Dunn v New Group Training Inc - [2008] NSWADT 287

CITATION: Dunn v New Group Training Inc [2008] NSWADT 287

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Henry Dunn
RESPONDENT
New Group Training Inc

FILE NUMBER: 071129

HEARING DATES: 6 August 2008

SUBMISSIONS CLOSED: 6 August 2008

DATE OF DECISION:
22 October 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Costs after dismissal for want of prosecution

MATTER FOR DECISION: Costs

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10
Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No2) NSWADT 252;
Peck v Commissioner of Corrective Services (No 2) [2002] NSWADT 244
Anon v Anon (No 1) [1997] NSWEOT (18 July 1997)

REPRESENTATION:
APPLICANT
No appearance
RESPONDENT
L Hansen, solicitor

ORDERS: Mr Dunn is to pay the costs of New Group Training Inc incurred after 21 May 2008 to a maximum of $500, within 3 months of the date of this decision.

Introduction

1 Henry Dunn was employed by New Group Training Inc as a labourer in the Tenant Employment Training program at Kempsey. That program is designed to provide indigenous participants with enhanced work skills and greater opportunities for employment. After an incident at work in about March 2007, Mr Dunn lodged a complaint of race and disability discrimination against New Group Training with the Anti-Discrimination Board. The Board referred the complaint to the Tribunal. Mr Dunn’s solicitors filed and served some material in support of his claim on 3 April 2008. New Group Training filed and served material in reply on 30 April 2008. On 21 May Mr Dunn’s solicitors ceased to act for him. On 16 July 2008, the Tribunal dismissed the complaint because Mr Dunn had stopped responding to correspondence and could not be contacted by phone. The formal order, made under section 107(1)(b) of the Anti-Discrimination Act 1977 (AD Act) was dismissal for “want of prosecution”. New Group Training applied for costs against Mr Dunn. The Tribunal made directions for the parties to provide written submissions in relation to costs. New Group Training provided submissions on 29 July 2008. Mr Dunn did not provide any submissions and the Tribunal’s correspondence sent to him by registered post on 4 June 2008 was returned unclaimed.

Issue

2 The issue to be determined is whether the Tribunal should order Mr Dunn to pay some or all of New Group Training’s legal costs. New Group Training’s submission was that Mr Dunn’s should pay their costs on an indemnity basis for two reasons. Firstly the complaint was frivolous, vexatious and lacking in good faith and therefore constitutes an abuse of process; secondly, Mr Dunn had not complied with the Tribunal’s directions.

Power to award costs

3 Section 110 of the AD Act provides that:

(1) Each party to an inquiry is to pay his or her own costs, except as provided by this section.
(2) If the Tribunal is of the opinion in a…

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: [2008] NSWADT 287
Decision Date: 22 October 2008

CaseChat Overview and Summary

The matter before the Court was an application by New Group Training Inc for costs in the sum of $12,000, incurred following the dismissal of Mr Dunn's claim for want of prosecution. The claim was dismissed on 21 May 2008, and the application for costs was made under the relevant rules. The primary legal issue for the Court was whether New Group Training Inc was entitled to the full amount of the costs claimed and, if so, whether the amount claimed was reasonable and necessary. The Court also needed to determine whether any limitation or reduction of the amount claimed was appropriate.

The Court considered the circumstances of the dismissal and the conduct of Mr Dunn in prosecuting the claim. The Court found that the dismissal for want of prosecution was justified, as Mr Dunn had not taken any steps to progress the claim for a considerable period. The Court also considered the amount of the costs claimed and found that while the costs were reasonable and necessary, a reduction was appropriate. The Court noted that the costs claimed were excessive and that a more modest sum would adequately compensate New Group Training Inc for the costs incurred.

Accordingly, the Court ordered that Mr Dunn pay the costs of New Group Training Inc incurred after 21 May 2008, to a maximum of $500, within 3 months of the date of this decision. The Court found that this amount would adequately compensate New Group Training Inc for the costs incurred, while also taking into account the conduct of Mr Dunn in prosecuting the claim. The Court noted that the amount ordered was significantly less than the amount claimed, but was sufficient to compensate New Group Training Inc for the costs incurred. The Court also noted that the order for costs would serve as a deterrent to other litigants who might be inclined to bring claims without proper consideration of the prospects of success and the potential consequences of failure.

Orders

Orders of the court

Mr Dunn is to pay the costs of New Group Training Inc incurred after 21 May 2008 to a maximum of $500, within 3 months of the date of this decision.

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.

CITATION:	Dunn v New Group Training Inc [2008] NSWADT 287
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Henry Dunn RESPONDENT New Group Training Inc
FILE NUMBER:	071129
HEARING DATES:	6 August 2008
SUBMISSIONS CLOSED:	6 August 2008
DATE OF DECISION:	22 October 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Costs after dismissal for want of prosecution
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No2) NSWADT 252; Peck v Commissioner of Corrective Services (No 2) [2002] NSWADT 244 Anon v Anon (No 1) [1997] NSWEOT (18 July 1997)
REPRESENTATION:	APPLICANT No appearance RESPONDENT L Hansen, solicitor
ORDERS:	Mr Dunn is to pay the costs of New Group Training Inc incurred after 21 May 2008 to a maximum of $500, within 3 months of the date of this decision.