V v Y & Anor; X v Y & Anor [2002] NSWADT 7 (5 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: V -v- Y & Anor; X -v- Y & Anor [2002] NSWADT 7

PARTIES: FILE NUMBER: 19 of 1998

APPLICANT

V

FIRST RESPONDENT

Y

SECOND RESPONDENT

Z

FILE NUMBER: 991030

APPLICANT

X

FIRST RESPONDENT

Y

SECOND RESPONDENT

Z

FILE NUMBERS: 19 of 1998

991030

HEARING DATES: 19/09/2001

SUBMISSIONS CLOSED: 02/11/2001

DECISION DATE: 05/02/2002

BEFORE: Ireland G - Judicial MemberClayton S - MemberCox R - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Anti-Discrimination Act 1977

Trade Practices Act 1974 (Cth)

CASES CITED: Burke v. V Tralaggan & Anor [1986] EOC92-161

Gulliver vs The Council of the City of Sydney & Anor [1987] EOC92-185

Hopper v. Mt Isa Mines Limited [1999] 2QDR.496

De La Rosa & Anor; Exparte Norgard v Rodpat Nominees Pty Limited [1991] 31FCR83

Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001]NSWADTAP 10

Gallagher v NSW Police Service [1998] NSWEOT

Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311

Australian Postal Commissioner v Dao & Ano (No 2)(1986) 6 NSWLR 497

APPLICATION: Costs

Costs - Contribution

MATTER FOR DECISION: Costs

APPLICANT REPRESENTATIVE: APPLICANTS

A Healey, barrister

RESPONDENT REPRESENTATIVE: FIRST RESPONDENT

K Roser, barrister

SECOND RESPONDENT

No appearance

ORDERS: 1. The Tribunal determines that the Respondents be jointly and severally liable to each Applicant for the costs referred on a party/party basis.

2. That the amount of the costs be agreed between the parties within sixty (60) days of the making of these orders.

3. If the parties are unable to agree upon the amount of costs within the period of 60 days, costs are to be assessed pursuant to the Legal Profession Act 1987.

Reasons for Decision:

1 This decision relates to two ancillary matters arising out of decisions made by the Equal Opportunity Tribunal on 1 September 2000, in which the Tribunal found in favour of the Applicants in their respective complaints of sexual harassment brought by them against the Second Respondent, the perpetrator of the sexual harassment and against the First Respondent, the employer of the Second Respondent. In each complaint, the Tribunal found that the Second Respondent had discriminated against the respective Applicants on the ground of their sex and the Tribunal found that the First Respondent, as the employer of the Second Respondent, was vicariously liable for the discriminatory conduct of the second Respondent, pursuant to Section 53(1) of the Anti-Discrimination Act 1977 ("the Act").

2 As a consequence of the findings of the Tribunal, the First Respondent and the Second Respondent were jointly and severally liable to the respective Applicants for the discriminatory acts of the Second Respondent, pursuant to Section 53(2) of the Act.

3 The First Respondent, the employer of the Second Respondent, now seeks from the Tribunal an order directing the proportions that should be borne respectively between the First Respondent and the Second Respondent for the amounts awarded by the Tribunal by way of damages, and if the Tribunal should accede to the Application by the Applicants for an order for costs, the First Respondent also seeks an order as to the respective contributions to be made to the costs, between the first Respondent and the Second Respondent. The First Respondent indicated to the Tribunal that an appropriate rate of contribution would allocate the majority proportion of the damages and costs to be paid by the Second Respondent, based on the degree of fault attributable to the Second Respondent for the conduct which gave rise to the findings of sexual discrimination on which the award of damages, and costs, were made by the Tribunal.

4 In addition, the Applicant makes application to the Tribunal for an order for the costs of the Applicant in relation to an aborted hearing on 24 September 1999, for the costs associated with the hearing of the inquiry by the Tribunal which took place over a period of seven (7) days at the Courthouse at Coffs Harbour in February and April 2000, and for the costs of these applications.

5 As the circumstances applicable to the applications before the Tribunal for contribution and for costs arising in the two complaints, and the issues to be considered in relation to those applications, are of the same or of a similar nature, the Tribunal has considered the applications together and had adopted the same reasons for its decisions in each matter.

