Cargill Australia Limited v Higginson (No.2) (EOD)

Appeal Panel

CITATION:	Cargill Australia Limited v Higginson (No.2) (EOD) [2002] NSWADTAP 33
PARTIES:	APPELLANT Cargill Australia Limited RESPONDENT William Higginson
FILE NUMBER:	019048
HEARING DATES:	14/03/02
SUBMISSIONS CLOSED:	07/24/2002
DATE OF DECISION:	10/18/2002
DECISION UNDER APPEAL:	Higginson v Cargill Australia Limited [2001] NSWADT 152
BEFORE:	Hennessy N (Deputy President); Bartley R - Judicial Member; Alt M - Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	991095
DATE OF DECISION UNDER APPEAL:	09/13/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Occupational Health and Safety Act 1993
CASES CITED:	Cargill Australia Limited v Higginson [2002] NSW ADTAP 20 Sloey v State Transit [1999] NSWADT 40 Tu v University of Sydney (No.2) (EOD) [2002] NSWADTAP 25
REPRESENTATION:	APPELLANT C Barton, solicitor RESPONDENT M Kumar, barrister
ORDERS:	No order as to costs

1 On 7 June 2002, the Appeal Panel handed down a decision in Cargill Australia Limited v Higginson [2002] NSW ADTAP 20. The Appeal Panel dismissed the appeal and reserved on the question of the costs of the appeal, pending further submissions from the parties. These reasons deal with an application for costs by the successful respondent to the appeal, Mr Higginson.

2 The Tribunal made its decision at first instance, on 13 September 2001. The decision related to a complaint of discrimination on the ground of disability by Mr Higginson against his employer, Cargill Australia Ltd (Cargill). The Tribunal found the complaint substantiated and ordered Cargill to pay to Mr Higginson the sum of $36,469.08 by way of damages.

3 Although Mr Higginson’s application for costs appears to encompass the costs of the proceedings at first instance, as well as the cost of the proceedings on appeal, we agree with Cargill that the only live issue is the costs of the appeal. Mr Higginson did not seek an order for costs of the proceedings at first instance and the Tribunal did not make any order as to costs. The Appeal Panel does not have power to award costs at first instance unless an appealable decision has been made in relation to costs. (See s 112 and s 113 of the Administrative Decisions Tribunal Act 1997 “the Tribunal Act”.) Consequently these reasons are confined to a consideration of whether costs should be awarded to Mr Higginson in relation to the appeal.

Submissions

4 Mr Higginson submitted that costs should be awarded pursuant to s 88 of the ADT Act s 114 of the Anti-Discrimination Act 1977 (ADA). Cargill submitted that s 114 creates a presumption, which the complainant must rebut, that parties must pay their own costs (Sloey v State Transit 1999 NSWADT 40 at [24].) Cargill added that the legislation does not prescribe the circumstances justifying a departure from the usual rule that each party bears his or her own costs. It follows, says Cargill, that something substantially more than success in the proceedings is needed to justify an award of costs.

5 The special circumstances nominated by Mr Higginson as justifying an…