Watkins v SouthLink Pty Ltd
[2009] SAEOT 2
•4 March 2009
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
WATKINS v SOUTHLINK PTY LTD
[2009] SAEOT 2
Reasons for Decision of Her Honour Judge Trenorden
4 March 2009
HUMAN RIGHTS - DISCRIMINATION - GENERALLY
PROCEDURE - COSTS
ADMINISTRATIVE LAW
Allegation of discrimination on ground of disability - Complaint referred by Commissioner - Complaint dismissed prior to hearing - Costs applications against complainant and Commissioner for Equal Opportunity - Whether the proceedings were frivolous or vexatious.
HELD: Applications for costs not made out. Both applications dismissed.
Equal Opportunity Act 1984, referred to.
Peden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Attorney General v Wentworth (1988) 14 NSWLR 481; Port Stephens Council v Sansom (2007) 156 LGERA 125; Oshlack v Richmond Shire Council (1998) 193 CLR 72, considered.
WATKINS v SOUTHLINK PTY LTD
[2009] SAEOT 2THE TRIBUNAL MADE THE FOLLOWING DECISION:
On 21 April 2005, Mr Vince Watkins (Mr Watkins), complained to the Commissioner for Equal Opportunity (the Commissioner), alleging discrimination on the ground of impairment against him by Southlink Pty Ltd (Southlink).
In excess of 2½ years later, on 29 January 2008, the Commissioner referred the Complaint of discrimination to the Equal Opportunity Tribunal under s 95(8) of the Equal Opportunity Act 1984, for hearing and determination, having unsuccessfully attempted to conciliate the complaint, and having been requested by Mr Watkins to do so.
Mr Watkins had been employed as a bus operator with Serco Adelaide Buses. Following the announcement that Southlink had won a contract with the South Australian Government for the operation of Adelaide buses, for which Serco had been unsuccessful, Mr Watkins applied for a job with Southlink as a bus operator. On 23 April 2005, Mr Watkins was advised by Southlink that his application had not been successful.
In his Complaint, Mr Watkins alleged unlawful discrimination on the ground of physical impairment and sought from Southlink, an apology in writing, compensation for injury to feelings, hurt and humiliation in the amount of $10,000 and compensation for the economic loss for the period of his unemployment from April 2005.
The matter was duly listed for hearing before three members of the Tribunal on 15-16 September 2008. However, at the scheduled time for the commencement of the hearing, the Tribunal was advised by counsel instructed by the solicitors assigned by the Commissioner to assist Mr Watkins in the presentation of his case, that Mr Watkins had failed to appear and that the solicitors had not been able to contact him. The matter was adjourned to the following day. On 16 September the Tribunal was informed that no further contact had been achieved between the solicitors and Mr Watkins, and in light of this, the Commissioner had withdrawn her instructions to assist Mr Watkins. Southlink made an application for costs pursuant to s 26(2), namely for an order for costs of the adjournment against Mr Watkins, which was noted and adjourned. The matter was further adjourned for directions, before me sitting alone, with the agreement of counsel, to 24 September 2008.
On 24 September 2008, Mr Watkins attended in person. He was no longer represented by solicitors. Southlink sought the dismissal of the Complaint, intimating that if an order for dismissal was made, it would not pursue the application for costs of the adjournment, but would seek costs pursuant to s 26(1)(a) against both Mr Watkins and the Commissioner for Equal Opportunity, on a joint and several basis.
Mr Watkins provided an explanation for his non-attendance on 15 and 16 September, including medical certificates. He indicated that he now sought only an apology from Southlink. No apology being forthcoming, Mr Watkins stated that he did not wish to continue with the proceedings. In light of the statement, the Tribunal exercised its power under s 96(2)(b) and made an order dismissing the Complaint.
In the presence of Mr Watkins, counsel for the respondent and the Commissioner's representative, the application for costs was listed for hearing on 1 December 2008. The hearing proceeded as listed, before me sitting alone, on that day. Mr Watkins did not attend the hearing.
