
Respondent
Catchwords:
Discrimination on grounds of impairment - Withdrawal of authority to proceed with enquiry - Costs
Legislation:
Equal Opportunity Act 1984 (WA), s 90(2), s 93(1), s 107(3)(a)
Health and Disability Services (Complaints) Act 1995 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 46(1), s 47(2), s 60(2), s87, s 87(2), s 87(6)
Result:
Application for costs dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Rosales-Castaneda |
| Respondent | : | Ms S Keighery |
Solicitors:
| Applicant | : | Equal Opportunity Commission |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Banno v Commonwealth of Australia (1993) 45 FCR 32
Byrne v Sefton Health Authority [2002] 1 WLR 775
Chew and Director General of the Department of Education and Training [2006] WASAT 248
De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544
Menegola and Health and Disability Services Complaints Office [2018] WASAT 23
Summerville and Department of Education & Ors [2006] WASAT 174
Summerville and Department of Education and Training [2006] WASAT 368 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 6 January 2017, the Equal Opportunity Commissioner (Commissioner) received a complaint lodged under the Equal Opportunity Act 1984 (WA) (EO Act) from the applicant. The applicant's complaint was an allegation that the respondent, a statutory authority under the Health and Disability Services (Complaints) Act 1995 (WA) (HDSC Act) unlawfully discriminated against the applicant on the ground of impairment in the provision of a service.
On 11 July 2017, the Commissioner received from the applicant two further complaints of discrimination against the respondent. These arose from two occasions when the applicant spoke to officers of the respondent by telephone on 2 May 2017 and 26 May 2017 respectively about lodging a complaint under the HDSC Act with the respondent.
The Commissioner accepted those two complaints as a single complaint with two incidents.
The Commissioner could not resolve the complaints and, on 29 August 2017, referred the applicant's complaints of unlawful discrimination to the Tribunal under s 93(1) of the EO Act.
At the first directions hearing before the Tribunal on 27 September 2017, the Tribunal ordered that the complaints on 6 January 2017 and on 11 July 2017 be consolidated into one proceeding. The Tribunal also referred the consolidated complaints to mediation. This was ordered over objection from the respondent, on the basis that in the view of the respondent the applicant's case was untenable in law and fact. The mediation conference took place on 18 October 2017.
The mediation was terminated and a further directions hearing was held on 30 October 2017.
At that second directions hearing, the respondent made an application under s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the proceeding to be struck out on the basis that it is misconceived or lacking in substance (strike out application).
At the next directions hearing on 8 November 2017, the parties agreed that it was necessary for a statement of facts to be agreed for the purpose of the strike out application. Accordingly the Tribunal made orders that a statement of agreed facts should be filed, following which the parties would file and serve submissions on the strike out application. The Tribunal decided that the strike out application would be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
A document entitled 'Statement Of Agreed Facts For The Purposes Of Strike Out Application', signed on behalf of both the applicant and the respondent, was filed with the Tribunal on 12 December 2017. It is unnecessary to set out those facts, other than to say that paragraph 12 of the statement of agreed facts reads as follows:
On 6 January 2017, the Applicant lodged a complaint with the Equal Opportunity Commission alleging the Respondent's requirement that her complaint be lodged in writing is unlawfully discriminatory on the ground of impairment.
When reviewing the applicant's written submissions opposing the strike out application filed with the Tribunal on 15 December 2017, the Tribunal noted that the applicant had submitted that paragraph 1 of the respondent's submissions on the strike out application, which is in exactly the same terms as paragraph 12 of the statement of agreed facts, was not correct. The applicant 'clarified' in her submissions that her complaint was not that the respondent's requirement that her complaint under the HDSC Act be lodged in writing is unlawfully discriminatory on the ground of impairment. Instead, the applicant submitted that the complaint concerned the respondent's procedures for making a complaint under the HDSC Act and '[s]pecifically, the applicant complains about the respondent's refusal to receive a complaint by telephone …'; applicant's submissions opposing strike out application paras 21 and 22.
