Vukoje v Ethnic Broadcasters Inc
[2006] SADC 48
•4 May 2006
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 24th 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 3rd 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 6th 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 26th 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 instances there specified in sub-paragraphs (a) and (b) of s26(1). There was no suggestion that the proceedings in this case were “instituted or prosecuted for the purpose of delay or obstruction”. So in this matter only sub-section (a) of s26(1) has application.
So if the Tribunal is of the opinion that the proceedings were frivolous or vexatious it may make an order for costs against the complainant. The use of the word “may” indicates that if the Tribunal forms the requisite opinion there remains a residual discretion to be exercised before any order can be made.
I note also, in respect of the quantum of any costs order, that the section suggests that there is in existence a “scale prescribed for that purpose”. Counsel did not alert me to any such scale and nor could my limited research unearth one.
According to the Oxford English Dictionary 2nd edition “frivolous” means, inter alia, “of little or no weight, value, or importance; paltry, trumpery; not worthy of serious attention; having no reasonable ground or purpose; manifestly insufficient or futile”. “Vexatious” means, inter alia, “causing, tending or disposed to cause, vexation; trouble or uneasiness”.
The words “frivolous or vexatious” are often defined in tandem in the legal context. That is “or” is given a conjunctive rather than a disjunctive meaning. The words together have been interpreted to mean:
·insupportable in law;
·disclosing no cause of action;
·groundless;
·so obviously untenable that it cannot possibly succeed;
·manifestly groundless; and
·so manifestly faulty that it does not admit of argument.
(See Dey v Victorian Railways Cmrs[1]; L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd[2]; Butterworths Australian Legal Dictionary 1997)
[1] (1949) 78 CLR 62 at 91
[2] (1978) 19 ALR 621; 33 FLR 170
The Principles
It is clear that a Court should not try an action merely for the purposes of ascertaining who would have succeeded and thereby become entitled to seek an order for costs (see Tobin v Tobin[3]). In cases where there is no trial on the merits, but the issue of costs is to be determined by the Court, there are some guiding principles which have been gathered by Hill J at 530 of his judgment in ASC v Aust-Home Investments Ltd[4] and modified by Debelle J in Boscaini Investments & Ors v Corporation of Kensington & Norwood[5]. They relevantly include the following:
·The Court should facilitate the resolution of litigation by disposing of the question of costs;
·Generally speaking, it will be inappropriate for the Court to determine the merits of the action for the mere purpose of deciding the issue of costs;
·Subject to the circumstances of an individual case where the applicant has acted reasonably in commencing proceedings, has an arguable case, and it is reasonable to conclude that the respondent has acted in consequence of the commencement of proceedings, the court may be prepared to make an order for costs in favour of the applicant;
·Subject to the circumstances of each individual case, generally speaking, no order should be made where it is impossible to predict without a trial what the outcome would have been;
·The reasonableness of the conduct of the parties in the litigation can be a relevant matter;
·The Court will only make an order where it is possible to form a clear view of the merit of the case.
[3] (1977) 75 LSJS 9
[4] (1993) 116 ALR 523
[5] [1999] SASC 327
The above principles emerge from cases in which a court is exercising the usual unfettered discretion to order costs, and so the guiding consideration is which party was successful or likely to have been successful. However, the provisions in s26 are specifically not predicated on success or the likelihood of it.
It is clear from the language of s26 that the legislature intended that in “the run of cases” in the Equal Opportunity Tribunal there should be no orders for costs. In particular, in only two classes of cases will a party qualify to seek an order for costs, firstly, where that party has been the subject of a complaint which is “... frivolous or vexatious”, and secondly, where proceedings have been “instituted or prosecuted for the purpose of delay or obstruction ...”. And, even then to qualify is not to succeed. There is still a discretion to be exercised before a costs order can be made. The exercise of this residual discretion is controlled not only by the circumstances of the matter, but also by the scope, intent and purpose of the legislation. Matters extraneous to the litigation cannot be taken into account (see O’Sullivan v Farrer[6]; Cretazzo v Lombardi[7]). In the light of the view I take it is not necessary to further explore the considerations relevant to the exercise of this residual discretion. Suffice it to say that the circumstances of the matter and the objects, scope and intent of the Equal Opportunity Act are relevant considerations.
[6] (1989) 168 CLR 210 at 216
[7] (1975) 13 SASR 4 per Bray CJ at 11
The Summary Hearing of the Application
So in this matter I proceeded in a “summary way”. I heard argument from the Bar table, received some documents and had regard to the pleadings. The arguments, particularly from the complainant, were often bereft of any focus, were emotional, inflammatory and at times irrelevant. There was a preoccupation on both sides with the troubled aftermath of the making of the complaint. The complainant reasserted his claim, in the pleaded complaint, that he was told by the second respondent that he was suspended because he was Serbian. He drew my attention to two letters of the 11th March 2004 written apparently by the fifth respondent. One of the letters was tendered in the costs hearing and the second was forwarded by arrangement later. Neither of the letters demonstrated the impermissible discrimination which is the focus of the Act. However, the allegation against the second respondent that the complainant was suspended because he was Serbian was an arguable justification for the complaint, though of course, I accept that the second respondent denied that. Such an allegation – and that is all it was – could not be, necessarily, characterised as frivolous or vexatious. Of course the complainant cast his net far wider than the second respondent and swept no less than four other parties into his complaint.
Conclusion
On the basis of all the material put to me I have my doubts about whether the complaint in its entirety was tenable. However, it is impossible to predict what the outcome would have been without a full hearing. Even if a prediction were possible it is difficult to say what, if any, cost order would have been appropriate under s26.
In short, I cannot be satisfied that the proceedings were either frivolous or vexatious. Even if I was so satisfied it is not possible to decide whether I would exercise my “residual” discretion to make an order for costs in favour of the respondents.
The application for costs is dismissed.