Burns v Cunningham (No 2)

[2012] NSWADT 53

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Burns v Cunningham (No 2) [2012] NSWADT 53

Hearing dates:

On the papers Submissions Closed 13 March 2012

Decision date:

26 March 2012

Jurisdiction:

Equal Opportunity Division

Before:

R J Wright SC, Judicial Member
N Hiffernan, Non-Judicial Member
J Schwager AO, Non-Judicial Member

Decision:

The Tribunal orders:

1.the Respondent's application for costs be dismissed.

2. there be no order as to costs on this application.

Catchwords:

Costs - Discrimination - Vilification - Homosexual Vilification - Unsuccessful Substantive Application

Legislation Cited:

Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)

Cases Cited:

Burns v Cunningham [2011] NSWADT 240
KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8
AT v Commissioner of Police [2010] NSWCA 131

Category:

Costs

Parties:

Gary Burns (Applicant)
John Lawrence Cunninghan (Respondent)

Representation:

G Burns (Applicant in person)
M Cunningham (Respondent)

File Number(s):

101130

REASONS FOR DECISION

1. EQUAL OPPORTUNITY DIVISION (R J Wright SC, Judicial Member, N Hiffernan, Non-Judicial Member, J Schwager AO, Non-Judicial Member): The Tribunal has before it an application by the Respondent that the Applicant pay its costs of this proceeding.

1. On 17 October 2011 the Tribunal ordered that the Applicant's complaint be dismissed in whole, under s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW) ("the ADA") - see Burns v Cunningham [2011] NSWADT 240. It might be noted at this point that on reviewing its reasons for decision of 17 October 2011, the Tribunal has noticed a persistent typographical error in those reasons. In many instances, but not all, instead of referring to s 49ZT or s 49ZS of the ADA, the Tribunal's reasons refer to s 45ZT or s 45ZS of the ADA. There is no s 45ZT or s 45ZS in that Act. In all cases the Tribunal intended to refer to s 49ZT or s 49ZS or some subsection or paragraph of those sections. The Tribunal proposes to reissue the original decision with the section references corrected.

1. At the hearing of the substantive matter on 20 and 21 September 2011, no application for costs was made or foreshadowed by either party.

1. By letter dated 15 February 2012 to the Tribunal, the Respondent submitted an application for costs under s 88 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") together with written submissions and two bundles of correspondence, some of which was in evidence on the substantive hearing and some of which is before the Tribunal for the first time. The Applicant has responded to the application for costs by letter dated 20 February 2012, sent to the Tribunal. In his letter the Applicant asked that the costs application be dealt with on the papers and he enclosed his written submissions opposing the awarding of costs. By letter dated 5 March 2012, the Respondent noted that he was content for the costs application to proceed on the papers and made certain submissions in reply. Finally, the Applicant added to his written…