Vukoje v Ethnic Broadcasters Inc - [2006] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application)
VUKOJE v ETHNIC BROADCASTERS INC AND ORS
[2006] SADC 48
Judgment of His Honour Judge David Smith
4 May 2006
PROCEDURE - COSTS
Costs - complaint pursuant to Equal Opportunity Act 1984 (SA) - complainant discontinued complaint before hearing - respondents applied for costs - construction of the provisions of s26 of Equal Opportunity Act - language of section indicates Parliament's intention that costs orders should be made by the Tribunal in only rare cases - discussion of principles applicable to a court's discretion to order costs where there is no trial - held application for costs refused.
Equal Opportunity Act 1984 s26, referred to.
Dey v Victorian Railways Cmrs (1949) 78 CLR 62; L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621; Tobin v Tobin (1977) 75 LSJS 9; ASC v Aust-Home Investments Ltd (1993) 116 ALR 523; Boscaini Investments & Ors v Corporation of Kensington & Norwood [1999] SASC 327; Boscaini Investments & Ors v Corporation of Kensington & Norwood [1999] SASC 327; O’Sullivan v Farrer (1989) 168 CLR 210; Cretazzo v Lombardi (1975) 13 SASR 4, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Frivolous or vexatious"

VUKOJE v ETHNIC BROADCASTERS INC AND ORS
[2006] SADC 48

The complainant in this matter was a presenter or radio announcer on the community radio station 5EBI FM (Ethnic Broadcasters Inc). He was suspended on or about the 24^th March 2004. He complained to the Equal Opportunity Tribunal that his suspension was a result of impermissible discrimination at the hands of the five respondents, namely that it was based upon his Serbian ethnicity.
The complaint was particularised and duly prosecuted. On the 3^rd March 2006, before any hearing, the complainant filed a notice of discontinuance. He explained to me that he had neither the resources nor the health to further prosecute his complaint.
On the 6^th April 2006, the respondents who were not content with the discontinuance of the complaint, applied for an order for costs. It is clear that in the time since the suspension there has been considerable animosity and aggravation between the two camps which have emerged.
The Power to Order Costs
Upon the application before me on the 26^th April 2006, counsel for the respondents seemed to consider that costs followed the event. Further investigations by them uncovered s26 of the Equal Opportunity Act 1984 which provides, inter alia, as follows:
26.(1) The Tribunal may make an order for costs in any proceedings in accordance with the scale prescribed for that purpose –
(a)where in the opinion of the Tribunal the proceedings are frivolous or vexatious; or
(b)where in the opinion of the Tribunal the proceedings have been instituted or prosecuted for the purpose of delay or obstruction.
It can be seen that costs do not follow the event but on the contrary costs may be ordered in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vukoje v Ethnic Broadcasters Inc

Details

AGLC: Vukoje v Ethnic Broadcasters Inc [2006] SADC 48
Case: [2006] SADC 48
Decision Date: 4 May 2006

CaseChat Overview and Summary

Vukoje sought to bring a complaint of discrimination under the Equal Opportunity Act 1984 (SA) against Ethnic Broadcasters Inc. However, the complainant chose to discontinue the complaint before the hearing took place. The respondents subsequently applied for costs under section 26 of the Equal Opportunity Act. The court was required to determine the appropriate interpretation of section 26 and whether it was permissible for the Tribunal to order costs in this scenario. The primary focus was on whether the language of section 26 indicated that Parliament intended costs orders to be made only in rare circumstances.

The court examined the language of section 26 and concluded that it suggested Parliament intended costs orders to be made by the Tribunal only in exceptional cases. The court further explored the principles applicable to a court's discretion to order costs where there is no trial. It considered the balance of convenience and whether the making of a costs order would be just in the circumstances. The court held that, given the complainant's decision to discontinue the complaint before the hearing, the application for costs should be refused. The court emphasised that the language of section 26 and the principles of justice supported this outcome.

The court's reasoning was grounded in the statutory language and the principles of fairness and justice. By refusing the application for costs, the court upheld the intention of Parliament as expressed in the Equal Opportunity Act. This decision reinforces the principle that costs orders should be made sparingly, particularly in cases where the complainant discontinues the complaint before the hearing. The court's decision was in line with the legislative intent and the equitable considerations that underpin the Act.

Orders