6 A preliminary issue in the consideration of the applications was the absence of representation or appearance by the Second Respondent. The Tribunal was concerned to consider the applications in the absence of the Second Respondent as the parties were unable to produce to the Tribunal evidence to indicate that steps had been taken to notify the Second Respondent of these applications. In the absence of evidence to show that any attempt had been made to locate and to serve the Second Respondent with documentation giving notice of the Applications, the Tribunal was faced with the dilemma of proceeding in the absence of the Second Respondent or postponing the hearing of the Applications until the parties had taken steps to notify the Second Respondent. Counsel for the Applicant and for the First Respondent informed the Tribunal that those parties had no knowledge of the current address of the Second Respondent and accordingly would be unable to arrange for effective service of notification of the applications on the Second Respondent. The Tribunal was persuaded to proceed with the hearing of the applications in the absence of the Second Respondent as at no stage during any of the preliminary hearings nor at the final hearing of the inquiry in Coffs Harbour, had the Respondent appeared. The inquiry at Coffs Harbour proceeded in the absence of the Second Respondent as the Tribunal considered, for the reasons that it expressed in its decision, that the Second Respondent had received sufficient notice of the hearing of the inquiry and in the view of the Tribunal, had demonstrated a lack of intention to take part in the inquiry. It would be consistent with this prior attitude of the Second Respondent, in the opinion of the Tribunal, that the Second Respondent would show a similar lack of intention to appear in relation to the present applications. As the Applicants and the First Respondent had indicated to the Tribunal that their inquiries had failed to locate the present whereabouts of the Second Respondent, the Tribunal considered that it had an overriding responsibility to the Applicant and to the First Respondent, to deal with their applications in the absence of the second Respondent. The Tribunal accordingly proceeded to consider the representations made by the Applicant and by the First Respondent.

Contribution Between the Respondents - Section 53(1)

7 The First Respondent seeks an order from the Tribunal directing that the Second Respondent should carry the financial burden for the consequences of his actions which gave rise to the findings of sexual discrimination by the Second Respondent and for which the First Respondent, as the employer, bears joint and several liability pursuant to Section 53(2) of the Act. The Tribunal understands that this submission would require the Tribunal to order that the Second Respondent pay the whole or the greater proportion of the amounts awarded to the respective Applicants by way of damages, and, if the application for costs is successful, for those costs.

8 As far as the Tribunal is aware, no previous decision has been made for an award for contribution arising under Section 53(2) of the Act. The relevant provisions of Section 53 are as follows:

"53. Liability of principals and employers

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability ....."

9 Section 53 does not itself contain provision for the determination of the rates of contribution between persons held to be joint and severally liable under that Section. The Tribunal on occasions has made awards which apportion amounts awarded by way of damages between more than one respondent to a complaint, presumably considering that Section 113 of the Act enables the Tribunal to make an order for the apportionment of damages; Burke v. V Tralaggan & Anor [1986] EOC92-161; Gulliver vs The Council of the City of Sydney & Anor [1987] EOC92-185.

10 Relevant provisions of Section 113 are as follows:

"113. Order or other decision of the Tribunal:

(1) After holding an inquiry, the Tribunal may:

(a).....

(b) Find the complainant substantiated and do any one or more of the following:

(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000.00 by way of compensation for any loss or damage suffered by reason of the respondent's conduct;

(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations;

(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the Respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant. ....."

11 In the orders made by the Tribunal, after noting that the liability of the First and Second Respondents is joint and several, the order continued:

"The Applicant is entitled to recover the full amount awarded from either Respondent. The Tribunal will assess the respective contributions to be made between the Respondents after application by either Respondent to the Registrar to fix a date for hearing the application."

12 In making an order with reference to the right to make an application for contribution, no submission at that stage had been made by the parties seeking an order for contribution and the Tribunal had not applied itself to the issue whether under the terms of the Act, the Tribunal has authority to determine the rate of contribution between Respondents who have been found jointly and severally liable under Section 53(2) of the Act. As a result of the application by the First Respondent that has now been brought before the Tribunal, the issue has been raised as to whether the Tribunal has power to make such a determination and to make effectively, an order as to the rate of contribution to be made by the Respondents.