Costs: The Power of the Tribunal
Generally, the Equal Opportunity Tribunal is considered to be a “no costs” jurisdiction. There is one section in the Equal Opportunity Act that addresses costs. Section 26 provides that costs may be awarded in certain circumstances, as follows:
26—Tribunal may award costs in certain circumstances
(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.
(2) Where a party to proceedings before the Tribunal applies for an adjournment of the hearing of those proceedings, the Tribunal may grant that application upon such terms as it considers just, and may make an order for costs in accordance with a scale prescribed for the purpose against the applicant for the adjournment in favour of any other party to the proceedings.
(3) Costs awarded by the Tribunal under this section may be recovered by the person in whose favour they were awarded as a debt due from the person against whom the order was made.
The application before the Tribunal is based on subsection (1)(a). The Tribunal has a discretion to make an order for costs, once it has formed an opinion that the proceedings were frivolous or vexatious. Before consideration can be given to the exercise of its discretion, it must form the requisite opinion.
There is no legislative basis for an award of costs otherwise than pursuant to s 26.
It is also to be noted that, by s 23(2), the Tribunal is directed to:
“ … act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks fit.”
Counsel for the respondent also submitted that once the threshold test for jurisdiction has been passed, namely that it has been established that the proceedings were frivolous or vexatious, then the discretion should be exercised to “award costs in the ordinary event, obviously having regard to all relevant considerations but not having any special consideration for the fact that this is the Equal Opportunity Tribunal”. (transcript page 15, lines 17-21). He asserted that proceedings in this Tribunal are fundamentally inter parties litigation.
The Law: Frivolous or Vexatious
The Tribunal was referred to the reasoning in Peden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149, a judgment of the New South Wales Industrial Relations Commission. There it was accepted, following the authority of General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, that an application will be frivolous, “if on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter” (para 20).
With respect to the claim that the proceedings are vexatious, Peden (above) also contains a useful summary of the test to be applied in determining whether an application is vexatious, following Attorney General v Wentworth (1988) 14 NSWLR 481 per Roden J at 487, as follows:
1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2.They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues for (sic) which they give rise.
3.They are also properly to be regarded as vexatious if, irrespective of a motive of a litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless.
It is to be noted that intention is an element of the first test set out above. There also appears to be an element of intention in the second test. Indeed, that seems to have been acknowledged in the conclusion in paragraph 31 of Peden, where the Commission concluded that the proceedings were not vexatious, having found that there was “no evidence in the present case that the appellant commenced proceedings ... with any intention other than to have his claim determined by the Commission”.
The Exercise of the Discretion
I do not accept that once the threshold test is passed, the usual rule that costs follow the event, applies. Proceedings in the Tribunal are not inter parties litigation.
The general justification for the absence of a legislative power to award costs generally, is considered to be that persons should not be discouraged from exercising their rights: see Port Stephens Council v Sansom (2007) 156 LGERA 125 at [22]-[23]. In the case of equal opportunity matters, that right is to have one’s complaint referred to the Tribunal when it cannot be successfully resolved by conciliation. Indeed, by s 95(8) of the Act, the Commissioner must refer the matter to this Tribunal for hearing and determination when she has attempted to resolve the matter by conciliation but has not been successful in that attempt. Moreover, in those circumstances, the Commissioner must if requested by the complainant, assist the complainant in the presentation of his or her case to this Tribunal.
That the foregoing is set out in the Equal Opportunity Act strongly suggests that the Tribunal retains a full discretion once the threshold test has been passed, and is not constrained by any rule that might apply in inter parties litigation.
