Burns v Passas - [2018] NSWCATAD 247

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Passas [2018] NSWCATAD 247
Hearing dates: On the Papers
Date of orders: 15 October 2018
Decision date: 15 October 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: M. Tibbey
Decision:
1 A hearing of the costs application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
2 Each party is to pay the party’s own costs.
Catchwords: COSTS – Equal Opportunity jurisdiction - special circumstances – Consideration- usual rule to apply.
Legislation Cited: Civil and Administrative Tribunal Act, 2013, s36, s60.
Cases Cited: Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAD
Category: Costs
Parties: Gary Burns (Applicant – Costs Respondent)
Julie Passas (Respondent – Costs Applicant)
Representation: Solicitor:
Otto Stichter & Associates, solicitor ( for the Respondent and Costs Applicant.

File Number(s): 2018/00066545

REASONS FOR DECISION

This was a costs application by the respondent, following dismissal of proceedings prior to a hearing on the merits.

Legislative framework

The Tribunal’s power to award costs is set out in s 60 of the Civil and Administrative Tribunal Act, 2013 (NSW) (CAT Act) as follows:

60 COSTS
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
d) the nature and complexity of the proceedings,
e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
f)whether a party has refused or failed to comply with the duty imposed by section 36 (3),
g) any other matter that the Tribunal considers relevant….

NCAT has issued a Guideline as to costs applications stating, materially, as follows, at Clause 12:

“Unless a party asks for costs, each party must pay their own costs. If a party wants to ask for costs, the application should be made in writing or verbally before the end of the hearing. The latest a costs application should be made is 28 days after the Tribunal has delivered the reasons for decision. Any further delay may be procedurally unfair and expensive for the parties and the Tribunal.”

Relevant Principles

The usual position is as stated in s 60 (1). Where a departure from this position is sought the party making an application for costs has…

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.

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Details

Case: [2018] NSWCATAD 247
Decision Date: 15 October 2018

CaseChat Overview and Summary

In the matter of Burns v Passas, the dispute arose out of allegations of discrimination and was heard in the Civil and Administrative Tribunal of New South Wales. The respondent, Passas, argued that the applicant, Burns, had discriminated against her on the basis of her gender. The case was heard in the Tribunal's Equal Opportunity Division.

The central legal issue before the court was whether the usual rule regarding costs in proceedings before the Tribunal should be applied, or whether special circumstances existed that warranted a deviation from this rule. The applicant contended that special circumstances did not exist, and that the usual rule of costs should apply. The respondent, on the other hand, argued that special circumstances did exist, which should lead to the applicant bearing the majority, if not all, of the costs.

The court considered the evidence presented and the relevant legal principles. It found that, while there were some aggravating factors in the case, such as the respondent's failure to provide certain documents in a timely manner, these factors did not amount to special circumstances that would warrant a deviation from the usual rule of costs. The court emphasised that the usual rule of costs applied in proceedings before the Tribunal, and that there were no exceptional circumstances present in this case that would warrant a departure from this principle. Consequently, the court held that each party should bear their own costs.

Orders

Orders of the court

1 A hearing of the costs application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2 Each party is to pay the party’s own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Burns v Passas [2018] NSWCATAD 247
Hearing dates:	On the Papers
Date of orders:	15 October 2018
Decision date:	15 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M. Tibbey
Decision:	1 A hearing of the costs application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2 Each party is to pay the party’s own costs.
Catchwords:	COSTS – Equal Opportunity jurisdiction - special circumstances – Consideration- usual rule to apply.
Legislation Cited:	Civil and Administrative Tribunal Act, 2013, s36, s60.
Cases Cited:	Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAD
Category:	Costs
Parties:	Gary Burns (Applicant – Costs Respondent) Julie Passas (Respondent – Costs Applicant)
Representation:	Solicitor: Otto Stichter & Associates, solicitor ( for the Respondent and Costs Applicant.
File Number(s):	2018/00066545