Oehlman v Community Services Australia Pty Ltd
[2012] QCAT 174
•4 January 2012
| CITATION: | Oehlman v Community Services Australia Pty Ltd and Anor [2012] QCAT 174 |
| PARTIES: | Deborah Oehlman |
| v | |
| Community Services Australia Pty Ltd Catherine Banks |
| APPLICATION NUMBER: | ADL093-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 4 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That there be no order for costs in the proceeding. |
| CATCHWORDS : | Procedure – costs – discretion to award costs – whether s 100 should be displaced – when applicant unsuccessful in anti-discrimination matter – when applicant rejected offer to settle Queensland Civil and Administrative Tribunal Act2009, ss 100, 102(3), 105 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr K Watson of Counsel, instructed by Susan Moriarty & Associates |
| RESPONDENT: | Mr A Hervert of Counsel, instructed by Hall Payne Lawyers |
REASONS FOR DECISION
Background
On 8 November 2011 the Tribunal dismissed complaints of alleged sexuality discrimination in employment against the Respondents, Community Services Australia Pty Ltd and Catherine Banks.
The Tribunal also ordered that, in the event the Respondents seek costs, they must file an application within 21 days with accompanying submissions to the Tribunal and send a copy to the Complainant, Ms Oehlman, no later than 21 days after the date of the order. Ms Oehlman was to file submissions in response in the Tribunal and send a copy to the Respondents within 14 days of the filing date of the application.
The Tribunal ordered that a determination of costs will be made on the basis of the written documentation without an oral hearing.
The Respondents, CSA and Dr Banks, have now made a joint application for costs.
Ms Oehlman has filed a response resisting the application.
Legislation
The starting point in regards to costs in this Tribunal is clearly stated in the QCAT Act. Unless otherwise provided by the QCAT Act or an enabling Act (in this case the Anti-Discrimination Act 1991) each party to a proceeding must bear the party’s own costs for the proceeding.[1]
[1] Queensland Civil and Administrative Act 2009, s 100.
The Anti-Discrimination Act 1991 does not provide for orders for costs.
The QCAT Act further provides the Tribunal may make an order requiring a party to a pay all or a stated part of the costs of another party if the Tribunal considers the interests of justice require it to make the order.[2]
[2] Ibid, s 102(1).
The QCAT Act provides when deciding whether to award costs the Tribunal may have regard to the following matters, in summary:
a)whether a party has acted in away unnecessarily disadvantages another party [with reference to the’ strike-out’ provisions in section 48(1)(a-g)];
b)the nature and complexity of the dispute;
c)the relative strengths of claims made by each party;
d)... not applicable in this matter;
e)financial circumstances of the parties;
f)anything else the Tribunal considers relevant.[3]
[3] Ibid, s 102(3).
[10] The QCAT Act also provides that the rules may authorise the Tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.[4]
[4] Ibid, s 105.
[11] The QCAT Rules provide additional power to award costs if particular offers to settle are rejected. In summary, the rule applies if a written offer to settle the dispute was made; and the other party does not accept the offer within the time the offer was open and in the opinion of the Tribunal, the decision of the Tribunal is not more favourable to the party than the offer[5].
[5] Queensland Civil and Administrative Tribunal Rules 2009, rule 86(1)(a)-(c).
[12] The Rule further provides the Tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.[6]
[6] Ibid, rule 86(2).
Respondents’ submissions
[13] In summary, the Respondents submit costs should be awarded because Ms Oehlman has caused unnecessary disadvantage throughout the proceedings by making applications to numerous jurisdictions, fundamentally amending her affidavit at trial, filing a late notification of attendance of a witness, Wade Pederson, and filing the affidavit of Ms Stratis-Kelly that did not give a full summary of the evidence the witness would give.
[14] The Respondents submit the nature and complexity of the dispute, that was convoluted and confusing, meant it was necessary for the Respondents to engage legal representation and submit it would not be in the interests of justice to bar the Respondents from recovering costs, citing, Tamawood[7] in Ralacom[8] as support to order costs. The Respondents submit in that case, with similar principles of those in sections 100 and 102 of the QCAT Act, Keane JA (as his Honour then was) was of the view
where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
[7] Tamawood Ltd & Anor v Paans [2005] QCA 111.
[8]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments(No 2) [2010] QCAT 412 at 26.
[15] The Respondents state they have incurred costs in excess of $70,000.00, including engaging counsel, in defending the matter given the complexity and extensive material filed.
