Rae v Commissioner of Police, New South Wales Police Force (No 3)

The matter before the court was an application by the Commissioner of Police, New South Wales Police Force for costs following the partial summary dismissal of a complaint made by Rae under the Anti-Discrimination Act 1997. The dispute centred on the conduct of the applicant, Rae, who was alleged to have misused her position by making discriminatory remarks and creating a hostile work environment. The proceedings were complex, involving multiple complaints and a substantial period of litigation before the applicant withdrew part of her complaint shortly before the scheduled hearing. The Commissioner sought costs on the basis that the applicant had prolonged the proceedings by withdrawing part of her complaint and had failed to comply with court directions and reject a settlement offer.

The court was required to determine whether the applicant's conduct warranted an order for costs under section 129 of the Anti-Discrimination Act 1997. This section allows for costs to be awarded if the court considers that proceedings have been commenced or conducted in a manner that is frivolous or vexatious, or without reasonable cause, or that any party has failed to comply with a direction given under the Act. The court had to weigh the applicant's reasons for withdrawing part of her complaint against the broader context of her conduct throughout the proceedings.

In considering the application, the court found that the applicant's conduct, including the withdrawal of part of her complaint and failure to comply with directions, had indeed prolonged the proceedings. The court emphasised that the applicant had not provided a satisfactory explanation for her actions, which had contributed to the unnecessary extension of the litigation. The court further noted that the applicant had rejected a reasonable offer of settlement, which had the potential to resolve the dispute without further court involvement. Based on these findings, the court concluded that the applicant's conduct warranted an award of costs to the Commissioner.

The court ordered that the applicant was to pay the costs of the Commissioner of and incidental to these proceedings, except for the costs of and incidental to the hearing conducted on 12 June 2009. The costs were to be paid as agreed or as assessed under the Legal Profession Act 2004, providing a clear framework for the calculation and recovery of costs. This decision underscores the importance of adhering to court directions and the potential consequences of prolonging litigation without reasonable justification.