Serewko v State of Queensland
[2009] QSC 333
•27 October 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Serewko v State of Queensland & Anor [2009] QSC 333
PARTIES:
EUGENE SEREWKO
(appellant)
v
STATE OF QUEENSLAND
(first respondent)
v
CHRISTOPHER ELMS
(second respondent)FILE NO:
BS 5259 of 2009
DIVISION:
Trial Division
PROCEEDING:
Application (appeal)
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
27 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
7 August 2009
JUDGE:
Daubney J
ORDER:
1. The appeal be dismissed with costs;
2. The decision of the Anti-Discrimination Tribunal of 21 April 2009 is affirmed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWER OF COURTS – COSTS – where appellant sought to appeal a decision of the Anti-Discrimination Tribunal – where Tribunal ordered that the appellant pay the first and second respondents’ costs – where first respondent had previously made an offer to settle to the appellant – where appellant argued the Tribunal Member failed to consider whether the offer to settle was a remedy to the appellant’s real complaint – where appellant argued the Tribunal member failed to consider to what extent the offer made by the respondents met the concerns of the appellant – whether the Tribunal failed to take into account a relevant consideration
Anti-Discrimination Act 1991 (Qld)
Fox v Body Corporate for “Points North” Community Titles Scheme 4774 (No. 2) [2008] QADT 16, considered
Gauld v Qld Breweries Pty Ltd [2007] QADT 20, cited
House v R (1936) 55 CLR 499, considered
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 66 ALR 299, applied
Rutherford v Wilson and State of Queenslance [2001] QADT 7, cited
Serewko v State of Queensland & Elmes (No. 2) [2009] QADT 9, cited
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, citedCOUNSEL:
S Keim SC for the appellant
A Horneman-Wren for the respondentsSOLICITORS:
Susan Moriarty and Associates for the appellant
Corrs Chambers Westgarth Lawyers for the respondents
This is an appeal against a costs order made by the Anti-Discrimination Tribunal[1] (“the Tribunal”). The appellant contends that the learned Tribunal Member erred by failing to take into account relevant considerations.
[1] Serewko v State of Queensland & Elmes (No. 2) [2009] QADT 9.
The original proceedings
The appellant lodged a complaint in the Anti-Discrimination Commission on
4 December 2006 which was referred to the Tribunal by Notice of Referral and Referral Report dated 14 November 2007. It was alleged by the appellant that the first and second respondents had breached the Anti-Discrimination Act 1991 (Qld) (“the Act”) by unlawfully discriminating against the appellant on the grounds of race and age in the area of work. The appellant had applied for a position in the theatre area in the Royal Brisbane and Women’s Hospital (“RBWH”).
The specific allegations that were raised by the appellant in his Amended Points of Claim included:
(a) he was discriminated against as a result of being denied opportunities for promotion because of the failure by the respondents to select him for any of three job vacancies in 2006;
(b) the successful appointees to the 2006 vacancies were all of Anglo-Saxon heritage, whose first language was English, and who, in the case of two successful applicants, were “mates” with the second respondent. This was said to constitute preferential provision of occupational training to the successful applicants;
(c) in denying the appellant selection for promotion to the vacancies, the respondents directly discriminated against the appellant on the basis of race;
(d) the second respondent’s selection processes for the 2006 vacancies were conducted in a way which discriminated against the appellant;
(e) the respondents indirectly discriminated against the appellant by imposing a term which required applicants for the job vacancies to demonstrate a level of English language skills commensurate with the level ordinarily expected of a person whose first language is English, being a term with which the appellant, as a Polish migrant, could not comply and which was not reasonable in the circumstances;
(f) the respondents preferred young workers for training and promotional opportunities, directly discriminating against the appellant on the basis of age;
(g) removing the complainant from theatre and reassigning him to cleaning toilets, and denying him acting opportunities, constituted age and/or race discrimination; and
(h) permanently moving the complainant and transferring him to cleaning duties because he complained of unlawful discrimination, constituted victimisation.[2]
[2] Appeal Record Book, pages 7-8.
On 19 December 2008, the respondents made a settlement offer in the sum of $5000 (“the settlement offer”) pursuant to s 213A of the Act. This was rejected by the appellant.
On 6 April 2009, the learned Tribunal Member made an order wholly dismissing the appellant’s complaints and inviting the parties to file written submissions within seven days as to costs. A tentative view was expressed by the Tribunal that it was inclined not to make any order for the payment of another party’s costs and to order that each party bear its own costs in the proceedings.
