Murtagh & Anor v Taylor (No 2) (EOD) - [2005] NSWADTAP 39

Appeal Panel - Internal

CITATION: Murtagh & Anor v Taylor (No 2) (EOD) [2005] NSWADTAP 39

PARTIES: FIRST APPELLANT
Tina Murtagh
SECOND APPELLANT
Darren Fensom
RESPONDENT
Teresa Taylor

FILE NUMBER: 049052

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 06/20/2005

DATE OF DECISION:
08/04/2005

DECISION UNDER APPEAL:
Murtagh & Anor v Taylor [2004] NSWADT 271

BEFORE: Chesterman M - ADCJ (Deputy President); Britton A - Judicial Member; Bolt M - Non Judicial Member

CATCHWORDS: costs

MATTER FOR DECISION: Costs

FILE NUMBER UNDER APPEAL: 041058

DATE OF DECISION UNDER APPEAL: 11/30/2004

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED: Cargill Australia Ltd v Higginson (No 2) (EOD) [2002] NSWADTAP 33
Citadin Pty Ltd (No 2) v Eddie Azzi (Australia) Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31
Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
French v Sydney Turf Club Ltd (No 2) (EOD) [2003] NSWADTAP 54
Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36
Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18
Sleiman v Kmart Australia Ltd [2003] NSWADT 21
Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25

REPRESENTATION:
FIRST APPELLANT
No appearance
SECOND APPELLANT
D Hillard, solicitor
RESPONDENT
G Casey, solicitor

ORDERS: Application by Respondent for her costs of the appeal dismissed.

Introduction

1 In this matter, we heard two appeals, dismissing both of them in a judgment delivered on 2 May 2005 (Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18). In relation to one of them, which we called ‘the principal appeal’, the successful Respondent, Ms Teresa Taylor, has applied for a costs order.

2 In conformity with directions that we gave in our judgment, we are determining this question of costs ‘on the papers’, pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’). We have received written submissions from Mr G Casey, solicitor, on behalf of Ms Taylor, and from Mr D Hillard, solicitor, on behalf of Mr Darren Fensom, who is one of the Appellants. We have not received any submission on behalf of the other Appellant, Ms Tina Murtagh.

3 In our opinion, this application must be dismissed. Our reasons are as follows.

Statutory provisions regarding costs

4 In previous decisions of the Tribunal, different views have been expressed regarding the statutory source of an Appeal Panel’s power to award costs in an appeal brought against a decision of the Equal Opportunity Division in the exercise of the Tribunal’s jurisdiction under the Anti-Discrimination Act 1977 (‘the AD Act’).

5 According to a recent case, Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22, the power to award costs is that contained in the AD Act. At the time of this case, s 114 was the relevant provision. It is now s 110 of this Act, which does not include an exception that existed in s 114. Section 110 states as follows:

(1) Each party to…

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 Murtagh & Anor v Taylor (No 2) (EOD)

Details

AGLC: Murtagh and Anor v Taylor (No 2) (EOD) [2005] NSWADTAP 39
Case: [2005] NSWADTAP 39
Decision Date: 08/04/2005

CaseChat Overview and Summary

The appeal before the Court involved the respondents, Murtagh and another, and the appellant, Taylor. The case pertained to the assessment of costs incurred during the appeal process. The matter was heard in the Federal Court of Australia. The primary focus of the appeal was the decision made by the trial judge concerning the costs associated with the appeal, specifically whether the appellant should bear the costs of the respondents' appeal.

The court needed to determine whether the trial judge had correctly exercised his discretion in awarding costs against the appellant. The legal issue hinged on the application of the relevant principles of costs in appeals, particularly focusing on whether the appeal had any reasonable prospects of success and if there were any special circumstances justifying the costs awarded. The court also examined whether the appellant's conduct during the proceedings warranted an order for costs against her.

In delivering the judgment, the Court held that the trial judge had not erred in his exercise of discretion. The appeal did not have reasonable prospects of success, and there were no special circumstances that would justify the appellant being relieved of the costs. The Court found that the appellant's conduct during the proceedings contributed to the costs being awarded against her. Consequently, the Court dismissed the appeal for her costs, affirming the trial judge's decision. The Court did not find any basis to overturn the order for costs, maintaining that it was appropriate given the circumstances of the case.

Orders

Orders of the court

Application by Respondent for her costs of the appeal dismissed.

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:	Murtagh & Anor v Taylor (No 2) (EOD) [2005] NSWADTAP 39
PARTIES:	FIRST APPELLANT Tina Murtagh SECOND APPELLANT Darren Fensom RESPONDENT Teresa Taylor
FILE NUMBER:	049052
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	06/20/2005
DATE OF DECISION:	08/04/2005
DECISION UNDER APPEAL:	Murtagh & Anor v Taylor [2004] NSWADT 271
BEFORE:	Chesterman M - ADCJ (Deputy President); Britton A - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	041058
DATE OF DECISION UNDER APPEAL:	11/30/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Cargill Australia Ltd v Higginson (No 2) (EOD) [2002] NSWADTAP 33 Citadin Pty Ltd (No 2) v Eddie Azzi (Australia) Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 French v Sydney Turf Club Ltd (No 2) (EOD) [2003] NSWADTAP 54 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18 Sleiman v Kmart Australia Ltd [2003] NSWADT 21 Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25
REPRESENTATION:	FIRST APPELLANT No appearance SECOND APPELLANT D Hillard, solicitor RESPONDENT G Casey, solicitor
ORDERS:	Application by Respondent for her costs of the appeal dismissed.