Although the hearing of proceedings in this Tribunal may, and often does, take on the character of adversarial litigation, which is usual in inter parties litigation, it does not follow that the proceedings have that character. The proceedings are not an adversarial contest between two parties with individual and usually financial, interests to advance, as Kirby J described typical civil litigation in this country, in Oshlack v Richmond Shire Council (1998) 193 CLR 72 at [117], where His Honour discussed the exercise of a discretion to order costs, part of which is set out below:
4. It is because the general purpose of an order for costs in favour of a successful party is to provide compensation in the form of a partial indemnity for the costs incurred that the ordinary principle observed in civil litigation under the “English rule” (as contrasted to the “American rule” is that legal costs will usually be ordered in favour of the successful party. Absent special statutory provisions, Australian law has followed this English rule. But the compensatory principle cannot be treated as an absolute rule. Otherwise, the discretion conferred in unqualified terms would indeed be shackled and confined. To permit this would be incompatible with statutory language expressed in such terms. Therefore, although there are “rules” or ordinary principles which will guide the donee of power in the exercise of the discretion, they cannot extinguish the element of discretion. They must not be allowed to harden into rigid or inflexible requirements.
5. The proper approach to the exercise of a statutory discretion may be illuminated by the particular language in which it is expressed and the purpose for which it has been provided. Thus the purpose in Latoudis clearly enough, was to substitute a new and different rule in criminal proceedings for the old rule governing the payment and receipt of costs by the Crown. In the present case, when determining the considerations that might be relevant to the exercise of the discretion in question, it would be a mistake, equivalent to that exposed in Latoudis, to ignore the functions, powers and peculiar procedural provisions governing the Land and Environment Court in the jurisdiction which it had exercised.
In similar fashion, it would be a mistake to ignore the nature of the jurisdiction of the Equal Opportunity Tribunal and its functions, powers and procedural provisions.
In reality, the proceedings involve the Tribunal in hearing a complaint that the respondent has discriminated against the complainant in a manner proscribed by the Act and determining whether such discrimination has taken place and if so, the nature of any consequential orders that should be made, within the power of the Tribunal under s 96 of the Act. The proceedings are not an adversarial contest between two parties.
It follows that even if the threshold test was established, the Tribunal retains a full discretion as to whether an order for costs should be made.
The Costs Application against Mr Watkins
Southlink submits that Mr Watkins’ proceedings in the Tribunal were frivolous or vexatious.
It was submitted on behalf of Southlink that because Mr Watkins has been in receipt of a disability support pension for a period or periods since 2005, his proceedings in this Tribunal could not have succeeded. He had applied for full-time employment with Southlink and claimed that Southlink, in refusing to give him employment, had discriminated against him on the ground of impairment. It is submitted that Mr Watkins' claim for economic loss following the rejection by Southlink allegedly resulting from discrimination and compensation for injury to feelings, hurt and humiliation could not have succeeded having regard to the fact of his being in receipt of a disability pension. It was said that there are two reasons why the proceedings could not have succeeded.
The first reason is that given that Mr Watkins receives a disability support pension, he has ceased to mitigate his economic loss and so has suffered no economic loss, unless he can show that he was looking for other employment. However, searching for other employment would be inconsistent with receiving a disability support pension.
The second reason relies, at least in part, on the provisions of s 71(2)(a) of the Equal Opportunity Act, which is set out below:
71 – Exemptions
…
(2)This Division does not apply to discrimination on the ground of impairment in relation to employment if the person suffering from the impairment is not, or would not be, able –
(a) to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or
…
The very basis of the disability support pension is that the recipient cannot undertake a full range of employee duties, in which case Mr Watkins’ application for employment with Southlink could not have succeeded, as it had been in response to an advertisement for persons who could undertake a full range of duties.
Accordingly, it is submitted, the proceedings are frivolous or vexatious.
Southlink also argued in support of its costs application, that the conduct of Mr Watkins, both in relation to instructing his assigned solicitors and with respect to the Tribunal, had coloured the proceedings as frivolous or vexatious.
The Facts
That which follows is either contained in the limited evidence received by Tribunal, the undisputed parts of the pleadings, the Tribunal record or was information or material received from Mr Watkins on 24 September 2008.