13 In Hopper v. Mt Isa Mines Limited [1999] 2QDR.496, Moynihan J of the Supreme Court of Queensland considered an appeal from the Anti-Discrimination Tribunal (Q) in which the Tribunal made findings of sexual harassment and found that the First Appellant was jointly and severally liable pursuant to Section 133 of the Anti-Discrimination Act 1971 (Qld) for the amount of damages awarded to be paid to the complainant. The amount of damages was not apportioned amongst the Appellants, by the Tribunal, and one of the grounds of appeal required the Supreme Court to consider apportioning the damages. On the question of apportionment of damages, Moynihan J said:

"At first blush it seems extraordinary that the third, forth and fifth appellants, whose harassment was constituted by a single incident, should be treated as equally responsible with the second appellant who was in a supervisory position and whose relations with the respondent continued over a period of time. .....

The Act, however, makes no provision for apportionment. Apportionment of damages in accordance with the various parties' degree of fault is a creature of statute. It was first introduced into English maritime law in 1911 in lieu of a rule of equal division and more generally in Queensland by the Law Reform Act 1995. See discussion in Fleming, the Law of Torts (9th ed, 1998) P.306. Absent and applicable statutory provision there does not seem to have been any power to apportion."

Section 133(1) of the Anti-Discrimination Act 1991 (Qld), provides that:

"If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and civilly liable for the contravention, and a proceeding under the Act may be taken against either or both."

14 For the reasons stated later, Moynihan J may not have sufficiently distinguished the issue of apportionment, on the one hand, and the question of contribution, on the other hand. In the view of this tribunal, that distinction is an important one, in considering the powers of the Tribunal.

15 The view taken by Moynihan J that to make an award of apportionment, requires a distinct provision in a statute such as the Anti-Discrimination legislation, is a view that is supported in other jurisdictions. In De La Rosa & Anor; Exparte Norgard v Rodpat Nominees Pty Limited [1991] 31FCR83, French J, considered an application for the joining by way of cross claim of additional respondents for breach of the Trade Practices Act 1974 (CTH). The additional respondents were sough to be joined by the application of Section 87 (1)(A) of the Trade Practices Act. That Section provides that the Court may order a person who engaged in conduct in contravention of the Act to pay compensation to the person who suffered loss as a result of the contravention. It was sought to join by cross claim, respondents who it was alleged were obliged to indemnify or contribute to the loss suffered by the claimant. French J declined to make the order to join additional respondents as, in his opinion, there was no mechanism in Section 87 nor in the Trade Practises Act generally, which would enable the Court to make orders for contribution or indemnity against persons who may have contributed to the loss.

16 There is no provision in the Act which specifically empowers the Tribunal to make an order either for contribution amongst parties who have joint and several liability under Section 53 (2) of the Act or generally, to make orders for apportionment of damages. The Tribunal here, is not concerned with the question of the power of apportionment. In relation to the power to make an order for contribution, it was submitted to the Tribunal that it is open to the Tribunal to imply that such a power arises under Section 113 (1)(b)(I). Decisions in Hopper and De La Rosa take the view that only express power enables a court or tribunal to make awards for contribution. Further weight to that view arises under Section 123(1) of the Act which is in the following terms:

"A contravention of this Act shall attract no sanction or consequence, whether a criminal or civil, except to the extent expressly provided by this Act."

17 There appears to be no room for implying authority unless the authority is contained within the terms of the provisions of the Act.

18 As noted by the Tribunal in the orders that it made in these complaints, the effect of a finding of joint and several liability under Section 53(2) of the Act, is that the complainant has the right to elect to recover the amount of damages from one or more of the Respondents and to determine whether to recover the whole of the amount of the award against either of the Respondents or in such proportion amongst the respondents as the complainant may elect. This right of election in the complainant is a valuable attribute to the claimant's rights, especially where one or more of the Respondents are more likely to have assets capable of meeting the claimant's right of recovery.