The applicant went on in her submissions to say that the applicant had requested assistance in scribing her complaint over the telephone as her impairments prevented her from writing the complaint herself and that the respondent refused and insisted on either referring her to a third party or that she write her complaint herself.
The Tribunal considered the strike out application and dismissed it. The Tribunal published its decision on 12 April 2018; Menegola and Health and Disability Services Complaints Office [2018] WASAT 23. The basis for dismissing the application was that there was an important matter of fact to be determined, namely the identification of the complaint which was lodged with the Commissioner and then subsequently referred to the Tribunal.
The matter was then programmed to a final hearing to be held at the Tribunal on 22 May 2018.
However, on 16 May 2018, by an email sent to the Tribunal by the applicant's legal representative, the Tribunal was informed that the applicant was very unwell and did not consider that she was fit to proceed to the final hearing of the matter. The Tribunal vacated the date of the final hearing and instead ordered the parties to attend a further directions hearing on the same date, namely 22 May 2018. At that hearing, the applicant through her legal representative confirmed that she no longer wished the inquiry to proceed and accordingly the Tribunal ordered, pursuant to s 107(3)(a) of the EO Act, that the matter is discontinued and the application is dismissed.
The respondent then made an application to the Tribunal for an order for payment of the respondent's costs. The respondent filed submissions on that application on 31 May 2018, with the applicant filing responsive submissions on 8 June 2018.
The Tribunal ordered that the respondent's application be determined on the basis of documents without a hearing.
SAT Act in relation to costs
87.Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to
(a)whether the party (in bringing or conducting the proceeding before the decision maker in which the decision under review was made) genuinely attempted to enable and assist the decision maker to make a decision on its merits;
(b)whether the party (being the decision maker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6)The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.
Considerations
An effect of s 87 of the SAT Act is that the Tribunal must exercise the discretion which it confers taking into account all the circumstances of the particular case, but starting from the presumption that no order for costs will be made; Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) at [9].
The Tribunal has in the past in relation to proceedings under the EO Act, taken the view that the Tribunal generally should not make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious or the proceedings in some other way constitute an abuse of process; Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85]. However, I accept the view expressed by Barker J in Summerville and Department of Education and Training [2006] WASAT 368 (S) at [26] to [27] that it is not appropriate for the Tribunal to attempt finally to delineate the particular circumstances in which the discretion to award costs will be exercised.
The aim of a costs order is not to punish the person against whom the order is made, but to reimburse or compensate the party in whose favour it is made. The question is whether it is fair and reasonable to make such an order; Questdale at [51].
Every party to proceedings before the Tribunal is taken to be cognisant of the Tribunal's objectives in s 9 of the SAT Act. Parties must try to assist with the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible and in a way which minimises the costs to the parties; Questdale at [54].
Parties should have the opportunity to access the justice system in order to present an arguable and wellorganised case. However, this should be distinguished from the situation where a party pursues a vexatious, dishonest or grossly exaggerated claim or presents their case in such a way as to impose unnecessary burdens on courts or Tribunals; Questdale at [56], quoting Banno v Commonwealth of Australia (1993) 45 FCR 32 at 51.
In Questdale at [64]-[65], Murphy JA held that the Tribunal may order costs under s 87(2) of the SAT Act against an applicant who withdraws its proceedings, although withdrawal alone will not result in a costs order.
Costs claimed
The respondent considers that the applicant should pay the respondent's costs and seeks an order under s 87(2) of the SAT Act for the payment by the applicant of its costs from 13 March 2018 to 22 May 2018 fixed at $4,000.
Alternatively, pursuant to s 87(6) of the SAT Act, the respondent submits that the applicant's representative rather than the applicant herself should pay those costs.