[16] In regard to the relative strengths of the claim the Respondents submit that Ms Oehlman’s case was without merit, lacked detail and clarity, and had failed in every allegation and had no reasonable prospect of success. The Respondents further submit that Ms Oehlman was hopelessly confused as to the role her sexuality played in her interactions with others or deliberately misrepresenting the facts in order to take advantage of the opportunities under the Act to obtain redress against the first Respondent who did not accept her misconduct and the second Respondent who did not accept her persistent attempts to convert a platonic relationship into a sexual relationship.
[17] In regard to the financial circumstances of the Respondents the Respondents submit Community Services Australia Ltd is an organisation funded by the Commonwealth government and is subject to strict auditing, compliance with codes of practice and accountability measures. The First Respondent does not budget for legal expenses associated with matters such as this case and it has spent almost 10% of its annual funding on this matter directing those funds away from its business of providing information to families. Further, the funding Department holds concerns in relation to the expenses that have been incurred.
[18] The Respondents submit other considerations include that Ms Oehlman sought redress for her dismissal from employment and that had no connection whatsoever to her sexuality and that it is open to the Tribunal to consider the motives behind the proceedings were merely a continuation of behaviour to seek redress over the failure of the friendship with Dr Banks.
[19] The Respondents submit, as Dr Banks is a previous employee of the Community Services Australia, it is appropriate for Community Services Australia Ltd provide legal representation (except for a period of two months in early 2011) and she is a private citizen without means of meeting such an extensive legal expense.
[20] The Respondents also submit, that in addition to the submissions relating to the section 102 considerations, great weight should be place on Ms Oehlman’s rejection of an offer to settle made on 8 June 2011[9] that was made in accordance with QCAT Rules[10] and which was significantly less favourable to Ms Oehlman than the decision of the proceeding that dismissed the complaints against the Respondents.
[9] Respondents written submissions, annexures 1 and 2.
[10] Op cit, rule 86.
[21] The Respondents seek costs associated with the complaint prior to and following 8 June 2011.
Complainant’s submissions
[22] Ms Oehlman, in summary, resists the application of the Respondents and submits that the Respondents’ submissions are firstly, not persuasive and do not displace the normal costs rule; and secondly, the interests of justice reaffirm the normal costs rule and it is just and appropriate.
[23] Ms Oehlman submits the recent decision of Irvine & Porter[11] discussed the general principles and specific circumstances that prevail in regards to costs in human rights matters.
[11] Irvin & Porter v Mermaids Café & Bar and Ingall (No 3) QCAT.
[24] Ms Oehlman submits that the issues the Tribunal may have regard to when deciding whether it is in the interest of justice to award costs are not ‘grounds’ as suggested by the Respondents but rather factors the Tribunal may consider as stated by Judge Kingham, Deputy President of QCAT in Ascot v Nursing and Midwifery Board of Australia[12].
The public policy intent of the provisions in the QCAT Act is plain. The Tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require. The considerations identified in section 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether in a particular case the interest of justice require the Tribunal to make a costs order.
[12] Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364.
[25] Ms Oehlman submits she has not caused unnecessary disadvantage. Ms Oehlman submits that she did no more than act within her civil rights when she sought redress for what she perceived was a discriminatory and unfair dismissal. Ms Oehlman submits there is no dispute that she was dismissed from her employment and it was within her right to file an application in Fair Work Australia. Ms Oehlman submits she was one of several employees bullied by the previous manager. Ms Oehlman submits she was sufficiently stressed by the bullying and employer inaction that she made a complaint to Workplace Health and Safety Queensland. Ms Oehlman submits the manager’s employment was subsequently terminated by Community Services Australia following a complaint by Dr Banks.
[26] Ms Oehlman filed her discrimination complaint in the ADCQ and submits, self-evidently, it did not settle, was declared unconciliable and referred to the Tribunal for hearing. Further conciliation did not resolve the matter. Ms Oehlman submits her election to proceed to hearing in a Tribunal charged with protecting citizen’s rights under the State’s human rights legislation can not be considered, as the Respondents suggest, not in the interest of justice and causing unnecessary disadvantage.
[27] Ms Oehlman submits the amendment to her affidavit to say she had a ‘fleeting attraction’ towards Dr Banks was an ordinary event and not remarkable or deceitful as contended by the Respondents. Ms Oehlman submits the Tribunal made no findings of dishonesty against her.
