Ragless v Stokes (No 2) - [2016] SAEOT 5

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RAGLESS v STOKES (No 2)
[2016] SAEOT 5
Judgment of Her Honour Judge Cole
29 September 2016
PROCEDURE - COSTS
HUMAN RIGHTS - DISCRIMINATION
Application by the respondent for an order for costs on the basis that the proceedings brought by the complainant were frivolous or vexatious. Application for costs against the complainant’s husband, Mr Ragless, a non-party to the proceedings.
Held: The application for an award of costs against Mr Ragless is refused. A costs order is made against the complainant on a party/party basis.
Equal Opportunity Act 1984 (SA) s 26, referred to.
Attorney General v Wentworth (1988) 14 NSWLR 481; Bob Jane Corporation Pty Ltd v Barrot Ft Pty Ltd (No 2) [2012] SASC 89; Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; FPM Constructions Pty Ltd v Council of The City of Blue Mountains [2005] NSWCA 340; General Steel Industries Inc. v Commissioner for Railways (NSW) & Others [1964] HCA 69; (1964) 112 CLR 125; Jones v Cusack (1992) 109 ALR 313; King v SA Psychological Board [1998] SASC 6621; Knight v FP Special Assets Ltd (1992) 174 CLR 178; May v Christodoulo [2011] NSWCA 75; Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66; Ramstrom v Baldino (No 2) [2014] SAEOT 4; Ragless v Stokes [2016] SAEOT 2; Vestris v Cashman (1998) 72 SASR 449; Vukoje v Ethnic Broadcasters Inc & Ors [2006] SADC 48; Watkins v Southlink Pty Ltd [2009] SAEOT 2, considered.

RAGLESS v STOKES (No 2)
[2016] SAEOT 5
THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:

Mrs Ragless’ complaint against Mr Stokes under the Equal Opportunity Act 1984 (“the Act”) of victimisation and unlawful discrimination was referred to this Tribunal, heard and dismissed.
An application for costs was then made on behalf of Mr Stokes against both Mrs Ragless and her husband, Mr Ragless, who was not a party to the proceedings before the Tribunal.
Power to award costs
The Act provides, in s 26(1):-
(1)The Tribunal may make an order for costs in proceedings in accordance with the scale prescribed for that purpose—
(a)     if in the opinion of the Tribunal the proceedings are frivolous or vexatious; or
(b)     if in the opinion of the Tribunal the proceedings have been instituted or prosecuted for the purpose of delay or obstruction; or
(c)     if in the opinion of the Tribunal there are other good reasons for doing so.
Mrs Ragless
The application for costs against Mrs Ragless was made on the basis that the proceedings were frivolous or vexatious within the meaning of s 26(1)(a), or that there were other reasons for making an award of costs, pursuant to s 26(1)(c).
Frivolous or vexatious
Ms Walker, counsel for the respondent, argued that Mrs Ragless’ proceedings before the Tribunal were frivolous or vexatious. The meaning of the phrase “frivolous or vexatious” was discussed in King v SA Psychological Board[1]
The next question which has to be determined is whether, in the circumstances of the allegations as I have described them and of the withdrawal, the Tribunal was justified in reaching the opinion that proceedings were frivolous or vexatious. As Toohey J pointed out in Jones v Cusack (1992) 109 ALR 313 at 315-316, the question is whether the proceedings themselves were vexatious and not whether they have been instituted vexatiously. It is not the appellant’s belief in the correctness of his arguments with which the Court is concerned. Proceedings will be frivolous or vexatious if the litigation can be seen to be futile and destined to lead only to expense and inconvenience for the parties where there is no possibility of the action proceeding…[2]
[1] [1998] SASC 6621.
[2] see also Attorney General v Wentworth (1988) 14 NSWLR 481; General Steel Industries Inc. v Commissioner for Railways (NSW) & Others [1964] HCA 69; (1964) 112 CLR 125; Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66; Watkins v Southlink Pty Ltd [2009] SAEOT 2; Ramstrom v Baldino (No 2) [2014] SAEOT 4; Vukoje v Ethnic Broadcasters Inc & Ors [2006] SADC 48.
Mr Ragless, on behalf of Mrs Ragless, argued in effect that in complaining to the Commissioner, and pursuing the matter in the Tribunal, Mrs Ragless’ motivation had not been frivolous or vexatious. It is clear from the authorities cited above that it is the substance and merits of the proceedings which are relevant to an assessment of whether the proceedings are frivolous or vexatious, rather than the motivation of the complainant.
The proceedings in the Tribunal in this matter were dismissed on the basis that they had no prospect of success. Detailed reasons for that determination were provided.[3] For the same reasons, I determine that the proceedings were frivolous or vexatious within the meaning of s 26(1)(a) of the Act.
[3] Ragless v Stokes [2016] SAEOT 12.
It is not necessary for me to undertake any consideration of Mrs Ragless’ motivation at any stage of the process, and I will not do so.
Other good reasons
I do not consider that any basis for an award of costs has been established under s 26(1)(c) of the Act.
Discretion
It is within the discretion of the Tribunal as to whether costs should be awarded, even after a determination that the proceedings were frivolous and vexatious.
In deciding how to exercise that discretion, I have had regard to the general purpose of the Act in so far as it can be gleaned from the provisions of the Act and the long title of the Act which says that it is:-
An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters.
The purpose of the Act in providing for an award of costs where proceedings are frivolous or vexatious is to give a small measure of protection against claims which have no prospect of success, having regard to the cost and inconvenience of defending a complaint.
Those considerations must be weighed with the evident policy behind creating a generally cost-order free jurisdiction, which is to encourage the making of complaints under the Act, or at least encouraging in the making of complaints with some prospect of success.
In this matter, Mrs Ragless’ attention was drawn repeatedly to the defects in her complaint. Those defects were set out in the respondent’s Answer and in the respondent’s counsel’s outline of submissions with respect to the application to dismiss the proceedings.
Balancing these considerations, in all of the circumstances of this matter, I consider that the respondent is entitled to an order that the complainant pay his costs of this matter on a party/party basis.
Mr Ragless, in his oral submissions, said that an award of costs would ‘punish’ Mrs Ragless. I make it clear that there is no sense in which the award of costs is intended to constitute punishment. It simply recognises the costs and the inconvenience which a respondent experiences where a complaint which cannot succeed under the Act is pursued against him or her.
Mr Ragless
The respondent applied for an order for costs against Mr Ragless, notwithstanding the fact that he was not a party to the proceedings.
Ms Walker argued that, on the wording of s 26(1) of the Act, there was no basis upon which to limit the power to award costs to an award against a party.[4]
[4] Knight v FP Special Assets Ltd (1992) 174 CLR 178.
In Ms Walker’s outline, she said
10.The principles which apply to applications for non-party costs orders were usefully summarised by Kourakis CJ in Bob Jane Corporation Pty Ltd v Barrot Ft Pty Ltd (No 2) [2012] SASC 89 at [23]-[29]. Relevantly:
10.1   In Vestris v Cashman, Lander J:
a)observed that such orders are exceptional;
b)emphasised that there must be a connection or association between the party to the litigation and the non-party against whom the order for costs is sought, which makes it just to make the order; and
c)accepted that it is not necessary to demonstrate any improper conduct, but if there is improper conduct it will plainly be a relevant factor.
10.2   In FPM Constructions Pty Ltd v Council of The City of Blue Mountains, [2005] NSWCA 340, Basten JA (Beazley and Giles JJA agreeing), identified that cases in which orders were made against non-parties tend to include some, if not the majority, of the following criteria:
a)the unsuccessful party to the proceedings was the moving party and not the defendant;
b)the source of funds for the litigation was the non-party or its principal;
c)the conduct of the litigation was unreasonable or improper;
d)the non-party or its principal had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest;
e)the unsuccessful party was insolvent or could otherwise be described as a person of straw.
10.3   The above passage was more recently approved of in May v Christodoulo [2011] NSWCA 75, and by the Full Court of the Federal Court in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50, with the Full Court going on to hold:
The Court has power to make an order for costs against a non-party where the non-party is connected with the unsuccessful party to the proceeding, and has caused that party to start, continue or prosecute the proceeding in circumstances where the non-party’s conduct makes it just and equitable that the non-party be visited with an order for costs in favour of the successful party either in addition to such an order against the unsuccessful party or in substitution for such an order.
Ms Walker pointed out that Mrs Ragless’ complaint arose out of the same circumstances which have given rise to numerous actions commenced by Mr Ragless, in this jurisdiction and in other jurisdictions. Ms Walker also pointed out that some of the documents filed by Mrs Ragless were clearly drafted by Mr Ragless, and that Mr Ragless clearly had considerable involvement in the conduct of the proceedings.
I accept that Mr Ragless has had significant involvement in this matter. However, I do not consider that an order for costs against him would be appropriate. The substance and merits of the complaint dealt largely with Mrs Ragless’ involvement in the situation, and its impact upon her. Mrs Ragless argued the application to dismiss on her own behalf. This is not an appropriate case for an award of costs against a non-party, even if the Tribunal has such a power.
Conclusion
The application for an award of costs against Mr Ragless is refused.
There will be an order for costs against Mrs Ragless on a party/party basis.