Respondent's submissions
The respondent says that the applicant's conduct of notifying the Tribunal that she did not wish to proceed and therefore, in effect, withdrawing her application impairs the attainment of the Tribunal's objectives in s 9 of the SAT Act. The respondent says that the applicant and her representative have conducted the proceedings in such a way as to unnecessarily prolong the matter in the Tribunal and cause unnecessary expense to the respondent in such an unreasonable and inappropriate way that the Tribunal should make an order as to costs.
The respondent submits that the conduct of the applicant's representative in withdrawing his agreement to what the respondent considered to be a statement of facts agreed between the parties and reframing the complaint at such at late state in the proceedings was unreasonable and unfair. The respondent says that this conduct 'unnecessarily pushed the matter to hearing and impaired the attainment of the Tribunal's objectives'; respondent's submissions on costs para 20.
The respondent says that the applicant's re-characterisation of the complaint as a complaint regarding refusal to provide scribing assistance was first made on 15 December 2017. The respondent submits that the 'reformulation at this stage of the proceedings … was invented to circumvent a decision against the applicant'; respondent's submissions on costs para 22. The respondent points out that the respondent's characterisation of the complaint was not mentioned by the applicant at any of the directions hearings, the mediation or in the discussion of the statement of agreed facts.
The respondent says that complex legal submissions for the strike out application were drafted on the basis of the agreed facts. The insistence of the applicant's representative on running what the respondent considers to be a new argument forced the respondent into a final hearing. The respondent says the withdrawal from the agreed facts cost the respondent time and expense and was the only reason the matter was listed for a full hearing.
The respondent submits that the discontinuance is akin to a withdrawal under the originating legislation and occurred in circumstances of the kind referred to in Questdale. In the respondent's opinion, the discontinuance was:
(a)after the applicant insisted on going to hearing;
(b)late in the proceeding;
(c)after a withdrawal from the agreed facts at the hearing of the strike out application;
(d)after the respondent had filed its statement of issues, facts and contentions, relevant documents and witness statement;
(e)after the respondent had completed all of its preparation for hearing, including proofing its witness;
(f)after continued assertions by the respondent that the matter had no merit;
(g)after a number of opportunities to discontinue the matter without putting the respondent to unnecessary expense; and
(h)after warning that a full hearing would cause stress and that all issues would be contested at the hearing
such that it is fair and reasonable to orders costs in favour of the respondent.
The respondent points out that its statement of issues, facts and contentions was 17 pages, it filed 42 pages of documents and a five page witness statement.
The respondent points out that at the directions hearing on 18 March 2018, counsel specifically submitted that a full hearing would be stressful for the applicant and that it would pursue all issues and that all matters would be raised at a full hearing including the applicant's impairment. The respondent says that the applicant acknowledged these warnings.
The respondent says that the applicant filed irrelevant medical information which added to the respondent's costs in the form of significant time and expense in analysing it.
Disposition
In this case, I have decided that the Tribunal's discretion to award costs either under s 87(2) or s 87(6) of the SAT Act should not be exercised in favour of the respondent.
I will deal first with the application by the respondent that the applicant herself should bear the respondent's costs.
I accept that the applicant should not have agreed to the statement of facts when it contained a fact about which she did not agree. However, the statement was filed on 12 December 2017 and it was only a few days later, 15 December 2017, that the applicant filed her responsive submissions on the strike out application which included the statement that the respondent's submissions (and, by implication, the statement of agreed facts) incorrectly described the complaint which the applicant had made to the Commissioner.
Is it unclear whether this situation arose due to some error or oversight on the part of the applicant's representative (ts 7, 13 March 2018), or just simply through the applicant attempting to 'clarify' what the applicant saw as a 'general reflection of the nature of her complaint' (applicant's submissions on costs dated 8 June 2018 para 22).
