Laws v Burns (EOD)

[2007] NSWADTAP 72

Appeal Panel - Internal

CITATION:	Laws v Burns (No. 2) [2007] NSWADTAP 72
PARTIES:	APPELLANT John Laws RESPONDENT Gary Burns
FILE NUMBER:	079047
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	29 November 2007
DATE OF DECISION:	14 December 2007
BEFORE:	O'Connor K - DCJ (President); Grotte E - Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	051044
DATE OF DECISION UNDER APPEAL:	07/27/2007
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Legal Profession Act 2004
CASES CITED:	Burns v Laws (No 3) [2007] NSWADT 164 Chi v Coles Supermarket [2006] NSWADTAP 3 Xu v Sydney West Area Health [2006] NSWADT 3 Burns v Laws [2005] NSWADT 229 Burns v Laws (No 2) [2007] NSWADT 47 Sunol v Collier [2006] NSWADTAP 51 Wentworth v Rogers [2002] NSWSC 709 House v The King (1936) 55 CLR 499 CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
REPRESENTATION:	J Robb, , solicitor, Banki Haddock Fiora D Rofe QC instructed by N Llewellyn, solicitor
ORDERS:	1. Appeal dismissed.

1 This appeal relates to an order of the Equal Opportunity Division of the Tribunal requiring the respondent to pay the applicant’s costs of an unsuccessful summary dismissal application. The formal order was as follows (see Burns v Laws (No 3) [2007] NSWADT 164 (27 July 2007):

‘1. The Respondent is to pay to the Applicant the costs of the Respondent’s application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.

2. There will be no order as to the costs of this application by the Applicant.’

2 The right to appeal against orders made under the Anti-Discrimination Act 1977 (AD Act) is given by s 115. The appeal is to be made under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 (Tribunal Act). The respondent has appealed against Order 1. He will be referred to as ‘the appellant’ in these reasons. For clarity the respondent to the appeal will be referred to in these reasons as ‘the complainant’.

3 The order was made in proceedings for the summary dismissal of proceedings, and therefore involved an ‘interlocutory function’ of the Tribunal: see Tribunal Act, s 24A(1)(h). The appeal, consequently, is an appeal against an ‘interlocutory decision’ of the Tribunal. Leave must be obtained for it to proceed. That question may be determined by a presidential judicial member sitting alone (s 113 (2B)). As to the considerations that go to the grant of leave, see, for example Chi v Coles Supermarket [2006] NSWADTAP 3; see also Xu v Sydney West Area Health [2006] NSWADT 3. In this instance the President has determined that it would be preferable if leave was not refused, as the case relates to a form of final determination (a costs order), and raises an issue as to the extent to which the public interest is relevant to the exercise of that…