Right across Australia there are a number of ‘non-cost’ legal jurisdictions which enable people to take legal action without the risk of having to pay the costs of the other parties if they lose.
But in recent times, the benches of these non-cost commissions and courts – such as administrative review tribunals and industrial tribunals – are more frequently exercising their narrow powers to award costs in cases where it appears someone is set on a course of litigating to harass or annoy.
One recent case is the marathon dispute between Robert DeCastella’s charitable organisation SmartStart for Kids Ltd and a disgruntled volunteer who worked for the organisation. The ACT Civil and Administrative Tribunal – generally a non-costs jurisdiction – dismissed Mr Bell’s claims of discrimination and in a decision delivered on 27 September 2013 actually awarded costs against Mr Bell.
Mr Bell was involved as a volunteer in the development and delivery of an Indigenous Marathon Project. He was not paid for his time, but under a contract with the Association was entitled to reimbursement of mobile phone, travel and other expenses.
After his services to the organisation were terminated, he commenced eight separate legal actions against Robert DeCastella and SmartStart for Kids, claiming for unfair dismissal, alleged entitlements from an alleged employment contract, unlawful political conviction and professional discrimination, alleged victimisation, and a claim in the ACT Civil and Administrative Tribunal for race discrimination. He alleged that he was discriminated against as he was non indigenous.
The ACT Civil and Administrative Tribunal described the motivation for Mr Bell’s actions as being likely designed to harass Mr DeCastella rather than by a genuine belief that he had been discriminated against. It found his claims to be unreasonable, without foundation and vexatious.
Accordingly, the ACT Civil and Administrative Tribunal ordered him to pay certain costs to the respondents resulting from his unreasonable conduct of the claim.
Although Robert DeCastella and SmartStart for Kids will not recover all of their costs of the proceedings – not to mention their time and other resources defending the claims – the decision makes it clear that applicants should not utilise non-costs jurisdictions to bring frivolous or unmeritorious claims. Those who do, run a real risk of financial detriment.