Linnell v Seachem Australia Pty Ltd (No 2)

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Linnell v Seachem Australia Pty Ltd (No 2) [2011] NSWADT 178
Hearing dates:	On the papers, written submissions closed 25 May 2011
Decision date:	22 July 2011
Jurisdiction:	Equal Opportunity Division
Before:	C Huntsman, Judicial Member N Hiffernan, Non Judicial Member Z Antonios, Non Judicial Member
Decision:	The application for costs is refused
Catchwords:	Costs application; whether Applicant was vexatious in pursuing claim; whether fair to award costs.
Legislation Cited:	Section 110 Anti-Discrimination Act 1977; Section 88 Administrative Decision Tribunal Act 1997
Cases Cited:	Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254 Rae v Commissioner of Police, New South Wales Police Force (GD) [2011]NSWADTAP 30 Haas v Hosking (No 2) [2010] NSWADT 203 Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61 Linnell v Seachem Australia Pty Ltd [2010] NSWADT111
Category:	Costs
Parties:	Patricia Linnell (Applicant) Seachem Australia Pty Ltd (Respondent)
Representation:	P Linnell (Applicant in person) Michael Flaherty, solicitor
File Number(s):	091114

REasons for decision

Background

1. This was an application for costs, made by the Respondent, Seachem Australia Pty Ltd, that the Applicant pay the Respondent's costs in the proceedings. On 25 March 2011 the Tribunal made an order that the application by the Applicant, Ms Linnell, before the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal),alleging sexual harassment and victimisation by the Respondent, be dismissed (refer Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61).

1. The history of the proceedings was that on 18 February 2009 the Applicant made a complaint to the Anti-Discrimination Board of sexual harassment and victimisation. The complaint was subsequently referred to the Tribunal. In the proceedings the Applicant alleged that the Respondent unlawfully sexually harassed her, in her employment, when, on 15 January 2009, a co-worker, Ms Humphreys, stated to a warehouse employee (in reference to the Applicant) that "Trish can go and suck someone's dick". The Applicant alleged that the Respondent unlawfully victimised her when, following her complaint about Ms Humphreys' conduct to the Director of the Respondent company, Mr Whiteley, no action was taken against Ms Humphreys. She further alleged that Mr Whiteley then began to constantly unfairly criticise her work, which she claimed culminated in the unlawful termination of her employment on 10 February 2009. The Respondent maintained that the complaint had been investigated, that Ms Humphreys denied the allegation and was nevertheless given a warning. The Respondent's case was that the Applicant was terminated for poor work performance within the probationary period of her employment, some four weeks after the complaint was made.

1. On the date of the decision by the Tribunal, being 25 March 2011, detailed written reasons for decision were published and reference should be had to the written reasons for decision: Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61.

1. The Tribunal made directions for filing of written submissions in relation to the application for costs and both parties filed written submissions. The application for costs…