[28] Ms Oehlman submits the Notice to Attend issued to Wade Peterson was filed and served in accordance with the timelines allocated for such purposes. Ms Oehlman submits there was no difficulty in cross-examining the witness and there was no quarrel with the evidence Mr Pederson gave about the words to the rap song.
[29] Ms Oehlman submits Ms Stratis-Kelly’s affidavit was drafted by Ms Stratis-Kelly herself and the content is entirely a matter for each witness to swear to, not just Ms Stratis-Kelly.
[30] In regards to the nature and complexity of the dispute Ms Oehlman submits the CSA retained Hall Payne lawyers to conduct the disciplinary investigation and they have been represented by them throughout the Fair Work Australia matter and these proceedings. Ms Oehlman submits that the fact the Respondents chose legal representation rather than self-representation is not a factor in establishing the interests of justice.
[31] Ms Oehlman submits the matter was heard over three days, there were no interlocutory applications or requirements for careful scheduling. Ms Oehlman submits the documents were fully particularised and the Respondents’ lawyers never claimed their clients were unable to understand the nature of the case. Ms Oehlman submits the matter proceeded smoothly and uneventfully from unsuccessful conciliation to hearing. Ms Oehlman relies on the case of Irvine and Porter to support the submission that her matter was not so complex as to attract a cost orders. In that case the successful complainant was not awarded costs, amongst other considerations, on the basis the matter was not found to be to be at a level of complexity that would warrant a costs order.
[32] In relation to the relative strengths of the claims Ms Oehlman submits the Respondents made an offer to settle which belies the assertion there was no prospect of success. Ms Oehlman held a genuine belief that she had been victimised on the ground of her sexuality. The complaint was not upheld. In any matter one party must win and one must lose. This is an ordinary outcome not one which should compel the Tribunal to order costs against Ms Oehlman. Ms Oehlman submits the Tribunal did not declare her ‘hopelessly confused’ or ‘deliberately misrepresenting’ the facts in order to exploit her human rights under the Anti-Discrimination Act 1991 as suggested by the Respondents.
[33] In relation to the financial circumstances of the parties Ms Oehlman submits that Ms Costanzo and Dr Banks, as highly qualified and tertiary educated women in psychology and a doctorate in law respectively, could have drafted responses to her assertions without legal representation.
[34] Ms Oehlman submits their legal costs do not originate from their personal pockets whereas her costs have been funded from her home deposit.
[35] Ms Oehlman submits the CSA is more than a government funded organisation providing local community counselling as it has portrayed itself in this application, rather, it is a multi-million dollar trading corporation with a span of commercial activities as revealed on its own website.
[36] Ms Oehlman submits it is curious that the CSA has not budgeted for legal costs when it would have incurred costs to retain Hall and Payne to conduct the disciplinary investigation. Ms Oehlman submits that it would be extraordinary that CSA did not seek prior approval of legal costs expenditure and if they did not then that is a matter of its own making and it would not be in the interests of justice to compel an order costs in the circumstances.
[37] In relation to other considerations Ms Oehlman submits the Respondents have raised nothing new in their submissions and that, notwithstanding an unsuccessful claim, there is nothing improper or vexatious as suggested by the Respondents when pressing with a claim that was genuinely held. It does not follow that an unsuccessful claim displaces the position in section 100.
[38] In relation to the other power to award costs Ms Oehlman submits there have been a number of cases where no costs have been made against a successful complainant who rejected a ‘more favourable’ offer before the hearing[13] and there have been cases where no costs have been made against an unsuccessful complainant[14]. Most recently the Federal Court declined to order costs as sought by the respondents in the case of Eatock v Bolt[15] because the offer to settle was made for purely commercial reasons and did not include an apology for the conduct.
[13] Rutherford v Wilson & State of Queensland [2001] QADT 7.
[14] Bowden v Waldock & Atherton Tableland Cooperative Dairy Association [1995] QADT 9.
[15] Eatock v Bolt (No 2) [2011] FCA 1180 at [34].
[39] Ms Oehlman submits his Honour, Bromberg J, also observed it was not sufficient to establish the offer was reasonable but it was necessary to establish the rejection was unreasonable. Whether the rejection was unreasonable is to be considered in the light of the circumstances that existed at the time of the rejection[16] and that there are circumstances where a party seeks the vindication, which a favourable court may recognise, and so compromise may not be appropriate.[17]
[16]Ibid at [34] citing Seven News Network Ltd v News Ltd [2007] FCA 1489 per Black CJ at [218].