In reaching this preliminary view, the Tribunal referred to two factors of significance:
1. the appellant genuinely believed there had been a contravention of the Act; and
2. the objects of the Act are to encourage the bringing of complaints where a complainant genuinely believes there has been a contravention of the Act.
Submissions by the parties as to costs
Following the decision on 6 April 2009, the first and second respondents sought an order that the appellant pay the respondents’ costs in the proceedings (to be assessed on the District Court scale of costs) and that, from 19 December 2008 (the date which the settlement offer was made by the first respondent) the appellant pay all costs incurred by the first respondent[3] because of:
[3] Appeal Record Book, page 28, paragraph 34.
“(i) the manner in which the complainant progressed the complaint, specifically:
(A) the complainant sought to progress the complaints that were lapsed by the Anti-Discrimination Commission, Queensland; and
(B) the fact that the complainant sought to progress the complaint in circumstances where, objectively considered, the complaint had no merit.
(ii) The fact that an offer was made to the complainant by the first respondent on 19 December 2008 pursuant to section 213A of the Act, which was rejected by the complainant.”[4]
[4] Appeal Record Book, page 21, paragraph 5.
In the alternative, the first respondent sought an order:
“(a) the complainant pay the respondents’ costs in this proceeding (to be assessed using the District Court scale of costs); or
(b) from 19 December 2008, the complainant pay to the first respondent all costs incurred by the respondents; or
(c) from 19 December 2008, the complainant pay the respondents’ costs in this proceeding (to be assessed using the District Court scale of costs).”[5]
[5] Appeal Record Book, pages 28 & 29, paragraph 35.
The appellant submitted to the Tribunal that no order as to costs should be made, relying on the following factors:
1. matters of public interest;
2. the appellant’s modest financial circumstances;
3. the Act’s philosophical underpinnings;
4. the history of settlement offers;
5. the respondents’ equity obligations set out in a range of industrial instruments;
6. the reasons for the enactment of the Act; and
7. “the prejudicial effect which a Cost Order of the magnitude sought by the respondents would impose on other complainants’ willingness to lodge a complaint.”[6]
[6] Appeal Record Book, pages 75-76
The 21 April 2009 order as to costs
On 21 April 2009 the Tribunal made the following orders as to costs:
“1. The complainant pay the costs incurred by the first and second respondents from 12 January 2009, such costs to be agreed.
2. Failing agreement:-
(a) the respondents’ solicitors file and serve within 21 days of the date hereof a statement of the respondents’ costs of the proceedings, in itemised form and in accordance with the District Court scale of costs;
(b) the complainant shall object to any item of the respondents’ costs statement by filing and serving a Notice of Objection within 28 days of receipt of details of the costs claimed by the respondents;
(c) the notice of Objection must:-
(i) number each objection;
(ii) give the number of each item in the costs statement to which the complainant objects; and
(iii) for each objection, concisely state the reasons for the objection, identifying any issue of law or fact the complainant considers the Tribunal must consider to make a decision in her favour;
(d) the respondents shall file and serve any Response to the Notice of Objection within 14 days of being served with the Notice of Objection;
(e) the complainant shall file and serve any Reply to that Response within 7 days of being served with that Response.”[7]
[7] Serewko v State of Queensland & Elmes (No. 2) [2009] QADT 9.
In his judgment, the learned Tribunal Member considered that, as the orders of the Tribunal were not more favourable to the complainant than the terms of the offer to settle made by the first respondent, it was:
“open to the Tribunal to make an order requiring the complainant to pay “all costs incurred by [the respondents] after the offer was made.”[8]
He concluded at [9]:
“Having considered the matters set out by the complainant in the written submissions, and the factors listed in s.213 of the Act, I am satisfied it would not be fair and reasonable for the complainant to be visited with an order that he pay all of the respondents’ costs of the proceeding. However, I am satisfied it would be fair and reasonable, having regard to the rejection of the more favourable offer to settle, that the complainant be ordered to pay the respondents’ costs of the proceeding from the date of expiry of that offer.”
[8] Serewko v State of Queensland & Elmes (No. 2) [2009] QADT 9 at [6].
In reaching this conclusion, the Tribunal considered that such an order for costs would not defeat the reasons for the enactment of the Act and was fair.[9] The Member said at [12] – [13]:
[9] Serewko v State of Queensland & Elmes (No. 2) [2009] QADT 9 at [10].
