SOELBERG (FORMERLY VAN DROFFELAAR) and COMMISSIONER OF POLICE
[2008] WASAT 305 (S)
•25 MARCH 2009
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : HUMAN RIGHTS | ||
| ACT |
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| CITATION |
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| MEMBER |
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HEARD | : 11-14 FEBRUARY 2008 18-21 FEBRUARY 2008 25 FEBRUARY 2008 | ||
| DELIVERED |
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| SUPPLEMENTARY | |||
| DECISION |
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| FILE NO/S |
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| BETWEEN |
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AND
COMMISSIONER OF POLICE
First Respondent
DONALD LETTS
Second Respondent
[2008] WASAT 305 (S)
Catchwords:
Equal Opportunity Act 1984 (WA) - Unsuccessful applicant - Proceedings conducted unreasonably - Costs awarded - s 87 State Administrative Tribunal Act 2004 (WA)
Legislation:
Equal Opportunity Act 1984 (WA), s 8, s 10, s 11, s 35A, s 35B, s 67, s 161,
s 163
Legal Practitioners (Supreme Court) (Contentious Business) Determination
2006 (WA)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)
Result:
The applicant pay the respondents and the previously named respondents costs of $50,000
Category: B
Representation:
Counsel:
| Applicant | : | Self-represented |
| First Respondent | : | Ms L Eddy with Ms Cole |
| Second Respondent | : | Ms L Eddy |
Solicitors:
| Applicant | : | Self-represented |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training [2006]
WASAT 248
Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007]
WASAT 317
[2008] WASAT 305 (S)
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
Soelberg (formerly Van Droffelaar) and Commissioner of Police [2008]
WASAT 305
Soelberg and Commissioner of Police and Ors [2007] WASAT 214
Summerville and Department of Education [2006] WASAT 368
[2008] WASAT 305 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The applicant in this case, Ms Janell Louise Soelberg (formerly
Van Droffelaar) was employed by the respondent, the Commissioner of Police, as a police constable from 1999 to 2007. In 2006, she brought proceedings against the Commissioner of Police and eight individual officers under the Equal Opportunity Act 1984 (WA), based on numerous allegations.
2 There was a long history of proceedings in this matter with a number
of directions and other preliminary hearings culminating in a 9-day hearing before a Tribunal panel of three members. At the beginning of the hearing, the applicant’s counsel advised the Tribunal that Ms Soelberg was proceeding against only three of the respondents and that she did not intend to pursue six of her allegations against them. Further, at the close of proceedings, Ms Soelberg conceded that there was inadequate evidence to proceed with many of the allegations and limited her claim to three central allegations against only two respondents, the Commissioner of Police and retired sergeant, Mr Donald Letts.
The Tribunal dismissed all of Ms Soelberg’s allegations and sought submissions from the parties on costs.
4 On the issue of costs, the Tribunal found that the applicant had acted
unreasonably in prolonging the proceedings and awarded total costs of
$50,000 to the respondents and the previously named respondents.
Background
5 The applicant in these proceedings, Ms Janell Louise Soelberg,
(formerly Van Droffelaar) was employed by the first respondent, the Commissioner of Police, as a police constable from 1999 to 2007. She complained under the Equal Opportunity Act 1984 (WA) (EO Act) that after she became pregnant and notified her officer in charge of her pregnancy in January 2003, her employer treated her less favourably than others in the workplace. Ms Soelberg alleged that the Commissioner of Police (acting through Ms Soelberg's superior officers) subjected her to detrimental treatment due to her pregnancy, gender and family responsibilities, such as duty restrictions with loss of shift penalties and by placing her on parental leave when she was sick.
6 Ms Soelberg also claimed that the second respondent,
Mr Donald Letts, a retired sergeant, victimised her by writing what she
[2008] WASAT 305 (S)
says was a damaging and untruthful report about her, after becoming
aware that she may make an equal opportunity complaint.7 Ms Soelberg claimed that her health deteriorated as a consequence of
this treatment and she sustained a permanent psychiatric injury. She sought an apology, removal of reports and allegations from her personnel file, damages for loss of earnings and future medical expenses, and retraining. She also sought the maximum allowable award of damages under the EO Act.
8 There was a long history to the proceedings and Ms Soelberg had
made numerous allegations under the EO Act against variously, seven, eleven and ultimately nine respondents. There were three separate referrals from the Commissioner for Equal Opportunity to the Tribunal. However, there was still substantial confusion, particularly on the part of Ms Soelberg, about what and who had validly been referred to the Tribunal by the Commissioner for Equal Opportunity. This culminated in a preliminary hearing before Judge Eckert, when Ms Soelberg sought clarification of the allegations and which respondents had validly been referred to the Tribunal for inquiry; and the Commissioner of Police applied to strike out some of Ms Soelberg's allegations.