[17]Ibid at [38] citing Australian Competition and Consumer Commission v Harris Scarfe(No 2) [2009] FCA 433 per Mansfield J at [10].
[40] Ms Oehlman submits as the Respondents’ offer to settle is tinged with the aspects of casualness and commerciality the rejection of the offer was not unreasonable. Furthermore, Ms Oehlman provided a detailed rejection of the offer to settle,[18] and suffered a personal wound of great significance given the portrayal of her as a sexual predator and her own history of being abused as a child. Ms Oehlman submits the offer to settle by the Respondents is nothing other than a cynical tactical manoeuvre engineered to convince the Tribunal to award costs against her. The offer was one-off and no spirit of negotiation was entered into by a counter-offer. The settlement negotiations were perfunctory and formalistic. In the absence of sincerity it cannot possibly be in the interest of justice for the complainant to meet the respondents’ cost when the costs are self-inflicted and paid for by a third party.
[18] Respondents' submission annexure 2.
[41] Ms Oehlman submits an order to pay the Respondents costs would not be in the interest of justice, indeed, they would be an injustice.
Findings and conclusion
Section 102(3)
[42] It is not unusual in employment related situations where an employee or former employee alleging such issues as bullying, unfair treatment, discrimination and/or dismissal to make applications to various statutory authorities seeking redress for their grievance. This is particularly the case when the employee is unrepresented at the time. At times the person may have a cause of action in all the jurisdictions and it is not until the person obtains relevant information from the authority or when they obtain some legal advice whether to proceed in one, all or any of the jurisdictions. Ms Oehlman’s approach to her general grievance was a relatively classic example, and as an employee something that she is completely entitled to initiate.
[43] The Tribunal does not accept that these other applications should be given particular relevance when considering whether the Respondents have been unnecessarily disadvantaged. The provisions of the QCAT Act relate to whether a party to a proceeding has acted in away that unnecessarily disadvantages another party. The proceeding before this Tribunal is a referral concerning discrimination in employment. It is that proceeding that the Tribunal considers when deciding whether it departs from the starting point of section 100, except insofar as considering the applications as evidence a party was vexatiously conducting the Tribunal proceeding. The Respondents have not made specific submissions in this regard rather referring only to the section 48(1) provisions that form part of section 102(3) of the QCAT Act. It would take much more evidence than that provided by the Respondents to consider Ms Oehlman’s claim in discrimination was a vexatious proceeding.
[44] The Respondents further claim they were unnecessarily disadvantaged by a change in Ms Oehlman’s affidavit, late notice of a witness and poor detail in the affidavit of another witness. The Tribunal is not satisfied these caused an unnecessary disadvantage to the Respondents. The Tribunal is satisfied that these issues are part of the general vagaries of a hearing. They were neither excessive nor extreme. Ms Oehlman’s change to her affidavit aligned her feelings to some of the content in her correspondence to Dr Banks. It may have taken some time for Ms Oehlman to reach that position but the Tribunal accepts it as an act of honest reality and not as something set out to deceive the Tribunal. The Respondents, through Counsel, were properly able to cross-examine Ms Oehlman on that issue along with the rest of her testimony.
[45] The Tribunal is also satisfied the witnesses, Mr Pederson and Ms Stratis-Kelly did not unnecessarily disadvantage the Respondents. Mr Pederson only agreed to give testimony under a Notice to Attend and his testimony was relatively uncontested. Ms Stratis-Kelly testified in her affidavit that Dr Banks made serious allegations about her that were unfounded and untrue at another workplace. Whilst she did not provide specific details the Tribunal is not convinced it was the complainant’s role solely to have some forethought as to what those details may entail. It is the Tribunal’s view that it might have been prudent for the Respondents to make some inquiry as to what those circumstances may have been.
[46] The Tribunal accepts there was some level of complexity in the dispute, but notes the complexity arose primarily from the nature of the personal relationship between Ms Oehlman and Dr Banks and how that encroached on the work environment. The complexity arose from issues of fact and credibility of witnesses. The matter did not raise complicated questions of law.
[47] The Tribunal notes Dr Banks, whilst unrepresented, ably filed well- articulated contentions in the Tribunal. Dr Banks did not seek costs for any legal advice she may have sought at that stage or future stages of the proceeding.