19 The right of election arising out of a joint and several liability amongst several respondents is to be contrasted with the exercise of the power of apportionment of damages amongst several respondents. In the case of an order for apportionment of damages, the complainant is restricted to recovering the amount apportioned against each respondent, irrespective of the respondent's capacity to fully respond to that liability. The distinction between the rights flowing from an order for apportionment on the one hand and the rights flowing to a complainant entitled to exercise the right of recovery jointly and severally against several respondents, is important not only in its recognition, but in its practical application and the exercise by the complainants of rights flowing from an order made by the Tribunal.

20 The cases of Burke and Gulliver, did not address this distinction. Neither decision addressed the issue of the application of the provisions of Section 53(2) of the Act or an equivalent provision. It is the view of the Tribunal that the decisions in those cases should be confined to the question of apportionment and for the reasons already given there remains, in the view of this Tribunal, a question of whether the Tribunal has authority to make an order for apportionment.

21 The right that attaches to an Applicant as a consequence of the finding of joint and several liability under Section 53(2), should be preserved and should not be altered or interfered with by an order for contribution or apportionment. The right inter-se between the Respondents to claim contribution is an issue that does not directly affect the Applicant. The right to claim contribution and the manner in which such a claim should be examined, are issues which, in the view of the Tribunal, do not fall to be determined by the Tribunal under the Act.

22 Although the Tribunal is required to consider the provisions of the Act as remedial legislation and to interpret the provisions in a broad and beneficial manner, it nevertheless is constrained by the natural meaning of the words of the Act. To be effective, a claim for contribution must be supported in the ultimate by orders which the Tribunal is entitled to make. In the view of the Tribunal the provisions of Section 113 of the Act are not sufficiently broad to enable the Tribunal to make orders inter-se between Respondents as to the amount that respectively they should contribute as a result of an order made pursuant to the application of Section 53(2) of the Act. This lack of authority in the Tribunal to make orders between respondents for contribution, does not affect the right of the claimant to recover the whole or part of the amount awarded against one or more of the respondents.

23 Section 82 of the Administrative Decisions Tribunal Act 1997 provides the mechanism for recovery of amounts ordered to be paid by the Tribunal. That Section is in the following terms:

"82 (1) For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty) the amount is to be certified by the Registrar.

(2) A certificate given under this section must identify the person liable to pay the certified amount.

(3) A certificate of the Registrar that:

(a) is given under this section; and

(b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,

operates as such a judgment.

(4) A party to proceedings in respect of which an amount has been certified by the Registrar under this section may apply to the Tribunal for a review of the decision to certify that amount."

24 This section operates effectively whether or not the Tribunal has made orders for contribution. The Section can be applied to the recovery of amounts between the Applicant and the Respondents. A difficulty under the Section may arise when the Applicant seeks to recover under that Section an amount against either of the Respondents, as the Registrar will need to consider the terms on which a certificate should be issued at the behest of the Applicant against one only of the Respondents. Some evidence of the election of the claimant will be required. This difficulty would not be any the less if the Tribunal had power to order contribution between the Respondents. It should be noted however that the difficulty would be overcome if an order of apportionment were made but the Tribunal does not consider that processing difficulties of this type, govern the determination of the substantive issue as to whether the Tribunal has authority to determine rights of contribution between Respondents.

Finding of the Tribunal

25 The Tribunal concludes that the Act does not contain a provision which enables the Tribunal effectively to make orders as to the amount of contribution which the Respondents in these matters might be entitled to claim between them, and accordingly the Tribunal does not have the power to examine the rights of contribution between the Respondents, arising as a consequence of the application of Section 53(2) of the Act.

Application for Costs

26 In its decision in each complaint, the Tribunal made an order in the following terms:

"If the parties to this inquiry are unable to agree upon an award and assessment of the costs of this inquiry and the hearing on 24 September 1999 within a period of 21 days of the date of this decision, any one of the parties is at liberty to apply to the Registrar to fix a date for hearing an application by the Tribunal to determine the question of those costs."

27 Pursuant to that order, the Applicant in each complaint has made application seeking a specific order from the Tribunal directing the first and second Respondents, jointly and severally, to be responsible to the respective Applicants for the payment of the costs of those Applicants in respect to the proceedings on 24 September 1999; the seven days of the hearing of the inquiry at Coffs Harbour; and the costs of the hearing of the applications the subject of this decision held on 19 September 2001. Written submissions were received by the Tribunal from the Applicant and the First Respondent in relation to each of the applications heard on 19 September 2001.