Mr Watkins applied for full time employment as a bus operator with Southlink in February or March 2005. His application was not successful. He complained to the Commissioner that he had been discriminated against on the ground of impairment. Apparently, Mr Watkins had indicated in his complaint to the Commissioner that as a result of not being offered employment with Southlink, he would have to reapply for a disability pension, according to the unchallenged affidavit evidence of Mr Robert Francis Holland, a member of the respondent’s firm of solicitors.
It had become clear to Southlink’s solicitors as they prepared for the hearing, that Mr Watkins had been in receipt of a disability pension prior to his employment with Serco as a result of a lower back injury suffered in 1978, and following his failure to secure employment with Southlink, would apply again for a disability pension. Then shortly before the hearing, Southlink’s solicitors were advised Mr Watkins was currently in receipt of a disability pension.
As I have said earlier in these reasons, Mr Watkins lodged a complaint with the Commissioner for Equal Opportunity on 27 April 2005. Subsequently, a conciliation conference convened by the Commissioner, took place late in August 2005, but the matter could not be resolved at that conference. What took place in the offices of the Commissioner between late August 2005 and 7 September 2007 is not known to the Tribunal, but it was 2 years after the conciliation conference that the Commissioner advised Southlink that she had decided not to decline the complaint and therefore had to refer the matter to this Tribunal.
It appears that solicitors were instructed by the Commissioner to assist Mr Watkins, by letter dated 6 September 2007. The solicitors were responsible for preparation of the documents to be filed in this Tribunal including the Particulars of Complaint. The affidavit of Geraldine Mary Hannon sworn 28 November 2008; Ms Hannon being a member of the firm of solicitors engaged by the Commissioner to assist Mr Watkins, is vague as to when Particulars of Complaint were drafted and sent to Mr Watkins for his approval. In consequence, I am unable to determine whether Mr Watkins was tardy in responding to correspondence from the solicitors assigned to assist him.
The matter was actually referred to this Tribunal under cover of a letter from the Commissioner dated 25 January 2008. That letter, together with enclosures, being a Notice of Referral and Particulars of Complaint, was received in the Tribunal registry on 29 January 2008.
It would appear that there was no delay by Mr Watkins in responding to the next correspondence from the solicitors assigned to assist him. According to Ms Hannon’s affidavit, he telephoned the solicitors’ offices promptly upon receipt of Answer to the Particulars of Complaint (filed in the Tribunal on 12 March 2008) and subsequently, on 23 March 2008, provided his instructions by email and also in the course of a teleconference on 27 March 2008.
According to the Tribunal record, by 14 May 2008, when the matter was the subject of a directions hearing at which the matter was listed for hearing, Mr Watkins’ solicitors were in a position to file a list of documents. Thus, the solicitors must have already received instructions in this regard from Mr Watkins. The list of documents was subsequently filed on 19 May 2008.
Ms Hannon deposes in her affidavit that at some point she sent Mr Watkins his draft statement but did not receive any documentation from him in return. The affidavit did not indicate the date upon which the draft statement was sent to Mr Watkins.
Further documents were sought from Mr Watkins subsequent to his solicitors receiving a letter from Southlink’s solicitors dated 26 August 2008. Again, there is no indication whether a letter was ever despatched to Mr Watkins after 26 August 2008, either by post or email. I mention email because the evidence revealed that Mr Watkins had on one occasion (March 2008), provided instructions to the solicitors by email.
Finally, on 9 September 2008, apparently after receiving a further letter from Southlink’s solicitors dated 4 September 2008, Ms Hannon telephoned Mr Watkins to seek the documents, allegedly already requested from him on an earlier date. Ms Hannon claims that in the course of this telephone conversation, Mr Watkins stated that he did not want to claim for economic loss. Further, he advised that he had been receiving a partial disability pension as a result of a back injury in 1978 and was continuing to receive disability support. I am unable to say whether this was the first occasion on which Mr Watkins advised that he was in receipt of a disability pension. That conversation took place on the Tuesday (9 September) prior to the scheduled hearing of the proceedings.
