Summerville and Department of Education and Training & Ors
[2006] WASAT 368 (S)
•15 DECEMBER 2006
| JURISDICTION | : STATE ADMINISTRATIVE TRIBUNAL | ||
| STREAM | : HUMAN RIGHTS | ||
| ACT |
| ||
| CITATION | : SUMMERVILLE and DEPARTMENT OF |
EDUCATION & TRAINING & ORS
[2006] WASAT 368 (S)
| MEMBER | : | JUSTICE M L BARKER (PRESIDENT) |
| HEARD | : | 5 FEBRUARY 2007 AND DECIDED ON THE DOCUMENTS |
| DELIVERED | : 15 DECEMBER 2006 | ||
| SUPPLEMENTARY | |||
| DECISION | : 5 APRIL 2007 | ||
| FILE NO/S |
| ||
| BETWEEN | : AMBER SUMMERVILLE |
Applicant
AND
DEPARTMENT OF EDUCATION & TRAINING
First Respondent
ASHLEY JOYCE
Second Respondent
STEPHEN FURTADO
Third Respondent
[2006] WASAT 368 (S)
Catchwords:
Equal opportunity - Unproved allegations of sexual harassment - Unproved allegations of "sex based harassment" - Applicant's evidence unreliable - Applicant's evidence implausible - Costs
Legislation:
Equal Opportunity Act 1984 (WA), s 11, s 24
Family Law Act 1975 (Cth)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4)
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 109, s 109(3)
Result:
Partial costs awarded to third respondent
Category: B
Representation:
Counsel:
| Applicant | : | Self-represented |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | Mr MD Cox |
Solicitors:
| Applicant | : | Self-represented |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | Mark Cox Barrister & Solicitor |
Case(s) referred to in decision(s):
Ashton v Wall (1993) EOC 92-488
Chew and Director General of the Department of Education and Training [2006]
WASAT 248
Ciciulla v Curwen-Walker (No 2) (1998) EOC 92-935
[2006] WASAT 368 (S)
Gonsalves v MAS National Apprenticeship Services [2007] VCAT 64
Holdaway v Qantas Airways Ltd (1992) EOC 92-395
Kwa v Secretary for Local Government (1988) EOC 92-231
Penfold v Penfold (1980) 144 CLR 311
Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 1060
Squires v Qantas Airways Ltd (No 1) (1985) EOC 92-135
Styles v Murray Meats Pty Ltd [2005] VCAT 2142
Summerville and Department of Education & Ors [2006] WASAT 174
Summerville and Department of Education [2006] WASAT 368
Tanglemayer v FAI Workers Compensation (Victoria) Pty Ltd (Anti
Discrimination List No M4 of 1998, 16 December 1998)
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341
Willis v State Rail Authority of New South Wales (No 3) (1992) EOC 92-456
Wilson v Phoenix Contracting Services (1998) EOC 92-936
Wilson v Phoenix Contracting Services Pty Ltd [1998] VSC 81
[2006] WASAT 368 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 On 17 November 2006, the Tribunal dismissed proceedings against
three respondents, in which the applicant made allegations of sexual harassment and "sex based" harassment. In its written reasons published on 15 December 2006, the Tribunal found that the applicant's evidence could not be relied upon and that, at their highest, the allegations made against the third respondent could not lead to a finding of sexual harassment. The third respondent applied for an order that the applicant pay his costs in excess of $23 000.
2 The Tribunal recognised that, in appropriate circumstances, it could
make an order for costs against a party. The Tribunal was satisfied that, despite the Tribunal's "no cost" starting out position, the circumstances of this matter justified an award of costs against the unsuccessful applicant. The Tribunal acknowledged the fact the applicant was self-represented, but found that she failed to give any proper attention to the basis of her claim against the third respondent. The Tribunal noted that the allegations against the third respondent, even if they had been substantiated, were insufficient to prove discrimination under the Equal Opportunity Act 1984 (WA) by the third respondent.