28 The extent of the authority of the Tribunal to award costs was distinctly stated by the Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001] NSWADTAP 10 at 15:

"The discretionary costs rule

64 Section 114(1) establishes a rule in relation to costs of an inquiry under the ADA: "each party to an inquiry shall pay his or her own costs". That rule is subject to section 114(2) in which the Tribunal is empowered to make "such order as to costs ... as it thinks fit" where it "is of the opinion in a particular case that there are circumstances that justify it doing so".

65 The Tribunal has a discretion to depart from the rule that each party shall pay his or her own costs, and the issue raised by the appellant is whether the Tribunal erred in law in the exercise of that discretion.

66 The discretion and authorities relating to it were discussed in Gallagher v NSW Police Service [1998] NSWEOT. Two points made there are worth repeating for the purposes of this appeal: the discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made.

67 In paragraph 6 of its reasons in the case, the Tribunal said correctly that section 114(1) "requires that in the normal course, an award of costs would not be made". In paragraph 9 the Tribunal said that `there has to be something over and beyond a normal course of circumstances to justify the making of an award of costs". This should be understood to mean nothing other than that the presumption of section 114(1) "must yield" when in a particular case there are circumstances justifying the making of a costs order (Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 at page 315). To similar effect, there may be in a particular case "circumstances which justify the departure from the general rule" (Australian Postal Commissioner v Dao & Ano (No 2)(1986) 6 NSWLR 497 at 505)."

Respondent's Submission

29 The First Respondent submitted that the Tribunal lacked jurisdiction to make an award for costs where the liability of the First Respondent arose under Section 53(2) of the Act. The submission asserts that the Tribunal has no statutory power to award costs on a joint and several basis and that Section 53(2) of the Act imposes joint and several liability in strictly limited circumstances where the employer and the employee "are subject to any liability arising under this Act in respect of the doing of the act they are jointly and severally subject to that liability." The submission proceeds that the liability referred to in the Section refers to unlawful discriminatory conduct, which does not include or contemplate liability for the costs of proceedings, or of an inquiry under the Act, or an application for costs.

30 The Tribunal considers that the terms of Section 53(1) and (2) of the Act are sufficiently broad to encompass liability under the Act, both for the discriminatory conduct and for an ancillary liability for costs relating to the determination of the discriminatory conduct and of the proceedings associated with those determinations. As the legislation is remedial and should be given a broad interpretation, the reference in Section 53(2) of the Act to "any liability arising under this Act in respect of the doing of the Act" is sufficient, in a broad context, to encompass liability for the costs associated with the determination of the discriminatory nature of the act and the damages that were suffered by the Applicants as a consequence of that conduct. It is not likely, in the opinion of the Tribunal, that the legislative intent of Section 53(2) was to provide an exception to the discretionary power of the Tribunal to make an award for costs under Section 114(2) of the Act, in circumstances where the liability of one or more Respondents is a joint and several liability arising under Section 53(2) of the Act.

31 The First Respondent further submitted that the Tribunal have regard to the justification for the directors of the First Respondent to having acted reasonably in adopting an anti-discrimination policy for the conduct of their employees at the Motel and in their instructions to their Managers in relation to their conduct with employees at the Motel. It was submitted that the directors of the First Respondent relied on the wording of a booklet entitled "A Guide for Respondents" issued by the Anti-Discrimination Board of NSW and printed in 1997 and specifically referred to the passage that is underlined in the following extract from that booklet:

"Who is legally liable for discrimination, harassment or vilification?

In general, it is against the law for any organisation covered by the NSW Anti-Discrimination Act to act in a discriminatory way. If your organisation, or someone who is authorised to act on your behalf, such as a senior official, acts in a discriminatory way, your organisation will be legally responsible for the discrimination. In general your organisation is also legally responsible if any of your employees behave in a discriminatory way. You could be liable for discrimination committed between employees, if you (or one of your appointed representatives - for example, an manager/supervisor) knew about it (or should have known about it) and didn't do anything to stop it, or prevent it from happening again. Similarly, if another organisation, authorised to act on your behalf, such as a recruitment agency, discriminates unlawfully, then your organisation will be responsible for that representative's actions - unless the representative was acting against your specific instructions."