On Friday 12 September 2008, Ms Hannon received a telephone message from Mr Watkins advising that he was very unwell with high blood pressure. Ms Hannon subsequently spoke by telephone with Mr Watkins, who instructed her to “make an offer to the solicitors for the respondent” as had been discussed between them in the telephone conversation of 9 September 2008. There was further discussion as to the need for Mr Watkins to be in attendance on the following Monday (15 September) for the hearing. According to Ms Hannon, in the course of conversation, Mr Watkins had advised Ms Hannon that he was not able to attend as he had a doctor’s appointment that day. Ms Hannon’s evidence is that she had advised Mr Watkins that his attendance was necessary.
Mr Watkins did not attend at the Tribunal on 15 or 16 September 2008. His next communication with his solicitors was by email at 9.52am on 16 September 2008.
On 24 September 2008, at the directions hearing, Mr Watkins produced two certificates of sickness. The first was dated 14 September 2008 and indicated that Mr Watkins had been seen on that date, that he was suffering from hypertension and that he would be unfit for work from 15 September to 16 September 2008. The second certificate of sickness was dated 18 September 2008. The examining doctor certified that he had examined Mr Watkins on that date and that he was “unfit for voluntary work from 17/9/2008 and up to and including 19/9/2008”, and further that he should be able to “resume voluntary work on 22/9/2008 if better”. There was no indication as to the medical condition in evidence at the time of the examination.
On 24 September, Mr Watkins informed the Tribunal that on 15 September he had been suffering from high blood pressure and kidney stones. He indicated that he had been too ill to get out of bed to send an email to his solicitors, and as his mobile phone was not working, had no other means of communicating with them to advise that he would not be able to attend their offices or the Tribunal on that day.
Whether The Proceedings Were Frivolous Or Vexatious
I am unable to conclude that the proceedings could not possibly have succeeded or were manifestly groundless. Whether there had been discrimination against Mr Watkins was a matter for the Tribunal to hear and determine. Whether a complainant is in receipt of a pension, granted subsequent to the act or acts of discrimination alleged, is unlikely to be relevant to whether discrimination contrary to the Equal Opportunity Act, occurred. Whether s 71(2) is applicable is a question of fact to be determined upon hearing of the evidence. Whether there was a case made out for economic loss or compensation was a matter to be determined on the evidence.
As Mr Watkins had stated in his Complaint to the Commissioner that he would have to reapply for a disability pension, the solicitors were on notice, when first instructed by the Commissioner, assuming they had been given a copy of Mr Watkins’ original complaint, of the need to obtain full instructions from Mr Watkins about his pension status and provide advice and receive instructions as to the relief that could appropriately be sought in the circumstances. The letter of instruction from the Commissioner, dated 6 September 2007, had indicated that a document or documents relating to Mr Watkins’ complaint were provided. Whether the disability pension issue was raised with Mr Watkins, particularly in light of his claim for compensation for economic loss, has not been revealed.
Mr Watkins did not take the opportunity to assist the Tribunal with evidence. The affidavit evidence did not convey a complete picture. In the absence of evidence in relation to Mr Watkins’ situation at the time that the proceedings were instituted in this Tribunal, it is not possible to determine whether the proceedings were manifestly groundless, and on their face could not possibly succeed.
Whether Mr Watkins understood the implications of commencing or continuing with the proceedings filed in this Tribunal when he intended to apply for, or was in receipt of a disability pension is not known. It follows that I cannot find that Mr Watkins had a clear intention to institute the proceedings for the purpose of annoying or embarrassing Southlink or for other collateral purposes.
I do not know when Mr Watkins applied for a disability support pension subsequent to his application for employment with Southlink being rejected, nor do I know the date following his application on which he began receiving a disability support pension, once again. I have only been informed that Mr Watkins was receiving a disability support pension in September 2008, and had been in receipt of such a pension as a result of a 1978 back injury at some point during or prior to his employment with Serco.
