Aydemir v Redegalli - [2011] NSWADT 198

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Aydemir v Redegalli [2011] NSWADT 198
Hearing dates: 5 August 2011
Decision date: 18 August 2011
Jurisdiction: Equal Opportunity Division
Before: Magistrate N Hennessy, Deputy President
Decision:
1. The respondent's application for costs is refused.
2. The respondent is ordered to pay the applicant $500 being the costs of responding to the respondent's application for an apology.

Catchwords: COST - complaint withdrawn and dismissed after first case conference - whether costs incurred at Anti-Discrimination Board recoverable - whether complaint lacked merit - jurisdiction to order applicant to apologise to respondent - part of application has no tenable basis in law
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Cases Cited: Haas v Hosking (No 2) [2010] NSWADT 203
AT v Commissioner of Police [2010] NSWCA 131
Category: Costs
Parties: Cigden Aydemir (Applicant)
Sergio Redegalli (Respondent)
Representation: Counsel
Paul Batley (Applicant)
D Rofe QC (Respondent)
Legal Aid NSW (Applicant)

File Number(s): 111007

REasons for decision

Introduction

EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): Ms Aydemir complained to the President of the Anti-Discrimination Board (ADB) that a large mural painted on an external wall of a building owned by Mr Redegalli breached the racial vilification provisions of the Anti-Discrimination Act 1977 ( AD Act ). The mural depicted a red ring with a red diagonal line through the middle of the ring. Inside the ring was an outline of a woman wearing a burqa and niqab. The caption on the top part of the ring said, "SAY NO TO BURQAS".

The President of the ADB referred the complaint to the Tribunal. At the first case conference, Ms Aydemir said that she was applying for Legal Aid NSW to represent her. The Tribunal set down a timetable and scheduled a second case conference. Ms Aydemir was granted legal aid. Prior to her filing any material, her lawyer telephoned and then wrote to Mr Redegalli's lawyer offering to discontinue the proceedings on the basis that there be no order as to costs. Mr Redegalli did not accept that offer. Ms Aydemir withdrew the proceedings and they were dismissed. Mr Redegalli now applies for costs and for a letter of apology. Ms Aydemir opposes those applications and applies for her costs in relation to Mr Redegalli's costs and apology applications. This application has been determined 'on the papers': Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76.

I note that both parties appear to be under a misapprehension that leave is necessary for parties to be represented by a lawyer at hearings in the Equal Opportunity Division. No such leave is required: ADT Act , s 71(1)(b).

Costs provisions

The Tribunal has power to award costs in relation to these proceedings: ADT Act , s 88(3) and AD Act , s 110. However, the general rule is that each party to proceedings is to bear their own costs: ADT Act , s 88(1). Costs may only be awarded if the Tribunal…

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 Aydemir v Redegalli

Details

AGLC: Aydemir v Redegalli [2011] NSWADT 198
Case: [2011] NSWADT 198
Decision Date: 18 August 2011

CaseChat Overview and Summary

Aydemir v Redegalli is a case that came before the court to address issues arising from a complaint of discrimination. The applicant, Aydemir, had filed a complaint against the respondent, Redegalli, at the Anti-Discrimination Board, which was subsequently withdrawn and dismissed. The core of the dispute in this case was whether the costs incurred by the respondent in responding to the complaint could be recovered, whether the complaint was without merit, and if the court had the authority to compel the applicant to apologise to the respondent. The court was required to determine the appropriate legal framework for handling such matters, particularly focusing on the costs incurred by the respondent and the merits of the original complaint.

The legal issues that the court had to resolve included the recoverability of costs incurred by the respondent in defending against the complaint at the Anti-Discrimination Board, the question of whether the original complaint was without merit, and the court's jurisdiction to order the applicant to apologise to the respondent. The court also needed to assess whether part of the respondent's application had a tenable basis in law.

The court examined the relevant legislation and case law to reach its decision. It found that the application for costs incurred at the Anti-Discrimination Board was not recoverable because the court did not have the jurisdiction to order the applicant to pay such costs. Regarding the merits of the complaint, the court determined that the complaint was not without merit, as it had been withdrawn and dismissed, not on the basis of its validity but due to procedural issues. Concerning the jurisdiction to order an apology, the court held that while it could order an apology if the complaint was found to be without merit, this was not applicable here as the complaint was dismissed on procedural grounds. The court concluded that the respondent's application for an apology had no tenable basis in law.

In conclusion, the court refused the respondent's application for costs, ordered the respondent to pay the applicant $500 for the costs incurred in responding to the application for an apology, and dismissed the application for an apology. This decision underscores the importance of procedural compliance in discrimination cases and the limitations of court jurisdiction in ordering apologies.

Orders

Orders of the court

1. The respondent's application for costs is refused.

2. The respondent is ordered to pay the applicant $500 being the costs of responding to the respondent's application for an apology.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Aydemir v Redegalli [2011] NSWADT 198
Hearing dates:	5 August 2011
Decision date:	18 August 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	1. The respondent's application for costs is refused. 2. The respondent is ordered to pay the applicant $500 being the costs of responding to the respondent's application for an apology.
Catchwords:	COST - complaint withdrawn and dismissed after first case conference - whether costs incurred at Anti-Discrimination Board recoverable - whether complaint lacked merit - jurisdiction to order applicant to apologise to respondent - part of application has no tenable basis in law
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Haas v Hosking (No 2) [2010] NSWADT 203 AT v Commissioner of Police [2010] NSWCA 131
Category:	Costs
Parties:	Cigden Aydemir (Applicant) Sergio Redegalli (Respondent)
Representation:	Counsel Paul Batley (Applicant) D Rofe QC (Respondent) Legal Aid NSW (Applicant)
File Number(s):	111007