Haas v Hosking (No 2)

[2010] NSWADT 203

CITATION:	Haas v Hosking (No 2) [2010] NSWADT 203
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Peter Haas RESPONDENT Phillip Hosking
FILE NUMBER:	081088
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	21 May 2010
DATE OF DECISION:	16 August 2010
BEFORE:	Perrignon R - Judicial Member; Kelleghan D - Non-Judicial Member; Monaghan-Nagle L - Non-Judicial Member
CATCHWORDS:	Costs - complaint of racial vilification - whether proceedings conducted vexatiously - whether failure to comply with Tribunal’s directions - whether proceedings unreasonably prolonged - special considerations applying to proceedings in Equal Opportunity Division
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	AT v Commissioner of Police [2010] NSWCA 131 MT v AA (no 2) EOD [2010] NSWADTAP 28 Murtough v NSW Bar Association [2008] NSWADT 166 Tu v University of Sydney (No. 2) [2002] NSWADTAP 25
REPRESENTATION:	APPLICANT In person RESPONDENT A Connolly, barrister
ORDERS:	The Respondent’s application for costs is dismissed

REASONS FOR DECISION

1 On 11 February 2010, the Tribunal dismissed a complaint of racial discrimination by Mr Haas against Mr Hosking. The proceedings were heard over a period of four days from 11 February 2009 to 6 July 2009. Mr Hosking seeks an order for his costs of the proceedings, or such of those costs as the Tribunal considers fair.

Complaint and findings

2 On 28 April 2008, Mr Haas had complained to the Anti-Discrimination Board that, on 1 November 2007, Mr Hosking had attended Mr Haas’ property at Moama and racially vilified him, by saying ‘that he was not going to have fucking Jews build anything near him’, or ‘that he was not going to let fucking Jews build a shed near him’.

3 Mr Haas did not hear the remarks. He was not present when they were allegedly made. He was not told of them until some months later, when his friend and near neighbour, Lindsay Vagg, showed him a note he had made of the remarks. Another resident, Mr Falzon, had also been present. At Mr Haas’ request, each provided a brief statement of a few paragraphs. These statements were lodged with the Board by Mr Haas in support of his complaint.

4 They were also tendered in evidence before the Tribunal. Mr Haas relied on them, and on oral evidence of Mr Vagg and Mr Falzon, to prove that the remarks had been made. The Tribunal was not satisfied that either witness was reliable. It was not satisfied that the remarks were made.

5 However, the Tribunal was satisfied that Mr Haas believed the remarks had been made, that he was genuinely affronted by them, and that, had they been made, he would have had good reason to be affronted. It was unnecessary to determine whether the remarks, if made, would have constituted racial vilification under the Anti-Discrimination Act 1977.

6 The Tribunal’s power to make costs orders in complaints referred to it under the Anti-Discrimination Act 1977 is to be found in Section 110 of that Act, which provides:

‘The Tribunal may award costs under…