Based on what is before the Tribunal, I am unable to find that Mr Watkins was less than assiduous in his preparation for the hearing. If I had found that he had not prepared assiduously for the hearing, that might have constituted evidence of intention that the proceedings were brought for purposes other than having the Tribunal adjudicate on the Complaint.
Taking the medical certificates at face value, it appears that Mr Watkins was unwell between 14 September and 20 September 2008. It also appears that it was not possible to communicate with him by telephone, during this period. Although it is difficult to accept that Mr Watkins was unable by any means to communicate so as to advise that he was unable to attend the solicitors’ offices or the hearing in this Tribunal, I do accept that it is feasible that a person living alone may be so overwhelmed by illness and pain such that he or she is not in a position to attempt communication.
It follows that I am unable to agree that the conduct of Mr Watkins in relation to the Tribunal coloured his proceedings as frivolous or vexatious. Mr Watkins provided a plausible explanation for his non-attendance on 15-16 September and inability to communicate until 9.52am on 16 September 2008, such that without more, it would be wrong for me to infer from his failure to appear, that the proceedings were manifestly groundless or obviously untenable, or that he had brought them with an intention of annoying or embarrassing Southlink, or for other collateral purposes.
It was submitted that in receiving a disability support pension, Mr Watkins has ceased to mitigate his economic loss. I do not agree. There is an argument open that in applying for and receiving a disability support pension, he has mitigated his economic loss. It may yet be the case that he has suffered economic loss. There may be a monetary difference between the amount of the disability support pension received and the income Mr Watkins would have received had he been employed by Southlink.
Counsel for Southlink also submitted that the only basis on which Mr Watkins could say he has suffered an economic loss, given that he is in receipt of a disability support pension, is in the event he was looking for other employment, but that that would be inconsistent with receiving a disability support pension. There is nothing before the Tribunal in relation to a disability support pension and the terms and conditions thereof. Whether a recipient of a disability pension may engage in some employment may depend on whether he or she receives a full disability support pension. Indeed Mr Watkins informed the Tribunal on 24 September 2008 that he was in receipt of a “basic disability pension”, whatever that may mean. In any event, there was no evidence before the Tribunal concerning the terms and conditions of a disability support pension to support the submission.
As to whether the respondent’s case based on s 71(2)(a) would have succeeded, I cannot say. On what is before me, success would not follow necessarily from the circumstance that a person was in receipt of a disability pension. In any event there was no evidence to show either that Mr Watkins was receiving a pension at the time of his application or that any disability he suffered would have had the consequence of exempting the respondent from the proscription against discrimination under s 71(2)(a) of the Equal Opportunity Act.
In the absence of any other evidence, I am unable to form an opinion overall that Mr Watkins’ proceedings in this Tribunal were frivolous or vexatious.
The threshold test is not made out. There is no discretion for the Tribunal to exercise. It follows that the Tribunal cannot accede to the application for costs by Southlink against Mr Watkins.
The Costs Application Against the Commissioner for Equal Opportunity
Given that s 26 is the only costs provision in the Equal Opportunity Act, and it is a precondition of the Tribunal exercising its discretion to make an order for costs in proceedings that it form the opinion that the proceedings are frivolous or vexatious, and I have determined that I am unable to form such an opinion, this application can be disposed of shortly.
In addition, I consider it highly unlikely that s 26 was intended by Parliament to give rise to an order against the Commissioner. This appears to be such an unlikely intention, that if it had been the intention of Parliament, I think the Act would specifically have made provision for the Tribunal to order costs against the Commissioner.
The functions of the Commissioner set out in s 11, and more particularly in s 95 of the Equal Opportunity Act, militate against such a suggestion. Before the Commissioner refers the matter to the Tribunal for hearing and determination, she must have recognized the complaint is one upon which action should be taken and have attempted to resolve the matter by conciliation. A complaint that is frivolous, vexatious, misconceived or lacking in substance is unlikely to be recognized by the Commissioner as one upon which action should be taken: see generally s 95.
The application against the Commissioner cannot succeed.
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