Equal Opportunity Tribunal of New South Wales CITATION: Johnstone -V- N S W Tafe Commission (Hunter Institute Of Technology) [1997] NSWEOT COMPLAINANT: Amanda Johnstone RESPONDENT: N S W TAFE Commission (Hunter Institute of Technology) NUMBER: 94 of 1995 Ms Narelle Bell ( Judicial Member ) TRIBUNAL: Mr N Lacey Mr N Rogan GROUNDS OF COMPLAINT: Discrimination on the ground of sex (pregnancy) in the area of education DATES OF HEARING: 11/25/1996; 11/26/1996 DATE OF JUDGMENT: 05/19/1997 Complainant: Andrew Thorpe Solicitors (Solicitors) Ms F Davis (Counsel) LEGAL REPRESENTATIVES: Respondent: State Crown Solicitor's Office (Solicitors) Mr M Dicker (Counsel) JUDGMENT IN FAVOUR OF: This application for costs made by the Respondent pursuant to section 111(2) and section 114 of the Anti-Discrimination Act 1977 follows on the decision of the Tribunal on 26 November 1996 to dismiss the complaint pursuant to section 111(1) of the Act on the basis that the complaint was found by the Tribunal to be lacking in substance. Counsel for the Respondent referred the Tribunal to the decision of His Honour Mr Justice Ireland in Royal Hospital for Women v Herring 1993 EOC 90-530 and then sought to distinguish the present case on a number of points. His Honour, in Royal Hospital for Women , after discussing the effect of section 114 and noting that the words used in that section are directed towards considerations of costs inter partes whereas the discretion arising under section 111(2) is extended to encompass the costs "of the inquiry",said: "Section 111(2), in my view, extends the discretion as to costs inter partes reposed in the Tribunal by section 114 to enable it to take the further step and order the complainant to pay the costs of the enquiry should such a course be deemed appropriate in circumstances where the complaint has been dismissed under section 111(1). I am not persuaded that a proper approach for the Tribunal in this case , on the question of costs, is as submitted by counsel for the plaintiff, that costs should follow the event unless conduct on the part of the successful respondents warrants them being deprived of their costs. Rather the contrary view is to be preferred, ie, 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 fact that a complaint is dismissed under section 111(1) does not, of itself, warrant departure from the ordinary considerations which bear upon costs questions under section 114 save that in extreme circumstances, should the opinion of the Tribunal be such, it may move beyond the question of costs inter partes and order the complainant to pay the costs 'of the inquiry'." Counsel for the Respondent raised three matters which cumulatively, in his submission, bring the present case within the exception: ° the complaint was found by the Tribunal to be misconceived or lacking in substance; ° the complainant was represented by a solicitor and counsel and was therefore not without advice on the evidence required and the likelihood of success; and ° by letter of 19 June 1995 to the Respondent offered to settle the matter by payment of maternity leave to the Complainant. The first matter raised, as recognised by Counsel for the Respondent, is not sufficient, in itself, to warrant departure from the ordinary course. The second matter is not, in the Tribunal's view, a determinative factor. It is not for the Tribunal to speculate on the advice received by the Complainant from her legal representatives. The Tribunal has no reason to believe 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 Respondent's earlier offer of settlement, it is noted that the offer made was for payment of maternity leave while the complainant's claim was for a remedy which also included continuation of previous employment. Rejection of the Respondent's offer was not, in the Tribunal's view, beyond the realms of reasonableness. The matters raised by Counsel for the Respondent are matters which, in the absence of sections 114 and 111(2), 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". In the Tribunal's view, there has been no such conduct on the part of the Complainant as would warrant that departure and result in the payment by the Complainant of costs inter partes pursuant to section 114 or the costs of the inquiry pursuant to section 111(2). The Tribunal therefore refuses the application. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.