3 In the circumstances, the Tribunal ordered that the applicant
| contribute to the costs incurred by the third respondent in the sum of $7500. |
| Issue |
4 The issue the subject of this decision is whether, in the main
proceedings commenced by the applicant (Ms Summerville) against the third respondent (Mr Furtado), Mr Furtado is entitled to an order for costs against Ms Summerville, the Tribunal having discussed those proceedings after hearing.
| Facts | |
| 5 | Ms Amber Summerville made allegations of sexual harassment and |
| "sex based" harassment against the Department of Education and Training (the Department) (first respondent), Mr Ashley Joyce (second respondent) and Mr Stephen Furtado. On 17 November 2006, the Tribunal dismissed the proceedings against each respondent. It also ordered that the respondents would be at liberty to apply for any consequential orders following the delivery of the written reasons for decision. |
[2006] WASAT 368 (S)
6 On 15 December 2006, the written reasons for decision were
published. In short, insofar as the proceedings against the first and second respondents were concerned, the Tribunal determined that the complaints of Ms Summerville should be dismissed as her evidence could not be relied upon.
7 In the reasons for decision, Summerville and Department of Education [2006] WASAT 368, the Tribunal made a number of findings concerning Ms Summerville's evidence:
• At [153] the Tribunal described Ms Summerville's account of key events "often to be implausible and unreliable". • At [154] the Tribunal found in relation to the allegations made in respect of Mr Joyce that "we are not satisfied that the events as described by Ms Summerville ever took place". • At [145] the Tribunal observed that "what emerged from the totality of the evidence is that Ms Summerville is a person prone to exaggeration, who misinterprets events and relationships and whose account of events concerning her own interests cannot be relied upon".
Insofar as the allegations made in respect of Mr Furtado were concerned, the Tribunal found at [161] that:
"Even if all the allegations made in respect of Mr Furtado, of insubordination, failure to follow college practices and policies about photocopying and such like, rudeness to staff or students, asking students to dress up as pimps and prostitutes, writing cryptic messages on a whiteboard and offensive emails, were substantiated, they do not lead to a finding that Ms Summerville had been sexually harassed by Mr Furtado."
The Tribunal at [162] found that the complaint of Ms Summerville was, in this respect, "misconceived".
10 At [169] the Tribunal said that it accepted that Mr Furtado was
probably rude, insubordinate and resistant to Ms Summerville's attempts to manage him, but that none of this amounted to sexual harassment or sex discrimination.
[2006] WASAT 368 (S)
Contentions
11 No claim for costs was made on behalf of the first or second
respondents. However, Mr Furtado made a claim for costs incurred in instructing counsel who appeared for him at the hearing of the matter, as well as by the solicitor who had earlier been instructed in relation to the matter. Itemised invoices were produced to support the claim for costs in the total sum of $23 475.
12 Counsel for Mr Furtado acknowledged that ordinarily the
proceedings in the Tribunal under the Equal Opportunity Act 1984 (WA) (EO Act) do not result in costs orders being made against an unsuccessful party: see State Administrative Tribunal Act 2004 (WA) (SAT Act), s 87(1). However, he noted that the Tribunal had a general discretion to award costs under s 87(2) and submitted that, in the circumstances of this case, costs should be awarded against the unsuccessful applicant.
13 Counsel noted that the applicant had alleged in her application to the
Tribunal that the third respondent had sexually harassed her, contrary to s 24 of the EO Act and sexually discriminated against her, contrary to s 11 of the EO Act.
14 Counsel further submitted that the applicant had not sought to join
the third respondent in her original complaint to the Equal Opportunity Commission, and that the matter was not resolved through conciliation before the Equal Opportunity Commission. However, the applicant's complaint was dismissed by the Commissioner for Equal Opportunity. The applicant then caused the matter to be referred to the Tribunal under the EO Act. The applicant then successfully sought to have the third respondent joined as a party.