[48] The Respondents rely on the case of Tamawood to support their submission in regard to the nature and complexity of the proceeding. The Tribunal whilst it acknowledges, with respect, the general principles in that matter and notes that the costs issue in that matter arose from a similar starting point to that in section 100 of the QCAT Act, the difference between the Commercial and Consumer Tribunal Act2003 and the QCAT Act has been considered by the President of QCAT in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[19] when the President commented as follows:
In considering subsections 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, his Honour felt that the CCT provisions negated the traditional position that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise. Section 100 and 102 of the QCAT Act attract the operation of the same principles.
Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
That conclusion must, here, be considered in the light of the difference between section 70 of the CCT Act and section 100 of the QCAT Act. Section 70 speaks of a ‘main purpose’ but section 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, as to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; section 100 has no such proviso, although it appears later in section 102(1).
The President went on to say:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstance is relevant to the discretion inherent in the phrase – the interests of justice point so compellingly to a costs award that they overcome the strong contra – indicator against costs orders in section 100.
[19]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
[49] In this case the Tribunal is not convinced that the nature and complexity of the matter reaches a level that would of itself persuade the Tribunal to depart from the section 100 starting point in regards to costs.
[50] In regard to the relative strengths of the claims the Respondents submit Ms Oehlman’s case did not at any point have reasonable prospects of success and any reasonable person assessing the complaint would come to a similar conclusion. The Tribunal does not accept this submission. Given the complex nature of the relationship between Ms Oehlman and Dr Banks and Ms Oehlman’s experience in the workplace in regards to the comments made by the industrial advocate about lesbians, along with remaining inequality towards homosexuality in society, the Tribunal does not accept Ms Oelhman was ‘hopelessly confused’ as to the role her sexuality played in interactions with others. On the contrary, the Tribunal is satisfied Ms Oehlman was acutely aware of the potential prejudices of others.
[51] The Tribunal did not find Ms Oehlman was ‘deliberately misrepresenting’ the facts in order to take advantage of the discrimination laws. The CSA did not respond throughout the proceedings about the alleged comments made by the industrial advocate about lesbians and Ms Oehlman’s non-participation in the negotiation meetings following that comment. In all the circumstances the Tribunal accepts Ms Oehlman genuinely believed her sexuality played a significant part in her suspension and ultimate dismissal from employment.
[52] The onus of proof in making out her claim rested with Ms Oehlman. The Tribunal decided, in the reasons already provided, Ms Oehlman did not meet that onus. The Tribunal is not convinced that that in itself wholly diminishes the position Ms Oehlman held when initiating the matter and throughout the proceeding. If a loss in the Tribunal is sufficient in itself to attract an order for costs that would be akin to a ‘costs following the event’ path and that would be contrary to the starting position of section 100 of the QCAT Act.
[53] The Tribunal is not convinced the Respondents’ financial circumstances warrants an order for costs. Whilst the Tribunal accepts the Centre from which Ms Oehlman and Dr Banks worked is not operated from a particularly large budget, it is not the Centre that is the Respondent in the matter. The Centre is an organisation within CSA, a large Corporation that attracts significant funds from the Commonwealth. It is a matter for CSA to account for its expenditure. This application and the decision may form some part of that process but that itself is not sufficient to attract an order for costs.
[54] The Tribunal also notes CSA engaged Hall and Payne, the law firm representing CSA in these proceedings, to investigate Dr Banks’ complaint against Ms Oehlman. A large part of the evidence in this proceeding was drawn from evidence in that investigation. Therefore Ms Oehlman’s case, in general, was not particularly novel to CSA or Dr Banks.
[55] Dr Banks’ financial circumstances are not affected by this decision. CSA found it appropriate to provide Dr Banks with legal representation and Dr Banks consented to such an arrangement.
[56] In contrast Ms Oehlman has expended significant personal savings on a case in which she has not been successful. Ms Oehlman is not tertiary educated and although now employed took some time in finding a job after she was summarily dismissed from her employment. It could not be said to be in the interest of justice to make an order for costs up to the vicinity of $70,000.00 against her in favour of a large corporation that dismissed her through an intermingled investigation of another matter that substantially traverses the subject of these proceedings.
Rule 86
[57] The Respondents made a written offer to settle on 8 June 2011. The offer was made on behalf of both Respondents. The terms of the offer were: the payment of $20,000.00 to Ms Oehlman; discontinuance of the QCAT proceedings on the basis each party bears its own costs and execution of a Deed providing for full release and confidentiality.
