Ramstrom v Baldino (No 2)

[2014] SAEOT 4

EQUAL OPPORTUNITY TRIBUNAL

(District Court Administrative and Disciplinary Division)

RAMSTROM v BALDINO (No 2)

[2014] SAEOT 4

Judgment of Her Honour Judge Cole, Member Ms H Jasinski and Member Mr D Shetliffe

9 October 2014

PROCEDURE - COSTS

HUMAN RIGHTS - DISCRIMINATION

On 20 December 2013 the complaint brought by the complainant alleging sexual harassment by the respondent was dismissed. The respondent now applies for an order for costs on the basis that the proceedings brought by the complainant were frivolous or vexatious.

Held: No basis for determining the complainant's claim was either frivolous or vexatious. Application refused.

Equal Opportunity Act 1984 (SA) s 26, referred to.
Attorney-General v Wentworth (1988) 14 NSWLR 481; General Steel Industries Inc v Commissioner For Railways (NSW) And Others (1964) 112 CLR 125; Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Ramstrom v Baldino [2013] SAEOT 14, considered.

RAMSTROM v BALDINO (No 2)
[2014] SAEOT 4

1. Following a lengthy trial, the complaint made by the complainant, pursuant to the Equal Opportunity Act 1984 (“the Act”), was dismissed.[1]  The respondent now seeks an award of costs against the complainant.

   [1]    Ramstrom v Baldino [2013] SAEOT 14.

   Costs

2. 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.

3. Mr Culshaw, for the respondent, submitted that an order should be made pursuant to s 26(1)(a) or (c).

4. The question of what constitutes frivolous proceedings has been the subject of judicial determination over a long period of time, in many different contexts.  In the context of an application for the summary dismissal of proceedings on the basis that they were frivolous, in General Steel Industries Inc. v Commissioner for Railways (NSW) And Others,[2] Barwick CJ said:

   The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense ".

   At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

   As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon  J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners where he says: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

   (Footnotes omitted)

   [2] (1964) 112 CLR 125 at 129-130.

5. The NSW Industrial Relations Commission, in Peden v Lake Macquarie Refrigeration Pty Ltd,[3] in the context of an application for costs, after referring to General Steel Industries said:[4]

   In light of the well established line of authority, and the ordinary meaning of the word “frivolous”, we are satisfied that an application under s 84 will be frivolous if, on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter.

   [3] [2004] NSWIRComm 66.

   [4] At [20].

6. Clearly, Ms Ramstrom’s complaint was not manifestly groundless, and nor was it paltry or trifling.  The complaint was not frivolous.

7. In Peden,[5] the Commission relied upon the description of “vexatious” from the decision of Roden J in the Supreme Court of NSW in Attorney-General v Wentworth:[6]

   …

   It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

   1.    Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

   2.    They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues for which they give rise.

   3.    They are also properly to be regarded as vexatious if, irrespective of a motive of a litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless.

   [5] At [28].

   [6] (1988) 14 NSWLR 481 at 487.

8. There is no basis for a finding that the complainant’s claim was vexatious.  Both “frivolous” and “vexatious” mean a great deal more than “unsuccessful”.[7] The respondent’s application for costs under s 26(1)(a) will be refused.

   [7]    See also Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 per Bleby J at [58].

9. Mr Culshaw submitted that the finding by the Tribunal that some of Ms Ramstrom’s allegations were untrue, together with the finding that other allegations had not been proven to the requisite standard of proof, was a sufficient basis for an award of costs under s 26(1)(c) of the Act. It seems to us that there is a very good reason that the Act provides, as it does, in s 26, for a limited basis upon which costs may be awarded, rather than providing for the unsuccessful party to pay the costs of the successful party before the Tribunal. The reason is one of public policy. The preamble of the Act 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.

10. The limitation on the circumstances in which costs may be awarded is intended to limit the extent to which a complainant might be discouraged from pursuing a claim under the Act before the Tribunal by reason of the likely expense in pursuing it. Bearing that in mind, in all of the circumstances of this case, we do not consider that it would be appropriate to make an order for costs pursuant to s 26(1)(c) of the Act.

11. The respondent’s application for an award of costs is refused.