15 Counsel then drew attention to the fact that the third respondent
applied to have the complaints against him struck out on the basis that, taken at their highest, they did not disclose any breach of the EO Act by him. While not successful before the hearing, because the Tribunal considered that the matter would best be resolved at the hearing given the mixed questions of fact and law raised by the strike out application, the ultimate findings of the Tribunal were substantially to the effect that, taken at their highest, the complaints did not disclose any breach of the EO Act by the third respondent.
16 Counsel for Mr Furtado says his client was put to enormous
inconvenience and expense in preparing for and appearing at the hearing of the complaint over five days and that the costs claimed are modest
[2006] WASAT 368 (S)
given the length of time and amount of work put into defending the
complaints against him.17 In his oral submissions to the Tribunal, counsel for Mr Furtado said
that the Tribunal's discretion to award costs should be enlivened by the
following considerations:
• the nature of the complaint against the third respondent and the manner in which Ms Summerville conducted the proceedings which unnecessarily prolonged the proceedings; • that by casting aspersions which were not upheld by the Tribunal, the proceedings constituted an abuse of process; and • insofar as Mr Furtado was concerned, the Tribunal found that, taken at their highest, there was no claim made out against him.
18 Ms Summerville made oral submissions on the hearing of the costs
application opposing the making of any order, principally on the basis that she had always understood that proceedings in the Tribunal would not result in an order for costs against her, that she had not unnecessarily prolonged any proceedings, that she had not acted vexatiously and that she had not engaged in any abuse of process.
19 Insofar as the maintenance of the proceedings against Mr Furtado
was concerned, she said that she had been advised by an officer of the first respondent that she could complain about "sex based harassment". But for that advice she would not have maintained the proceedings.
20 In subsequent written submissions on costs, Ms Summerville
developed these points further. As to the complaint that she unnecessarily prolonged the hearing, in essence she said that she did all that was required of her, was self-represented and had a large number of documents to deal with.
21 Insofar as the allegation of abuse of process was concerned, she
denied that she had attempted to bolster a workers' compensation claim by
casting aspersions against the persons party to those proceedings.22 Insofar as the claim of not being able to make a case out against
Mr Furtado was concerned, she says that Mr Furtado was joined as a party at the instigation of Her Honour Deputy President Judge Eckert at a
[2006] WASAT 368 (S)
preliminary hearing and that in the circumstances she was entitled to
maintain the proceedings.
The discretion as to costs
23 The position in relation to costs in the Tribunal is now reasonably
well understood. The starting out position is that the Tribunal provides a "no cost" jurisdiction. That understanding derives from s 87(1) of the SAT Act. However, the Tribunal has a broad discretion to award costs in appropriate cases: s 87(2).
24 In review proceedings in the Tribunal – which the present
proceedings were not – the Tribunal is given some instruction as to matters that might be relevant to the exercise of the discretion, namely, whether the parties seeking review genuinely attempted to enable and assist the decision-maker to make a decision on the merits and whether the decision-maker genuinely attempted to make a decision on its merits: s 87(4).
25 The possible circumstances in which the Tribunal might make a costs
order have been discussed in a number of cases: see generally Uniting
Church Homes (Inc) and City of Stirling [2005] WASAT 341.26 The principles as generally stated have also been applied in relation
to proceedings in the Tribunal under the EO Act. In Chew and Director General of the Department of Education and Training [2006] WASAT 248, the Tribunal (Her Honour Deputy President Judge Eckert presiding) observed the starting out position under s 87(1) and s 87(2) of the SAT Act: see [84]. The Tribunal at [85] observed:
"We take the view that in proceedings under the [SAT] Act, the Tribunal should not generally make an award for costs unless 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 as to costs where a matter has been brought vexatiously or for improper purposes."
27 I think, generally speaking, that this statement provides a useful
guide to the circumstances in which costs might be awarded in a proceeding under the EO Act. However, it is understood that these remarks were made in a context in which it was recognised that the particular circumstances in which costs might be awarded are not
[2006] WASAT 368 (S)
enumerated in s 87(2). It would, therefore, not be appropriate for the Tribunal to attempt finally to delineate the particular circumstances in which the discretion to award costs will be exercised.
