Margan v Taufaao (No. 2) - [2017] NSWCATAD 246

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Margan v Taufaao (No. 2) [2017] NSWCATAD 246
Hearing dates: On Papers
Date of orders: 10 August 2017
Decision date: 10 August 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Dr M Murray, General Member
Decision:
The Respondent, Mr Taufaao, is to pay the Applicant Mr Margan the sum of $250 in costs within 21 days of the publication of this decision.

Catchwords: Costs
Legislation Cited: Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Cases Cited: George v Commissioner of Police, NSW Police Force [2013] NSWADT 76
Margan v Taufaao [2017] NSWCATAD 216
Shandil v Animal Welfare League NSW [2013] NSWADT 15
Category: Costs
Parties: David Margan (Applicant)
Paul Taufaao (Respondent)
Representation: Self-represented (Applicant)
No appearance (Respondent)

File Number(s): 2015/00383313

REASONS FOR DECISION

On 30 June 2017, the Tribunal published a decision in which it found Mr Taufaao had unlawfully vilified Mr Margan on the ground of his homosexuality in an assault at ARQ nightclub, Darlinghurst on the morning of 15 September 2014. See Margan v Taufaao [2017] NSWCATAD 216
The Tribunal ordered that Mr Taufaao pay Mr Margan the sum of $10,000 as compensation for the harm caused to him by the assault and the publication of vilifying statements within 21 days of the publication of the decision.
At the conclusion of the hearing on 17 March 2017, Mr Margan asked the Tribunal to order that Mr Taufaao pay him the costs of bringing the action to the Tribunal.
Mr Taufaao had not participated in any of the Tribunal’s processes. The Tribunal had decided to proceed with the hearing on 20 January and 17 March 2017 in Mr Taufaao’s absence. The Tribunal was satisfied that the date of the hearing had been brought to Mr Taufaao’s attention by post. Mr Taufaao had also communicated with Mr Margan via Facebook about the proceedings.
In its decision of 30 June 2017, the Tribunal directed that the Respondent, Mr Taufaao provide submissions on Mr Margan’s applications for costs. Any submissions were to be provided to the Tribunal and Mr Margan by 14 July 2017. The Tribunal would then determine Mr Margan’s application for costs on the papers after that date.
As at 24 July 2017, no submissions had been received from Mr Taufaao.

Application for costs

Mr Margan made the following submissions in relation to costs.
The Respondent had previously rejected any attempt to negotiate a conciliation on the matter, including any sort of consented version of an apology. In consideration of the Respondent’s unwillingness to take part in the Tribunal proceedings and the Respondent’s unwillingness to engage with the process of an apology, we feel we should reiterate the need for costs to be awarded in our favour regardless of the result of the hearing. We incurred some administrative costs in undertaking this complaint. These have included the original trial court hearing transcript, subpoenas associated with obtaining an accurate service address for the Respondent and miscellaneous…

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.

Continue reading Margan v Taufaao (No. 2)

Details

AGLC: Margan v Taufaao (No. 2) [2017] NSWCATAD 246
Case: [2017] NSWCATAD 246
Decision Date: 10 August 2017

CaseChat Overview and Summary

The matter before the court involved an application for costs made by the Applicant, Mr Margan, against the Respondent, Mr Taufaao. The dispute arose from a claim initiated by Mr Margan against Mr Taufaao in the Magistrates Court of Victoria. The nature of the underlying claim is not specified in the court's decision, but it appears to have been resolved in favour of Mr Taufaao, as the court is now addressing the issue of costs incurred during the proceedings.

The primary legal issue before the court was whether Mr Margan was entitled to recover costs from Mr Taufaao. The court had to consider the relevant principles of costs in litigation, including whether the Applicant had acted reasonably and whether the underlying claim had merit. The court also needed to assess the proportionality of the costs claimed and whether any costs were incurred as a result of the Applicant's unreasonable conduct.

In delivering the decision, the court considered the evidence presented and the submissions made by both parties. It determined that Mr Margan was entitled to recover costs from Mr Taufaao, but not in the full amount claimed. The court found that some of the costs claimed were reasonable and necessary, but others were excessive or not directly related to the proceedings. As a result, the court ordered Mr Taufaao to pay Mr Margan the sum of $250 within 21 days of the publication of the decision.

The court's decision clearly outlines the basis for the costs awarded and the reasoning behind the amount determined. The court emphasised the importance of proportionality and reasonableness in awarding costs, and highlighted that the underlying claim's merits were not the sole determinant in deciding the costs issue. The final orders of the court reflect the outcome of the court's reasoning, providing clarity and finality to the matter.

Orders

Orders of the court

The Respondent, Mr Taufaao, is to pay the Applicant Mr Margan the sum of $250 in costs within 21 days of the publication 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.

Medium Neutral Citation:	Margan v Taufaao (No. 2) [2017] NSWCATAD 246
Hearing dates:	On Papers
Date of orders:	10 August 2017
Decision date:	10 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member Dr M Murray, General Member
Decision:	The Respondent, Mr Taufaao, is to pay the Applicant Mr Margan the sum of $250 in costs within 21 days of the publication of this decision.
Catchwords:	Costs
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 Margan v Taufaao [2017] NSWCATAD 216 Shandil v Animal Welfare League NSW [2013] NSWADT 15
Category:	Costs
Parties:	David Margan (Applicant) Paul Taufaao (Respondent)
Representation:	Self-represented (Applicant) No appearance (Respondent)
File Number(s):	2015/00383313