“12. The objects of the Act are not enhanced by encouraging complainants, who refuse offers of settlement which are favourable to them, to expect they will not be visited with an order for costs. The existence of s 213A of the Act indicates an intention on the part of the legislature to provide specific power for a Tribunal to make a costs order in such circumstances.
13. The fact the complainant genuinely believed there had been a contravention of the Act does not negate the importance of a party to a proceeding being visited with a costs order where that party declined an offer to settle which was more favourable than the outcome obtained by the hearing process.”
Notice of Appeal
On 19 May 2009 the appellant filed and served a Notice of Appeal against the Tribunal’s decision of 21 April 2009. The grounds for appeal were as follows:
“(a) The learned Tribunal Member erred in finding that the Complainant should pay the costs which were incurred by the first and second respondents from the date of 12 January 2009.
(b) The learned Tribunal Member failed to have proper regard for and appreciate all the relevant factors in s 213(3) of the Anti-Discrimination Act 1991 (Qld) (“the Act”) in particular
s 231(3)(a), and in doing so failed to exercise the discretion as required by the Act.
(c) The learned Tribunal Member failed to have proper regard for and appreciate all the relevant factors in s 213(3) of the Act when applying s 213A(2) to the Offer of Settlement made by the First and Second Respondent dated 19 December 2008.
(d) The learned Tribunal Member failed to consider whether the Offer to Settle dated 19 December 2008 was a remedy to the Appellant’s real complaint which was a consideration annunciated in Fox v Body Corporate for “Points North” Community Titles Scheme 4774 (No. 2) [2008] QADT 16.
(e) In rejecting the arguments in the Appellant’s Submissions dated 16 April 2009 in regards to costs, the learned Tribunal Member failed to have relevant consideration to those views expressed by the Appellant in those Submissions in particular those in regards to the Appellant’s impecuniosity.”
An amended Notice of Appeal was later served on the respondents on 22 July 2009. The amended grounds of appeal included that:
“1. The learned Tribunal Member failed when exercising their discretion to make an order for costs pursuant to s 213 or 213A ADA, to consider whether the offer made by the respondents (and relied upon by the learned Tribunal Member as a relevant factor in making the order for costs) was a remedy to the real complaint of the appellant in bringing his complaint before the Tribunal to be heard.
2. The learned tribunal member failed in exercising its discretion to make an order for costs pursuant to s 213 or 213A ADA, to consider to what extent the offer made by the respondents (and relied upon by the learned Tribunal Member as a relevant factor in making the order for costs) met the concerns of the appellant as raised in the litigation before the Tribunal.”
The Anti-Discrimination Act
The Tribunal’s discretion to award costs is governed by ss 213 and 213A.
Specifically, s 213 provides:
“(1) The tribunal may order a party to pay such costs as the tribunal considers reasonable.
(2) However, costs must be assessed using the scale of costs for the District Court under the Uniform Civil Procedure Rules1999 unless the tribunal is satisfied that, because of the complexity of the matter, or because of another reason, costs should be assessed using a higher scale.
(3) In deciding whether to order a party to pay costs, the tribunal may have regard to —
(a) the reasons for the enactment of this Act as stated in the preamble, and whether these reasons would be compromised or defeated in ordering the party to pay costs; and
(b) the fairness of a costs order, having regard to the following—
(i) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding, including, for example, by—
(A) failing to comply with an order or direction of the tribunal without reasonable excuse; or
(B) failing to comply with this Act; or
(C) asking for an adjournment as a result of subparagraph (A) or (B); or
(D) causing an adjournment; or
(E) attempting to deceive another party or the tribunal; or
(F) vexatiously conducting the proceeding;
(ii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(iii) the relative strengths of the claims made by each of the parties;
(iv) whether a party reasonably believed there had been a contravention of this Act;
(v) the nature and complexity of the proceeding;
(vi) any other matter the tribunal considers relevant.
(4) Subsection (3) does not limit subsection (1).
Example of operation of this section—
The tribunal may consider it not to be appropriate to order costs if the subject matter involves issues of particular complexity or if the decision may establish important precedents in the interpretation or application of this Act.”
Division 3A of the Act allows for offers to settle to be made. Section 213A provides:
“(1) This section applies if—
(a) a party to a proceeding before the tribunal gives another party an offer in writing to settle the proceeding; and
(b) the other party does not accept the offer while the offer is open; and
(c) the offer complies with any requirements of this division for an offer to settle; and
(d) in the tribunal’s opinion, the orders made by the tribunal in the proceeding are not more favourable to the other party than the offer.