9 The detailed history of the proceedings and the Tribunal's findings on
those preliminary matters are set out in Soelberg and Commissioner of Police and Ors [2007] WASAT 214. The 'others' referred to in the citation are set out in the decision and are: Dudley Gaunt, Donald Letts, Lindsay Garratt, Bruce Clark, Stephen Stingemore, Domenic Staltari, Karl O'Callaghan and Matthew Ray.
10 In that preliminary hearing, based on the submissions before it, the
Tribunal decided that the Commissioner of Police, Sergeant Dudley Gaunt, Sergeant Donald Letts, Senior Sergeant Lindsay Garratt, First Class Constable Bruce Clark, Inspector Stephen Stingemore, Superintendent Dominic Staltari, Commissioner Karl O'Callaghan and Sergeant Matthew Ray were the proper respondents to these proceedings as they had been referred to the Tribunal by the Commissioner for Equal Opportunity. The Tribunal found that the Commissioner for Equal Opportunity had referred to the Tribunal for inquiry the Commissioner of Police for alleged breaches of s 11 (sex, pregnancy), s 35B (family responsibility) and s 67 (victimisation) of the EO Act and each of the other respondents named above for an alleged breach of s 67 of the EO Act and that those allegations and those respondents were therefore properly before the Tribunal. However, the Tribunal made no findings as
[2008] WASAT 305 (S)
to the evidence or the likely success of Ms Soelberg's application before
the Tribunal.11 At the preliminary hearing, the Tribunal dismissed the Commissioner
of Police's strike-out application on the ground that decisions by the
Tribunal regarding evidence were matters properly for the final hearing.12 During the course of the lengthy history of bringing these
proceedings to final hearing, the parties attended two compulsory conferences at the Tribunal, the Tribunal held 11 directions hearings and five preliminary hearings where the parties presented substantial arguments. A lot of these attendances were held to assist Ms Soelberg and her various representatives to distil her claims and specific allegations, and to ascertain the correct respondents to the proceedings. This time taken was in addition to investigation and conciliation conferences at the Equal Opportunity Commission before the first referral, and then ongoing discussions between the parties and the EO Commissioner after referral to this Tribunal.
13 Ultimately, the allegations came before the Tribunal for
determination by way of a hearing to be held over 10 days from 11 to 26 February 2004, however, the hearing was completed in nine days on 25 February 2008. The final hearing began on Monday 11 February 2008. At that point there were eight named respondents who attended for the hearing rather than nine, as Ms Soelberg had not pursued her claim against First Class Constable Clark.
In Ms Soelberg's 'substituted combined statement of issues, facts and contentions' dated 16 January 2008 (combined statement), she set out 19 separate allegations (which she called complaints); each separate allegation named the various respondents Ms Soelberg says committed the allegedly unlawful conduct, and after reciting each allegation in detail she set out the damages she claimed from each respondent. Ms Soelberg also claimed damages from the Commissioner in his corporate capacity as being vicariously liable for the conduct of his officers.
15 At the commencement of the final hearing, Ms Soelberg's counsel,
Mr Stubbs, advised the Tribunal that Ms Soelberg would not be proceeding with her claims of victimisation against Sergeant Gaunt, Senior Sergeant Garrett, Superintendant Staltari, Commissioner O'Callaghan (personally) and Sergeant Ray. Mr Stubbs informed the Tribunal that Ms Soelberg would not pursue what she had referred to in the combined statement as the eighth complaint, ninth
[2008] WASAT 305 (S)
complaint, tenth complaint, fifteenth complaint, seventeenth complaint and nineteenth complaint; nor did she wish to continue with the victimisation component of the twelfth complaint, thirteenth complaint and fourteenth complaint as identified in [126], [138] and [147] respectively of the combined statement. On the Friday evening before, Mr Stubbs advised the respondents' counsel that this outcome was being considered. The Tribunal was not advised until the hearing.
16 It was not clear at the time, but it seemed to follow, particularly from
[192] and [193] of the combined statement, that Ms Soelberg intended to abandon those victimisation allegations as against the individual officers but to continue with those victimisation allegations as against the Commissioner rather than against the individual officers, on the basis, she claimed, that the Commissioner was vicariously liable for the officers' conduct under s 161 and s 163 of the EO Act.
17 We then heard the matter over nine days, with the only respondents
being the Commissioner of Police in his corporate capacity, Mr Letts and Inspector Stingemore. The allegation against the Commissioner of Police was that he was vicariously liable for all of the allegations set out in the combined statement which covered a long series of events beginning in January 2003, and that he therefore discriminated against Ms Soelberg under s 8 (sex), s 10 (pregnancy) and s 11 (unlawful discrimination) and s 35A and s 35B (family responsibility) of the EO Act and that he is liable under s 67 for the allegations of conduct constituting victimisation.
