Wilson v Phoenix Contracting Services Pty Ltd - [1998] VSC 81

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 5558 of 1998

ANTHONY ROBERT WILSON

Appellant

v
PHOENIX CONTRACTING SERVICES PTY.LTD. and
BARBARA HAIG

Defendants

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JUDGE: HEDIGAN, J.
WHERE HELD: MELBOURNE
DATE OF HEARING: 7 September 1998
DATE OF JUDGMENT: 18 September 1998
MEDIA NEUTRAL CITATION: [1998] VSC 81

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COSTS - Appeal against order - Equal Opportunity Tribunal - Section 138 Equal Opportunity Act - Tribunal dismissing complaint of sexual harassment - View of Tribunal complaint completely lacking any foundation - Hearing submissions at conclusion of evidence but before decision - Counsel making decision to address on costs - Whether waiver of right to object.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr. P. Ginnane Gadens
For the Defendant Mr. S. Stuckey Gilbert & Tobin

HIS HONOUR:

This is an appeal under s.150 of the Equal Opportunity Act 1995 against the order of the Anti-Discrimination Tribunal (hereinafter called "the Tribunal") made on 27th March 1998 whereby the Tribunal ordered that the appellant's complaint be dismissed and that the appellant pay the respondents' costs (including reasonable disbursements) of the hearing, to be assessed by the Registrar in accordance with Scale D of the County Court Scale. The applicable section of the Act (now repealed) permitted an appeal to the Supreme Court on a question of law from an order of the Tribunal, treating the Tribunal's order as if it were a final order of the Magistrates' Court and applying s.109 of the Magistrates' Court Act 1989 to the Tribunal's decision. In effect, the appeal to this Court is concerned only with the order for costs that was made in favour of the respondents, pursuant to s.138 of the Act. The provisions of the Act concerning the Tribunal (formerly the Board) to order costs have been amended over the years. Section 47 of the 1984 Act provided that if the Board, having heard the complaint, considered that it was frivolous, vexatious or totally lacking in substance, or that the respondent has behaved unreasonably, might order the person who made the complaint or the respondent to pay costs as fixed by the Board. In 1993 s.47 was amended to provide that in any inquiry or proceeding before the Board it might order the payment of costs fixed by it and, in making such an order, the Board must, unless there are special circumstances, fix a sum which reflects the costs reasonably incurred by the person in favour of whom the order is made and any other pecuniary loss. The provisions made by the 1995 Act in respect of costs is as follows:
"138. Order for Costs

(1) The Tribunal may order the payment of costs fixed by the
Tribunal in any proceedings fixed by the Tribunal.
(2) In making an order for costs, the Tribunal, unless there are
special circumstances, must fix a sum that reflects -

(a)

the costs reasonably incurred by the person in whose favour the order for costs is made; and

(b)

any other pecuniary loss…

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 Wilson v Phoenix Contracting Services Pty Ltd

Details

AGLC: Wilson v Phoenix Contracting Services Pty Ltd [1998] VSC 81
Case: [1998] VSC 81
Decision Date: 18 September 1998

CaseChat Overview and Summary

The case of Wilson v Phoenix Contracting Services Pty Ltd involved a complaint of sexual harassment lodged by the appellant against her employer, the respondent. The Equal Opportunity Tribunal dismissed the complaint and the appellant subsequently appealed against the tribunal's order concerning costs. The tribunal had ordered the appellant to pay costs of the respondent's legal representative, despite finding the complaint to be completely without foundation. The appellant argued that the tribunal's decision was flawed because the tribunal had dismissed the complaint before the appellant's counsel had an opportunity to address the tribunal on the matter of costs.

The legal issue before the court was whether the tribunal's order for costs was valid, given that the appellant's counsel had not had an opportunity to address the tribunal on the matter. The court needed to determine if the tribunal had waived its right to make an order for costs under section 138 of the Equal Opportunity Act by dismissing the complaint before the appellant's counsel had an opportunity to address the tribunal on the issue of costs. The court also needed to consider whether the tribunal's order for costs was an abuse of process.

The court found that the tribunal had waived its right to make an order for costs under section 138 of the Equal Opportunity Act by dismissing the complaint before the appellant's counsel had an opportunity to address the tribunal on the matter of costs. The court held that the tribunal's order for costs was therefore invalid and should be set aside. The court found that the tribunal had not abused its process in making the order for costs, as the tribunal had not acted in a way that was unreasonable or unjust. However, the court held that the tribunal had not considered all of the relevant factors in making its decision, and had therefore made an error of law.

The court set aside the tribunal's order for costs and remitted the matter to the tribunal for reconsideration. The court found that the tribunal should consider all of the relevant factors, including the conduct of the parties during the proceedings, before making a decision on costs. The court did not make any orders concerning the costs of the appeal.

Orders