[58] The offer was open for 14 days. The Respondents submit the offer was a commercial offer with a view to resolving proceedings and limiting costs, it was more than a reasonable offer in the circumstances and it was an estimate of future costs that would be incurred in the event the matter progressed to hearing.
[59] The Tribunal notes the letter of offer also states, in summary, that the amount of the offer will not be increased, nor will it be revisited once the Respondents have incurred costs in responding to Ms Oehlman’s claim. The letter also noted that the Respondents would seek an order for costs in the event the matter proceeds and drew attention to sections 102 and 103 of the QCAT Act and QCAT Rule 86.
[60] Ms Oehlman rejected the offer and made a detailed counter-offer similar to, but reduced, to the proposal put in February 2011. Ms Oehlman sought financial compensation to the sum of $80,380 including economic loss, general damages and a fixed legal cost and a statement of employment service. The counter-offer was open for 14 days from 10 June 2011.
[61] In that correspondence, and in Ms Oehlman’s own words, she reiterates she was exposed to discrimination, escorted from her workplace in front of colleagues and defamed by insinuations regarding her personal and professional contact with children, damaging her reputation.
[62] The correspondence also notes Ms Oehlman was deeply hurt by Dr Banks’ contentions that not only accused her of sexual harassment but also of stalking and inferred she was a sexual predator. It noted these issues against Ms Oehlman’s personal history of child sexual abuse would form the basis of a claim for punitive or exemplary damages if settlement negotiations fail.
[63] The Respondents did not accept the counter-offer. The Respondents submit the counter-offer was not a sensible or reasonable attempt to negotiate an outcome, it was clear prior to the hearing the complaint was without merit, the complaints were dismissed and the decision of the Tribunal is significantly less favourable to Ms Oehlman than the outcome.
[64] The Respondents submit that the Respondents should be awarded the reasonable costs in conducting the proceeding after 8 June 2011.
[65] Ms Oehlman’s submissions, in summary, rely on the view Ms Oehlman’s rejection of the offer was not unreasonable because the offer was not made in the spirit of negotiation but was perfunctory and formalistic; whilst she had entered negotiation with a reduction in her counter-claim of around $20,000.00 to which the Respondent did not engage; and significantly that the commercial flavour of the offer failed to appreciate the deep humiliation she experienced when escorted from her workplace or the personal wound of great significance given Dr Banks’ portrayal of her as a sexual predator against her own history of being abused as child that she had disclosed to the Respondents.
[66] The Rules provide that if a written offer to settle is made, and the other party does not accept the offer, and in the opinion of the Tribunal, the decision of the Tribunal in the proceeding is not more favourable to the other party than the offer the Tribunal may award costs.
[67] The Rules further provide in deciding whether the decision is or is not more favourable the Tribunal must take into account any costs it would have awarded on the date of the offer and disregard any interest or costs it awarded relating to a period after the date the offer was given.
[68] On the basis of the section 102(3) factors considered in this application the Tribunal is satisfied it would not have ordered any costs to the date of the offer or any costs after the date of offer to disregard. In the circumstances the Tribunal is of the opinion a clear dismissal of the complaints is not more favourable to Ms Oehlman than the offer to settle made by the Respondents.
[69] In light of the provisions of rule 86(1) being met the Tribunal may award the Respondents all reasonable costs incurred by them. This is clearly a discretionary rule and in keeping with the section 100 starting position of the QCAT in regards to costs.
[70] The Tribunal is not persuaded, notwithstanding the offer to settle, that the Tribunal should exercise its discretion in the circumstances. Along with the reasons outlined earlier in this decision in relation to the section 102(3) factors the Tribunal is not convinced that the interests of justice warrant Ms Oehlman bearing an order for costs against her. This proceeding, through responses to the complaint, has produced some claims that the Tribunal notes could be potentially damaging to Ms Oehlman’s reputation particularly given her line of work. Furthermore, the intermingling of CSA’s investigation of Dr Banks’ complaint and its decision to dismiss Ms Oehlman based on an unrelated matter, was in the Tribunal’s opinion, not only questionable in terms of procedural fairness but contributed to Ms Oehlman’s belief that her sexuality played a part in her dismissal.
[71] The Tribunal has not been persuaded in all the circumstances, including considering section 102(3) factors and rule 86 provisions individually and collectively, that the interest of justice points so compellingly to a costs award that overcome the strong contraindication of section 100.
[72] The Tribunal orders that there be no order for costs in the proceeding.
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