The matter was fully discussed with the parties at a directions hearing on 13 March 2018. I informed that parties that in light of these events, the strike out application was dismissed. I did not encourage the respondent to file a further application to strike out the matter on the ground of jurisdiction, instead suggesting that the matter is listed for a final hearing, with the question of jurisdiction being dealt with first as a preliminary issue; ts 10, 13 March 2018.
It cannot be said that the applicant's withdrawal from the statement of agreed facts was the only reason the matter was listed for a full hearing. Nor do I accept that the applicant's partial withdrawal from the statement of agreed facts should in itself give rise to an award of costs against her. The strike out application was brought by the respondent, as the respondent is entitled to do, and it was unsuccessful.
Importantly, however, the application exposed an issue of the Tribunal's jurisdiction to hold an inquiry into the complaint. It is clear from what Barker J said in Summerville and Department of Education & Ors [2006] WASAT 174 at [11], (in the context of a referral under s 90(2) of the EO Act) that the 'complaint' referred to the Tribunal by the Commissioner under s 93(1) of the EO Act must be the same complaint as that made by the complainant to the Commissioner. It is clear that the Tribunal only has jurisdiction to deal with the issues raised in the complaint investigated by the Commissioner and no others.
Accordingly, the matter may have been disposed of as a preliminary issue of jurisdiction, which in turn may have avoided the costs of a full hearing on the complaint itself.
In any event, as ordered by the Tribunal, the parties filed their respective submissions and documents on which they intended to rely. As mentioned earlier, the matter was listed for a final hearing on 22 May 2018, but the applicant, through her legal representative, wrote to the Tribunal on 16 May 2018 and in that letter, the Tribunal was informed that:
1.the applicant has medical appointments on 18 May 2018, 21 May 2018 and surgery booked on 23 May 2018;
2.the stress involved in preparing for the final hearing had exacerbated her symptoms and she is unable to proceed with the matter; and
3.even if the hearing was adjourned, the exacerbation of her symptoms is such that she believes she will be unable to proceed with the complaint on a later date.
The applicant sought leave to withdraw her application pursuant to s 46(1) of the SAT Act.
The applicant was reminded that leave to withdraw her application is not required and that under s 107(3)(a) of the EO Act the Tribunal must discontinue an enquiry into a complaint referred to it if the complainant notifies the Tribunal that it does not wish that inquiry to be held or to continue. The applicant duly informed the Tribunal, through her representative, that she did not wish the inquiry to continue and the Tribunal made an order that the proceeding was dismissed.
In my view, the applicant's 'withdrawal' from the proceeding was properly made. While the respondent was put to the cost of preparing to defend the allegations made against it, and the discontinuance was made late in the proceeding I can see no reason to reach the conclusion that the applicant's conduct should result in the Tribunal exercising its discretion under s 87 of the SAT Act. It is not the Tribunal's view that the applicant was vexatious or pursued a dishonest or grossly exaggerated claim in the absence of any supporting evidence. The applicant, quite simply, felt unable to procced, a position which is supported by medical evidence.
Turning next to the issue of whether the applicant's representative rather than the applicant herself should pay the respondent's costs as provided under s 87(6) of the SAT Act, there is simply nothing to support such a claim. The respondent has not identified any case where such an application to the Tribunal has been successful and it is therefore difficult to know under what circumstances such an application might succeed. However, in the British case of Byrne v Sefton Health Authority [2002] 1 WLR 775 at [39], Gibson LJ emphasises that:
An order for the payment of costs by a non-party is always exceptional and … every judge to whom an application is made for such an order must treat that application with considerable caution.
Further, French J (as he then was) outlined in De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 547 to 548 that care and discretion must be exercised and an order for costs should be made against a solicitor 'only in clear cases'.
I consider that in the circumstances of this matter, such a claim could only be successful if it was demonstrated that the applicant's representative, rather than the applicant herself, had behaved improperly and there is nothing before the Tribunal to indicate that he did so.
Order
1.The respondent's application for an order that the applicant or the applicant's representative pay the respondent's costs is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
15 AUGUST 2018
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