28 The question whether costs should be awarded in a context like that
which arises here, has arisen in like tribunals in the past, where there was a general understanding that under the enabling legislation costs should not be awarded, except in appropriate circumstances.
29 Some tribunals operate under enabling legislation that attempts to
provide more guidance than does the SAT Act as to the circumstances in which costs should be awarded. For example, under s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Victorian Civil and Administrative Tribunal (VCAT) may award costs in a matter "if satisfied that it is fair to do so". In determining a costs application, s 109(3) requires VCAT to have regard to:
• whether the party's conduct unnecessarily disadvantaged any other party, for example, by failing to comply with an order or the Act, causing an adjournment, attempting to deceive another party or the Tribunal, or conducting the matter vexatiously; • whether the party unreasonably prolonged the matter; • the relative strengths of the parties' cases; and • the nature and complexity of the case.
30 Most of the factors set out in s 109(3) of the Victorian Act are
matters that will fall for consideration in the exercise of the Tribunal's discretion under s 87(2) of the SAT Act. However, it may be doubted whether the nature and complexity of the case would ordinarily be a factor under the SAT Act. This is not the occasion, however, finally to decide that issue.
31 But even without legislative guidance of the type that s 109 of the
Victorian Act provides, there are many decisions of courts and tribunals based on cost regimes similar to that created by s 87(1) and s 87(2), that show that in appropriate circumstances costs may be awarded.
32 For example, in Penfold v Penfold (1980) 144 CLR 311, the High Court of Australia found that costs were properly awarded against the respondent – a husband who was found to have misrepresented his
[2006] WASAT 368 (S)
financial position to the court at the commencement of the action, putting the applicant wife to much expense in investigating and establishing the true position - notwithstanding that under the Family Law Act 1975 (Cth), as it applied at the time, costs ordinarily would not be awarded in family law proceedings. Justice Murphy at 318 observed that:
"[c]ourts should regard such circumstances which tend to undermine the integrity of proceedings with great concern, and should do everything in their power to determine who is responsible in order to maintain that integrity."
33 In Ashton v Wall (1993) EOC 92-488, a workplace sexual harassment case, the former Equal Opportunity Tribunal of Western Australia made a decision that turned on the credibility of the witnesses. The Tribunal preferred the evidence of the respondent employer and gave little weight to that of the complainant employee, but stated that a lack of credibility was insufficient to justify an adverse costs award: at 79,527. The Tribunal refused to award costs against the unsuccessful complainant, noting that the consensual sexual relationship which existed between the alleged acts of harassment and the trial was likely to have confused the complainant and thus rendered her lack of credibility less egregious.
34 However, in Wilson v Phoenix Contracting Services Pty Ltd [1998] VSC 81, costs were awarded against an unsuccessful sexual harassment complainant where the complainant's evidence was not to be preferred over that of other witnesses, was described as "implausible" and was inconsistent with the documentary evidence: at [5].
35 One can understand that in circumstances where a sexual harassment
complaint is totally without foundation and the application is dismissed on that basis – where credibility is at the heart of the matter – that may well be a proper ground upon which a tribunal decides to award costs. After all, the EO Act, and other Acts like it, is not intended to provide a mechanism for the maintenance of baseless accusations against innocent persons. Given the often lengthy nature of hearings that arise in such circumstances, and the need often felt by responding parties to obtain legal representation to vindicate their reputations, it will often not be unreasonable for an award of costs to be made. In doing so, a tribunal would be acting to ensure that such proceedings do not undermine the integrity of proceedings under an Act, the matter of great concern identified by Murphy J in Penfold v Penfold.
[2006] WASAT 368 (S)
36 In relation to the question of an incredible or implausible case that
has no foundation in fact, or a case that is adjudged as being so weak that it should not have been maintained, the relative weakness of the unsuccessful party's case has also resulted in the award of costs against that party: see Gonsalves v MAS National Apprenticeship Services [2007] VCAT 64, in which the applicant's sexual harassment claims were described at [15] as based on a "flimsy premise". See also Styles v Murray Meats Pty Ltd [2005] VCAT 2142 at [21]. These latter Victorian cases, however, it should be noted, were decided by reference to s 109(3) of the Victorian Act which requires the Victorian tribunal to consider "the relative strengths of the parties' cases".