18 Mr Letts remained potentially liable for what Ms Soelberg referred to
as discriminatory conduct in preparing a report known as 'the Letts report'.
19 Ms Soelberg alleged that Inspector Stingemore victimised her by
denying her right to have a support person with her when she met with Inspector Stingemore; that he victimised her by denying her a transfer to a station of her choosing; and that he victimised her by informing the officer in charge of the station to which she was transferred, of her unresolved equal opportunity complaints.
20 In her written closing submissions, Ms Soelberg conceded there was
inadequate evidence to proceed with many of the allegations and that her claim related to only three allegations. Though not clearly stated, it also appeared from those submissions that the only remaining respondents were the Commissioner of Police and Mr Letts. However, the precise nature of Ms Soelberg's allegations remained somewhat unclear.
[2008] WASAT 305 (S)
21 Despite having substantially narrowed her claim, the Tribunal
dismissed all of Ms Soelberg's allegations - see Soelberg (formerly Van
Droffelaar) and Commissioner of Police [2008] WASAT 305.22 In our decision we held that even at its highest possible
interpretation, Ms Soelberg's evidence was not sufficient to prove her claims. Ms Soelberg failed to prove that the Commissioner of Police, through his officers, treated her less favourably than any officer in the same or similar circumstances. Ms Soelberg was unable to prove any causal connection between the grounds of discrimination alleged and the decisions or acts of which she complained. We also held that we did not have jurisdiction to hear some of the allegations as they were not referred to the Tribunal by the Commissioner for Equal Opportunity.
23 Ms Soelberg also failed to prove that she was victimised by the
second respondent, Mr Letts. There was no evidence that Mr Letts intended to cause Ms Soelberg detriment or that there was any causative link between his report on Ms Soelberg and Ms Soelberg's (then) potential equal opportunity complaint. As referred to above, Ms Soelberg abandoned her claim against Inspector Stingemore in her written closing submissions.
24 The Tribunal sought submissions from the parties on costs. On
25 March 2009 the Tribunal delivered an oral decision and reasons regarding costs. These are the edited written reasons that reflect the grounds of our decision to order costs payable to the respondents and former respondents.
Ms Soelberg’s submissions
25 In her written submissions on costs, Ms Soelberg contended that no
award of costs should be made against her, as under s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), parties generally bear their own costs in a proceeding before the Tribunal. Ms Soelberg cited Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317 at [47] and argued that the Tribunal should only exercise its discretionary power to award costs under s 87(2) of the SAT Act where:
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. The Tribunal might also make an order for costs where a matter has been brought vexatiously or for improper purposes.
[2008] WASAT 305 (S)
26 Ms Soelberg argued that the Tribunal should not award costs against
her because any unnecessary prolonging of the hearing was not caused by her. She argued that any delay was caused by the Equal Opportunity Commission in failing to properly refer her complaints to the Tribunal, by her legal representatives in failing to properly advise her as to the scope of her claim and by the respondents who refused to negotiate with her or make an offer of settlement.
27 Ms Soelberg asserted that her claim was neither capricious nor an
abuse of power, as at a preliminary hearing, the Tribunal dismissed the respondents’ application to have part of her claim struck out and ordered that the nine respondents were the proper respondents. Ms Soelberg’s written submissions on costs then stated that discontinuing her claim against six of the respondents on the first day of the hearing was in fact reasonable as she received the respondents’ amended statement of issues, facts and contentions only three weeks before the hearing date. She contended that it was not until she had read this document that she was aware of the respondents’ response to her claim.
28 Ms Soelberg further contended that the Tribunal should not make an
award of costs against her as she would be unable to pay any amount
ordered.
The respondents’ and previously named respondents’ submissions
29 In their written submissions the respondents and previously named
respondents (respondents) acknowledged that the Tribunal is generally a ‘no cost’ jurisdiction. However, the respondents argued that the Tribunal should exercise its broad discretion and award costs under s 87(2) of the SAT Act in this case. The respondents argued that Ms Soelberg pursued a claim that was clearly untenable or which no reasonable person would have believed could be successful: Summerville and Department of Education [2006] WASAT 368 at [37] - [38].
30 The respondents contended that the allegations made against the
individual police officers were frivolous, vexatious, capricious and unreasonable. The respondents argued that Ms Soelberg was warned that not all of the previously named respondents should be joined to the proceedings and that Ms Soelberg’s complaints could not be sustained. In addition, by limiting the scope of her claims immediately before and after the hearing, Ms Soelberg caused all respondents needless expense and she unnecessarily prolonged the hearing.
[2008] WASAT 305 (S)
31 The respondents further maintained that issues concerning a person’s
financial situation are irrelevant considerations in determining whether or not the Tribunal should exercise its discretion to award costs under s 87(2) of the SAT Act.
