Tytler v GSL Custodial Services Pty Ltd

[2004] SAEOT 3

EQUAL OPPORTUNITY TRIBUNAL

(District Court Administrative and Disciplinary Division)

TYTLER v GSL CUSTODIAL SERVICES PTY LTD & ANOR

Judgment of His Honour Judge Muecke

10 December 2004

ADMINISTRATIVE LAW - PARTICULAR TRIBUNALS OR BODIES

Equal Opportunity Tribunal - costs.

TYTLER v GSL CUSTODIAL SERVICES PTY LTD & ANOR
[2004] SAEOT 3

1. On 10 November 2004 I published reasons for dismissing the proceedings in this matter. I held that none of the complaints made by Mr Tytler attracted the jurisdiction of the Equal Opportunity Tribunal under s86 or s87 of the Equal Opportunity Act, 1984.

2. The First Respondent applied for an order that Mr Tytler pay its costs. Written submissions by both the First Respondent and Mr Tytler were received and considered by me. I also received an “Application for specific directions” from Mr Tytler under letter dated 22 November 2004. In that Application Mr Tytler sought “specific direction in regards to ‘striking out’ the First Respondents submission for the issue of costs”. Furthermore, Mr Tytler asked the Tribunal to dismiss the First Respondent’s Application for costs pursuant to s96(2)(a) of the Equal Opportunity Act as its Application was both frivolous and vexatious. Mr Tytler sought costs in regard to his Application for specific directions, pursuant to s26(1)(a) of the Act.

3. Before dealing with these issues I need to correct one aspect of my reasons of 10 November 2004.  In para 40 of my reasons I wrote that even if any of Mr Tytler’s complaints pursuant to s86 of the Act fell within that section I considered that they were such to warrant dismissal by the Tribunal as I considered them trivial and lacking in any substance.  That was reflected in the headnote to my reasons.  It was not however reflected in para 50 of my reasons.  There, I erroneously referred to ss96 and 97 of the Act rather than ss86 and 87 of the Act.  Furthermore, I referred to Mr Tytler’s complaints under s96 of the Act as being trivial, vexatious and lacking in any substance.  That was an error.  It was inconsistent with my previous conclusion in para 40 of my reasons.

4. I correct my reasons of 10 November 2004 by deleting the word “vexatious” from para 50 and correcting the sections of the Act referred to so that reference is properly made to ss86 and 87 rather than ss96 and 97.

5. Section 26 of the Equal Opportunity Act 1984 provides that the Tribunal may make an order for costs in any proceedings where in the opinion of the Tribunal the proceedings are frivolous or vexatious, or where, in the opinion of the Tribunal, the proceedings have been instituted or prosecuted for the purpose of delay or obstruction.

6. I have not found that Mr Tytler’s proceedings were vexatious although it may be said with some justification that my characterisation of some part of Mr Tytler’s complaints as being trivial and lacking in any substance could fall within the description “frivolous”.

7. However, I was there referring only to part of Mr Tytler’s complaints, those under s86 of the Act. I indicated in my reasons that I made no comment on the truth or otherwise of Mr Tytler’s allegations against the Second Respondent under s87 of the Act. I dismissed his allegations under s87 of the Act on the basis that none of them fell within the purview of the Equal Opportunity Act.  I made no findings as to whether any of those allegations were frivolous or vexatious.

8. In these circumstances I consider that I should not make an order that the First Respondent have its costs of the proceedings instituted by Mr Tytler.

9. I have considered Mr Tytler’s application to strike out the First Respondent’s submissions for the issue of costs.  That is an inappropriate application and I will dismiss it.

10. I do not consider it appropriate to make an order that Mr Tytler have his costs on his “application for specific directions”.

11. My orders are:

    1.The Complainant’s application to strike out the First Respondent’s submissions for the issue of costs is dismissed.

    2.The First Respondent’s application that the Complainant pay its costs of the proceedings is refused.

    3.The Complainant’s application for costs on his “Application for specific directions” is refused.