(2) If the tribunal considers it reasonable to do so, it may make an order in favour of the party who made the offer requiring the other party to pay all costs incurred by the offering party after the offer was made.
(3) In making an order under subsection (2), the tribunal may have regard to the matters mentioned in section 213(3).
(4) In deciding whether its orders are or are not more favourable to a party than an offer, the tribunal—
(a) must take into account any costs it would have ordered on the date the offer was made; and
(b) must disregard any interest or costs it orders for any period after the date the offer was received.”
Failure to take into a relevant consideration - appellant’s arguments
Counsel for the appellant submitted that the learned Tribunal Member had failed to consider the argument and matters raised below to the effect that the settlement offer did not meet the real object of the complainant’s litigation. It was asserted that the Tribunal failed to appreciate the relevance of these matters, including in relation to the decision on the question of costs and that these failures amounted to an error of law.
It was argued that the appellant’s only objective in seeking to make out a contravention of the Act was to obtain his work ambition of being employed as a Theatre Ward Officer and that the appellant’s objectives and lack of interest in money compensation were relevant to the issues of the reasonableness of the order of the Tribunal.
The appellant sought to rely on a number of cases to support the proposition that what is reasonable in relation to costs should not be determined by a mathematical calculation: Rutherford v Wilson and State of Queensland;[10] Gauld v Qld Breweries Pty Ltd.[11]The appellant appealed to notions of fairness and good conscience, referring to the fact that the Tribunal “must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.”[12]
[10] [2001] QADT 7.
[11] [2007] QADT 20.
[12] S 208(1)(c).
On this basis, the appellant made the following submission:
“It follows that, in considering whether an order for costs (in the wake of orders ‘which are not more favourable’ to an offer) is reasonable or fair, the subject matter, scope and purpose of the ADA makes it essential to consider a number of factors relevant to the nature of the action. These matters will, depending on the circumstances of the matter, include the nature of the contravention alleged; the type of relief sought in the application; the nature of offers canvassed back and forth between the parties; the relevance of matters contained in the offer to the objectives spelled out in the preamble; the relevance of the relief sought by the applicant to the objectives spelled out in the preamble.”
The appellant’s objectives and lack of interest in monetary compensation were said to go towards “the substantial merits of the case.” It was argued that as the appellant had his heart set on a particular job, the fact the settlement offer was rejected because it did not remedy the fact he had been unsuccessful should have been considered. Counsel for the appellant submitted that what the appellant was trying to achieve was a “systemic change” which would affect his “life personally” and that accepting the monetary offer may have denied the appellant the opportunity to raise this issue impacting his life.
I was also taken by counsel for the appellant to Fox v Body Corporate for “Points North” Community Titles Scheme 4774 (No. 2)[13] which considered whether an offer to settle was a remedy to the real complaint. Tribunal Member Savage S.C. concluded at [6], “Having considered those arguments and the respondent’s submissions, especially as to the offer made prior to the hearing, which did not remedy Mr Fox’s complaint, I have decided that there should be no order as for costs.”
[13] [2008] QADT 16.
Failure to take into a relevant consideration - respondent’s arguments
The respondent referred to the settled propositions concerning appeals against exercises of discretion, [14] and submitted that:
1. The Tribunal had not failed to take into account a material consideration in exercising its discretion to award costs, such that it had engaged in an error of law; and
2. It was reasonable for the Tribunal to exercise its discretion and award costs in favour of the respondents.
[14] House v R (1936) 55 CLR 499.
The respondent cited the judgment of Mason J (as he then was) in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors.[15] His Honour said at [308]:
“… The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …
… What factors a decision-maker is bound to consider in making the decision is determined by the construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors…are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act … where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …”
[15] (1986) 66 ALR 299.
On this basis, the respondent argued that the Tribunal was not bound by the Act to take into account matters not listed in ss 213 and 213A of the Act and further that the Tribunal was not bound to take into account matters listed in those sections. It was emphasised that the Tribunal “may” decide to have regard to certain matters when exercising its discretion.
It was submitted that even if it were accepted that the Tribunal is bound to take into account factors in addition to those outlined in s 213(3) of the Act, it did not mean that the Tribunal failed to consider these factors and committed an error of law.