32 The adequacy of the steps taken by the directors of the First Respondent to discharge their liability for discriminatory acts of their employees, so far as those steps were relevant in the circumstances of these inquiries, was dealt with in the decisions of the Tribunal and, in effect, those steps were found to be insufficient to prevent the First Respondent from having joint and several liability with the Second Respondent for the discriminatory acts perpetrated against each Applicant. No evidence was presented to the Tribunal at the inquiries to the effect that the directors of the First Respondent had relied on the statement referred to in the booklet issued by the Anti-Discrimination Board. In considering that submission, the Tribunal has had regard to the totality of the statements in the passage quoted from the booklet. In the view of the Tribunal, the directors of the First Respondent were not justified in relying on the particular passage that they say they relied on in the passage quoted from the booklet. They should have had regard to the more specific statements in the passage which draws attention to the liability of an employer for the discriminatory acts of its employees. When consideration is given to the whole of the passage in the booklet and to the findings of the Tribunal on the issue of the vicarious liability of the First Respondent, the Tribunal is persuaded not to give greater emphasis to the First Respondent's misconception of its responsibility under the Act than to its finding that the First Respondent failed to adequately supervise the Second Respondent and thereby prevent the discriminatory conduct occurring and the consequent stress and physical and mental harm suffered by each Applicant.

Justification for an Order for Costs

33 Several factors apply in the circumstances relating to each inquiry which, in the opinion of the Tribunal, justifies the making of an order for costs in favour of the Applicants.

34 The proceedings on 24 September 1999 were intended to cover both an application for the joinder of the Second Respondent as a party to the proceedings, and to proceed on that day and on the following day with the hearing of the inquiries. Both X and V had travelled from Coffs Harbour to Sydney for the purposes of instructing Counsel during those hearings. Although there had been several preliminary hearings relating to directions, the First Respondent had adequate notice of the nature of the hearings on 24 September 1999. The First Respondent was represented by one of its directors and had no legal representation. The director submitted to the Tribunal that he was not in a position to proceed on that day or the following day and made submissions to the effect that he could not understand why the First Respondent was a party to the proceedings in any event. The Tribunal made an order joining the Second Respondent but was obliged to abort the commencement of the hearing of the inquiry, at the behest of the director of the First Respondent, because of his lack of preparedness to proceed with the inquiry. As the Applicants have been successful in establishing their complaints, the Tribunal considers that it is appropriate that the Applicants be entitled to recover from the Respondents, the costs which they suffered in relation to the proceedings on 24 September 1999 and that those costs include the expenses incurred by each Applicant in attending the hearing in Sydney on that day.

35 In relation to the seven days of hearing of the inquiry and of the costs of the Applicants associated with those days of hearing and the preparation for the hearing, the following factors are relevant in justifying the making of an award for the Respondents to pay those costs.

(a) The amount of damages awarded to the Applicants will be seriously eroded by the costs suffered by the Applicants in establishing their complaints.

(b) On the first day of the hearing the First Respondent submitted that in the absence of the Second Respondent, the Tribunal was not justified in proceeding for the holding of the inquiry. The First Respondent pointed to the question of the adequacy of the service on the Second Respondent of the notice of the hearing and of some of the Affidavits filed by the parties. The First Respondent sought that the three days set aside for the hearing at Coffs Harbour should be abandoned and further dates set for the hearing of the inquiry after service on the Second Respondent. The Tribunal directed that immediate notice be given to the Second Respondent, by facsimile message, with copies of the relevant Affidavit evidence. The Second Respondent sent a message to the Tribunal to the effect that he was not able to attend the hearing on the subsequent two days at Coffs Harbour. As the Second Respondent has shown a previous lack of intention to attend preliminary hearings of the matter, the Tribunal determined that it should proceed with, and in fact commenced the hearing of the inquiry on 24 February 2000. The hearing of the inquiries occupied a total of 6 hearing days. The Applicants have submitted that the actions of the First Respondent in requiring the abandonment of the hearings at Coffs Harbour was not appropriate and that it was not appropriate for the Applicants to bear the costs associated with the loss of the first day's hearing, when, as it transpired, the Second Respondent did not intend to appear at any of the hearings of the inquiry. The Tribunal considers that the First Respondent in the circumstances was justified in the approach it took which resulted in the abandonment of the first day's hearing. The Tribunal considers that the Applicant should bear some responsibility for the loss of the first day's hearing as the Applicant had a responsibility to ensure that the Second Respondent had received adequate notice of the hearing dates. The Tribunal accordingly does not include the costs of the first day of the hearing on 23 February 2000 as part of its order for the costs of the hearing days.

