Equal Opportunity Tribunal of New South Wales CITATION: Mayfield -V- Legion Cabs (Trading) Co-Operative Society Ltd [1997] NSWEOT COMPLAINANT: Theresa Mayfield RESPONDENT: Legion Cabs (Trading) Co-Operative Society Ltd NUMBER: 14 of 1996 TRIBUNAL: Ms Narelle Bell ( Judicial Member ) GROUNDS OF COMPLAINT: Sex Discrimination DATES OF HEARING: 12/12/1997 DATE OF JUDGMENT: 12/16/1997 Complainant: Ms S. Winters (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr M. Michalandos Gadens Ridgeway (Solicitors) Mr R. Alkadamani (Counsel) JUDGMENT IN FAVOUR OF: On 12 December 1997 the Respondent in this matter made an application for costs in respect of the hearing of this matter by the Tribunal on 11 February 1997 and a directions hearing before the Senior judicial member on 12 December 1996. On 7 May 1997 the Tribunal handed down its decision to dismiss the complaint and declined to make an award of costs to the Respondent in respect of a directions hearing on 8 August 1996. The Respondent had made an application for costs of that directions hearing on 8 August 1996 and the Tribunal reserved its decision on that day. On 12 December 1997 when the Respondent sought to make its application for costs of the hearing and costs of the 12 December 1996 directions hearing, there was some controversy as to whether the Tribunal, in the last paragraph of its published reasons of 7 May 1997, had ordered that each party pay its own costs generally or whether that order related only to the directions hearing on 8 August 1996. Counsel for the complainant argued that the Tribunal was functus officio on the question of costs generally. Until 12 December 1997 there was no application for costs before the Tribunal other than the application made in respect of the 8 August 1996 directions hearing. The Tribunal's decision of 7 May 1997 refers specifically to that directions hearing. On 7 May 1997 the Tribunal decided only the question of costs of the 8 August 1996 directions hearing. It was therefore open to the Tribunal, on 12 December 1997, to hear the Respondent's application for costs for the 12 December 1996 directions hearing and the hearing on 11 February 1997. Section 114 of the Anti-Discrimination Act 1977 provides relevantly: 114(1) Except as provided by section 111(2) and subsection (2) each party to an inquiry shall pay his own costs. (2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. Section 111 of the Act provides: 111(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. (2) Where the Tribunal dismisses a complaint under subsection (1) it may order the complainant to pay the costs of the inquiry. Counsel for the Respondent has argued that both section 114(2) and 111(2) are available to the Respondent in its application. The Tribunal notes that no application was made by the Respondent through the course of the inquiry for the complaint to be dismissed pursuant to section 111 of the Act. The Tribunal made no finding that the complaint was misconceived, frivolous or vexatious. It follows that the appropriate provision under which to consider an application for costs in this matter is section 114(2). For the Tribunal to award costs under section 114(2) it must be satisfied that in this particular case there are circumstances to justify such an award in departure from the usual order provided for in section 114(1) (see decision of Ireland J in Royal Hospital for Women v Herring 1993 EOC 90-530). Counsel for the Respondent pointed to a range of conduct by the Complainant, supported by a statement from his instructing solicitor, which, he argued, constituted conduct which would justify a departure from the usual order. In particular he submitted that: ° the complaint was misconceived in that her own Points of Claim and evidence accepted that men suffered the same treatment as that complained of by her; ° the complaint was frivolous in that the maximum possible loss for the complainant was $200 and that she is now seeking to pursue further complaints against the Respondent; ° the President of the Ant-Discrimination Board declined to entertain the complaint because it was lacking in substance; ° settlement offers made by the Respondent were rejected by the Complainant, in particular an offer of $500 made during the luncheon adjournment on the day of the hearing; and ° the conduct of the litigation by the Complainant, notably her failure to file a comprehensible statement until the day of the hearing, the resultant delay of one hour on the hearing day to enable the Respondent to consider the document, failure to properly define the issues in the case and the late service of subpoenae. Counsel for the Complainant argued that the amount of loss suffered by the Complainant is irrelevant to her right to have her matter heard by the Tribunal and that she is similarly entitled to have any other complaint she may have dealt with in accordance with the Act. She also argued that the President's declining of the complaint has no bearing on the matter, given that a large number of complaints similarly declined have gone on to be found by the Tribunal to be substantiated. In relation to the conduct of the litigation , Counsel for the Complainant argued that at the directions hearing, initiated by the Respondent, the complainant's statement was found by the Senior Judicial Member of the Tribunal to be sufficient to enable the Respondent to file Points of Defence. She submitted that a delay of one hour does not warrant an award of costs when the allotted time for the hearing was not exceeded. Counsel for the Complainant also submitted that the Respondent's conduct in the litigation gave rise to the directions hearing on 12 December 1996, at which it was unsuccessful in challenging the Complainant's statement in support of her Points of Claim and that the Respondent's approach to the matter was to forward a mass of correspondence, including a number of requests for particulars, which indicated an intention to "vigorously defend" the proceedings. Counsel for the Complainant noted the difficulty faced by an individual largely acting for herself in facing an aggressive response by a "city firm" of solicitors. As to the offers made by the Respondent, Counsel for the Complainant submitted that the first offer made by the Respondent was simply for withdrawal of the complaint on a no costs basis. The second offer, made on the day of the hearing, was for a sum of $500 which, according to Counsel for the Complainant, did not address any future loss which could be incurred by the Complainant. Counsel for the Complainant stressed that quantum is not a consideration in relation to section 114(2) and that the purpose of the Act is not only to compensate for damage caused but also to eliminate discrimination. Counsel for the Complainant then drew the Tribunal's attention to the decision of Ireland J in Royal Hospital for Women v Herring and pointed to a number of similarities between that case and the present one. As stated above, although the Respondent seeks, for the purposes of its costs application, to characterise the complaint as frivolous and misconceived, it did not, at any stage, make the application available to it under section 111(1). The Tribunal, in its decision of 7 May 1997, made no finding that the complaint was misconceived or frivolous. There is nothing to suggest that the Complainant was not convinced of the validity of her complaint or that she pursued her complaint with anything but a genuine belief in her entitlement to the remedy she sought. As to the offers made by the Respondent to the Complainant, the first of those offers was for no sum at all and the second was for an amount which may not have addressed any future loss that might be of concern to the Complainant. It was not beyond the realms of reasonableness for her to reject the offers. In relation to the Complainant's conduct of the litigation, there is no doubt that, by comparison to the Respondent, she was disorganised and sometimes tardy. It is of significance, however, that the time allotted for the hearing was not exceeded, and while her conduct may have caused some inconvenience and concern to the Respondent, it did not, in the final result, prejudice it. It is also significant that the directions hearing on 12 December 1996, before the Senior Judicial Member, in respect of which the Respondent seeks costs, was listed at the request of the Respondent who was unsuccessful in its application on that date. The matters raised by Counsel for the Respondent are matters which, in the absence of section 114, would support an application for costs to follow the event. However, in accordance with the decision of Mr Justice Ireland above, "there should be no order as to costs unless there has been conduct on the part of the complainant, in bringing the complaint or otherwise, warranting departure from the usual order". The matters referred to by Counsel for the Respondent are not cumulatively matters which justify departure from the usual order. For these reasons the Tribunal refuses the Respondent's application for costs for the directions hearing on 12 December 1996 and for the hearing on 11 February 1997. 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