32 To assess the amount of any costs award made, the respondents
submitted that the Tribunal must make a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case. Following that rationale and guided by the scale of costs prescribed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA), the respondents argued that costs of $72,040.20 was reasonable, having regard to the amount of legal work that was required in this matter and the numerous, ultimately unnecessary witnesses and documents the respondents were required to prepare: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 at [7].
Tribunal’s findings
33 We have given this decision very close consideration and are very
troubled by it. As noted by both parties, under s 87 of the SAT Act this is a cost-free jurisdiction. However, the cases in which this Tribunal has awarded costs have developed into a body of case law which establishes that the Tribunal not only can, but should, make a costs order where a party has conducted themselves in such a way as to unnecessarily prolong a hearing or has acted unreasonably or inappropriately in the conduct of the proceedings: Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [84] - [85]; Commissioner for Equal Opportunity and Alcoa of Australia Ltd.
34 Ms Soelberg would have us draw a distinction here between the
conduct of a party and the conduct of that party’s solicitor; however, we do not draw that distinction. A party and their lawyer have a private arrangement and that is between them. What we look at is the relationship between party and party and in our view these proceedings were conducted unreasonably and inappropriately by Ms Soelberg.
35 We have also considered whether or not costs should be awarded
against Ms Soelberg on the basis that she maintained proceedings that should not have been maintained against parties where there was no case to answer. In this case, the Tribunal had gone to some trouble during the preceding months to warn Ms Soelberg about expanding the proceedings and the difficulties with her many allegations. In our view, the individual
[2008] WASAT 305 (S)
officers should never have been named and many of the allegations should never have been made; Ms Soelberg pursued a claim which was clearly untenable and which no reasonable person would have believed could be successful.
36 An extraordinary amount of time was put into these proceedings.
For two years prior to the hearing the matter went back and forth, working out who should be respondents and requesting the Commissioner for Equal Opportunity to re-refer matters. Throughout this process the respondents consistently argued that the individual officers should not be joined to the action and that the complaints could not be sustained even if all matters alleged by the applicant were proved. It was only on the morning of the hearing that the applicant dropped the majority of named respondents from the proceedings.
37 It is our view that if it was apparent that six of the allegations could
not proceed on the morning of the hearing, it was also apparent well in advance of the hearing date. The applicant should have made the decision to limit her allegations a lot earlier; no reasonable person would have believed the claim could have been successful against a number of the respondents.
38 We then had a very lengthy and complex hearing with a large
number of witnesses, including the Commissioner of Police. At the conclusion of the hearing, Ms Soelberg again proceeded to limit her allegations and conceded that there was insufficient evidence to sustain all but three of her numerous complaints against only two of the respondents. This conduct by the applicant means that considerable cost was incurred by both the respondents and the Tribunal and a substantial amount of the evidence that was either led or defended need never have come before us.
39 So we had, first of all, the level of unreasonableness on the morning
of the first day of the final hearing when the basis of the application was fundamentally changed and allegations against most of the respondents were abandoned. This was despite the applicant and her legal advisors having had two years and numerous opportunities to closely consider the merits and the extent of the allegations. We then had the position at the end of the hearing where the applicant again said she was not going to proceed with certain allegations; an appraisal of the case had finally been undertaken but it really should have been made a long time before the proceedings went to final hearing. In her written closing submissions, Ms Soelberg again amended the application against another respondent and reduced the claim to three allegations.
[2008] WASAT 305 (S)
40 Ms Soelberg seeks to attribute some liability for her predicament to
the Tribunal. She contends that at preliminary hearings the Tribunal joined all the parties and dismissed the strike-out claim by the respondent. As can be seen from the reasons in Soelberg and Commissioner of Police and Ors [2007] WASAT 214 the Tribunal was assisting Ms Soelberg to define what was validly before the Tribunal as having been referred by the Commissioner for Equal Opportunity. The Tribunal did not at that point deal with the merits of Ms Soelberg's claim. It could not do so until it had heard the evidence. It was Ms Soelberg's obligation to assess the merits of her claim well before hearing.
41 For the above reasons, we find that the applicant Ms Soelberg
conducted the proceedings unreasonably and the proceedings were unnecessarily prolonged. The applicant is therefore ordered to pay the respondents’ costs.
Quantum of costs
42 The respondents submitted that their costs were $139,137 but
claimed only $72,040.20. However, they did make an offer for the applicant to settle costs at $50,000. On that basis, we make an order that an award of costs is payable by the applicant in favour of the respondents for $50,000 pursuant to s 87 of the SAT Act.
| Order |
The Tribunal orders that the applicant pay the respondents and the previously named respondents' costs of $50,000.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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