(c) On the subsequent six hearing days, the First Respondent strenuously defended the claim that it was liable for any discriminatory conduct of the Second Respondent towards the Applicants. Counsel for the First Respondent acknowledged that the First Respondent was not in a position to deny the details of the allegations of sexual harassment perpetrated against them by the Second Respondent. However, the First Respondent did not admit that the various acts of sexual harassment alleged to have been committed by the Second Respondent had occurred. As a consequence it was necessary for each Applicant and supporting witnesses to be examined and cross examined on the details of those allegations. In the result, a large proportion of the time taken at the hearing related to the detailed examination and cross examination of these witnesses.

(d) In addition, the First Respondent contested the medical evidence of each Applicant, where it was directed to establish that the Applicants continued to suffer psychological adverse consequences flowing from the incidents of sexual harassment. The First Respondent presented its own medical evidence to demonstrate that the psychological impacts on the Applicants was attributable to causes other than or in addition to the experiences suffered as a consequence of the actions of the Second Respondent. This medical evidence took up a not inconsiderable proportion of the time of the hearings.

(e) A further defence raised by the First Respondent related to the issue of the liability of the First Respondent under Section 53 of the Act as the employer of the Second Respondent, for the acts of its employee. An amount of time associated with evidence to support this defence, was taken at the hearing. The first Respondent did not establish this defence, to the satisfaction of the Tribunal.

36 In the view of the Tribunal, notwithstanding that the First Respondent was entitled to strenuously defend its position in the manner adopted at the hearing, the findings of the Tribunal did not accede to the matters raised in support of the position of the First Respondent. Where a party unsuccessfully opposes claims of sexual harassment and, as in these complaints, does so to the full extent of the defences available to it, the Tribunal is not solely on those grounds entitled to make an award for costs in favour of the successful Applicants. However, the Tribunal is justified in exercising its discretion to make an award for costs in favour of an Applicant where the combined effect of the costs incurred by the Applicant in presenting the claims of discrimination and in opposing the defences raised against those claims, would result in the amount of damages awarded to the Applicant being seriously eroded or overridden completely by the amount of costs incurred by the Applicant in establishing the Applicant's claim and overcoming the defences raised by the Respondent.

Award of Costs

37 In these applications, the Tribunal considers that the cumulative effective of the matters referred to in the previous section, justifies the Tribunal in exercising its discretion in favour of each Applicant and to direct that the Respondents jointly and severally be liable to each Applicant for the costs associated with the following aspects of their claims of discrimination:

(1) The costs of the Applicant associated with the hearing before the Tribunal on 24 September 1999, including the costs and expenses incurred by the Applicant of attending at Sydney for the purposes of the hearing on that day.

(2) The costs incurred by the Applicant in relation to the hearing of the inquiry into the Applicant's complaints held on 24 and 25 February 2000, 17 and 18 April 2000 and 17 and 18 May 2000. It is noted for the reasons referred to that this order does not include the costs relating to the hearing on 23 February 2000.

(3) As the Applicant has been successful in relation to both applications made before the Tribunal on 19 September 2001, the award will include the costs of the Applicant associated with those applications and the submissions made by the Applicant in relation to those applications.

Orders of the Tribunal

1. The Tribunal determines that the Respondents be jointly and severally liable to each Applicant for the costs on a party/party basis.

2. That the amount of the costs be agreed between the parties within sixty (60) days of the making of these orders.

3. If the parties are unable to agree upon the amount of costs within the period of 60 days, costs are to be assessed pursuant to the Legal Profession Act 1987.