The points relied upon by the respondent may be summarised as follows:
1. the appellant’s Amended Points of Claim reveals that compensation was also the appellant’s objective (not just the objective of wanting to be promoted to a Theatre Ward Officer);
2. the Tribunal is not required to specify every matter to which it turns its mind to in a judgment;[16] and
3. the matter considered was not so critical to the proper determination of the matter that it may be inferred that it was overlooked.
[16] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
No failure to take account of relevant considerations
When deciding whether to order a party to pay costs, s 213 provides that the Tribunal may have regard to, amongst other things:
(a) the reasons for the enactment of the Act as stated in the preamble, and whether these reasons would be compromised or defeated in ordering the party to pay costs; and
(b) the fairness of a costs order.
I was taken by the appellant to Parliament’s reasons for enacting the Act. It was pointed out that the preamble states that the Act seeks to “promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct.” It was argued that the preamble provides a useful tool for determining what factors must be taken into account in the making of costs orders and that the matter, scope and purpose of the Act militates against any mechanical exercise of the discretion.
Having considered the learned Tribunal Member’s decision and reasons I am of the view that no error has been demonstrated in the Tribunal’s exercise of the discretion pursuant to sections 213 and 213A of the Act to award costs against the appellant.
The learned Member expressly referred to the reasons for the enactment of the Act, satisfying himself that an order for costs would not compromise or defeat those reasons and that such an order was fair.[17] While acknowledging that no party failed to comply with orders or directions or engaged in any of the matters listed in s 213(3)(b)(i), the failure to accept the settlement offer resulted in a hearing which could have been avoided and the incurring of substantially more costs by the respondents. The Member clearly also considered the factors enumerated in section 213[18] and the appellant’s submissions.[19]
[17] At paragraph 10.
[18] At paragraphs 7 and 9.
[19] At paragraphs 8 and 9.
While there is no express mention of the relevance of the offer to satisfying the real object on which the litigation was based, I am satisfied this was captured by the Member at paragraph 8 of his decision under the term “personal circumstances.” In the hearing below, the appellant’s reply to the respondent’s submissions on costs set out a chronology of events leading up to the hearing of the complaint.[20] This chronology set out the very circumstances which were said by the appellant not to have been considered. For example, it referred to the fact that the appellant’s transfer to theatre was the most important matter[21] and that this was the remedy he sought[22] and that working in theatre was as close to achieving his dream of becoming a doctor as he would get.[23] It is this chronology of events to which the learned Tribunal Member refers in his decision.[24] Clearly therefore, the Tribunal considered the real object of the appellant’s litigation by virtue of the fact it expressly considered the appellant’s submissions which included the chronology of events setting out his ambition of being employed as a Theatre Ward Officer.
[20] Appeal Record Book pg 76.
[21] Appeal Record Book pg 78.
[22] Appeal Record Book pg 79.
[23] Appeal Record Book pg 77.
[24] At paragraph [8].
Section 213(3) enumerates the matters to which the Tribunal may have regard when determining the manner of exercise of its discretion on costs. It has not been demonstrated that, to the extent that the circumstances of the case warranted consideration of any of those matters, the Tribunal failed to give them due consideration.
Reasonableness of the Tribunal’s exercise of discretion
Section 213(1) states that the “tribunal may order a party pay such costs as the tribunal considers reasonable.” Similarly, the exercise of the discretion conferred by s 213A(2) is expressly regulated by the Tribunal’s consideration of reasonableness.
It cannot sensibly be argued that the Tribunal failed to exercise its discretion under either s 213 or s213A reasonably. I reach this conclusion on the basis that:
1. the appellant’s claim was wholly unsuccessful in the Tribunal;
2. the outcome in the Tribunal was no more favourable than the offer to settle made by the respondent. As a result, the respondent was put to considerable expense in defending the matter due to the appellant’s decision not to accept the offer; and
3. the offer made by the respondent must be considered a genuine attempt to resolve the differences between the parties especially where the appellant’s claim was without merit.
Indeed, the appellant’s argument that he should avoid a costs order because of his now claimed objective and concomitant lack of interest in the compensatory outcome he sought is, in my view, so artificial in light of the appellant’s conduct of the proceeding below as to fortify the reasonableness of the Tribunal’s decision.
Conclusion
In all the circumstances I do not consider that the orders of the learned Tribunal Member of 21 April 2009 should be disturbed. Accordingly, I order that the appeal be dismissed with costs.
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