37 Nonetheless, in my view, proceedings that should not have been
maintained against a party because there really was no case to answer, is a fact that may be taken into account by this Tribunal in deciding whether to award costs against the unsuccessful party who maintained that case.
38 It has also been held that it may be appropriate to award costs against
a party who pursues a claim which is clearly untenable or which no reasonable person would have believed could be successful: see Tanglemayer v FAI Workers Compensation (Victoria) Pty Ltd (Anti Discrimination List No M4 of 1998, 16 December 1998). In Wilson v Phoenix Contracting Services (1998) EOC 92-936 the Victorian Anti-Discrimination Tribunal observed at [2]:
"[If the complainant] did have a bona fide belief in the genuineness of his own claim, it was so lacking in any real foundation that he should never have brought it ..."
39 Other cases show that conduct of parties that is unreasonable or
embarrassing and not based on any genuine belief in the nature of the case, may also result in an award of costs being made against that unsuccessful party. For example, in Squires v Qantas Airways Ltd (No 1) (1985) EOC 92-135, the respondent employer was deemed to have acted unreasonably in failing to provide proper discovery and arguing a point which had no "real substance", both being things that unnecessarily prolonged the matter: 76,340.
40 For similar reasons, costs have also been awarded against an
unsuccessful party who subjected the successful party to "rigorous and sometimes embarrassing cross-examination": see, for example, Gonsalves v MAS National Apprenticeship Services at [15].
[2006] WASAT 368 (S)
41 In the former Equal Opportunity Tribunal of Western Australia, a
successful applicant was awarded costs in relation to a claim of racial discrimination in the workplace. The Tribunal commented that an employee of the respondent had "severely embarrassed" the applicant and suggested this was an additional ground for the award of costs against the respondent: Kwa v Secretary for Local Government (1988) EOC 92-231 at 71,177.
42 In Ciciulla v Curwen-Walker (No 2) (1998) EOC 92-935, the fact that the unsuccessful respondents were subjected to unwelcome publicity during the trial was given as a reason for refusing the applicant's request for costs.
43 Additionally, a party who has acted with malice in pursuing or
defending proceedings may well have costs awarded against them. The fact that a party believes that he or she acted appropriately and had an arguable case may be insufficient to prevent the costs order being made: see Holdaway v Qantas Airways Ltd (1992) EOC 92-395 at 79,054; Willis v State Rail Authority of New South Wales (No 3) (1992) EOC 92-456 at 79,282.
44 In some cases a further factor deemed to support a successful
complainant's application for costs has been the public interest nature of the proceedings. In Squires and Qantas Airways Ltd the complainant, although profiting from her proceedings, also established a principle relevant to other women in her position. At 76,341 the Tribunal noted the injustice of the complainant bearing the considerable costs of the action while others enjoyed the benefit. That said, not every anti-discrimination action will be considered to contribute to the development of the law albeit for the benefit of a broader class of persons and will not be characterised as public interest litigation: see Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 1060 per Drummond J at [12].
Exercise of costs discretion in this case
45 As noted above, no claim for costs is made by the first and second
respondents. It is only the third respondent, Mr Furtado, who makes the claim for costs. Mr Furtado, as noted, was effectively roped into these proceedings by being made a respondent to the proceedings. That happened when the applicant maintained allegations against Mr Furtado that she alleged were part and parcel of her original complaint to the Equal Opportunity Commission. In a preliminary ruling in these proceedings, Summerville and Department of Education [2006] WASAT
[2006] WASAT 368 (S)
174, I accepted that in Ms Summerville's initial complaint under the EO Act she had alleged sexual harassment and sex discrimination against not only Mr Joyce but also Mr Furtado. I ruled, at [38], that, so far as the application to be removed as a party made on behalf of Mr Furtado was concerned, it seemed to me, on the facts alleged, that he, along with Mr Joyce, was always the subject of complaint and the fact that he may or may not have been expressly referred to by the Commissioner for Equal Opportunity in her report or on other documents, was not relevant to the question of whether he was a party and should remain a party.
46 At [39], I explained that in my view, because the primary objects of
the complaint of the applicant expressly were and remained Mr Joyce and Mr Furtado, they should remain parties to the proceedings. The fact that each of them at material times was employed by the Director General of the Department of Education and Training properly meant that the Director should also be and remain a party. But whether or not the Director General had vicarious responsibility for the conduct of Mr Joyce and Mr Furtado at material times was not determinative at that stage of who parties should or should not be.
47 At [40], I made the point that the simple fact was that allegations
were made against Mr Furtado and it was necessary for him to be a party
to the proceedings. I observed at the time that:"This may be unfortunate from his point of view as it may mean that he has to incur additional expense in responding to the proceedings. Nonetheless, in order properly to dispose of the allegations that have been referred to the Tribunal ... the Tribunal is effectively obliged to treat the applicant, Mr Joyce, Mr Furtado and the Director General ... as necessary parties to the proceedings."
48 In the event, as explained above, the Tribunal found, after a lengthy
hearing of five days involving all allegations, that taken at their highest, and accepting them to be the case for the sake of argument, the allegations made by Ms Summerville against Mr Furtado did not support any ground of complaint under the EO Act.
49 In my view, this is a case where the Tribunal's discretion to award
costs under s 87(2) of the SAT Act should be exercised in favour of the third respondent against the unsuccessful applicant. The reasons for that are that Ms Summerville had a number of opportunities to decide not to press her claims against Mr Furtado. Those claims seem to be have been
[2006] WASAT 368 (S)
based on her view that Mr Furtado would not do what she required of him when she was his up-line coordinator and that he only behaved in this way because she was a woman. Additionally, Ms Summerville also believed, from information given to her by others, that Mr Furtado had not treated some female students in his class appropriately.
50 At all times, Ms Summerville insisted that her complaints against
Mr Furtado should be maintained in the Tribunal, notwithstanding the attempts by Mr Furtado not to be joined in the first instance and later on, before the hearing, to be removed as a party. Ms Summerville actively opposed the strike out application before the hearing.
51 In the event, Mr Furtado has successfully defended the complaint
against him. His success is against the background I have just described. Even though Ms Summerville was self-represented in the proceedings, she failed to give any proper attention to the true basis of her claim against Mr Furtado. She simply desired to maintain in the Tribunal all the allegations she originally made to the Equal Opportunity Commission, regardless of their status under the EO Act as a ground for discrimination.
52 In my view, parties who require their complaints to be transferred to
the Tribunal by the Commissioner for Equal Opportunity in circumstances where the Commissioner has already found those allegations to be without substance, should not be entitled to maintain proceedings that do not have any reasonable chance of success without being at risk of a costs order being made against them.
53 In this case, I consider that, whilst the starting out position in the
Tribunal is that it is a "no cost" jurisdiction, the circumstances of this particular case, where Ms Summerville maintained the proceedings against Mr Furtado in circumstances in which, taken at their highest, there was no cause for complaint against Mr Furtado under the EO Act, should result in her contributing towards the costs incurred by Mr Furtado.
54 As far as the exercise of that discretion of costs is concerned,
Mr Furtado has claimed reimbursement of his legal expenses in excess of $23 000. While Mr Furtado needed to participate in the hearing over five days, not all of the hearing was relevant to Ms Summerville’s claims made against him. I think in all the circumstances of the case, an award of costs in the sum of $7500 – about a third of the claimed costs - is fair and reasonable.
In these circumstances, I make the following order:
[2006] WASAT 368 (S)
1. The applicant, Amber Summerville, pay to the third respondent, Stephen Furtado, the sum of $7500 by way of costs as a contribution to the legal expenses incurred by Mr Furtado in defending the proceedings brought against him by the applicant.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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