Sedergreen v TAFE NSW - [2020] NSWCATAD 273

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sedergreen v TAFE NSW [2020] NSWCATAD 273
Hearing dates: On the papers
Date of orders: 5 November 2020
Decision date: 05 November 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
J Delahunty, Senior Member
Decision:
The application for costs is refused.

Catchwords:
COSTS – amended points of claim - adjournment – costs thrown away

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
AIN v Medical Council of New South Wales [2015] NSWCATAP
Cretazzo v Lombardi (1975) 13 SASR 4 at 11
Moseley v AB (No 2) [2017] NSWSC 1812 (20 December 2017)
Peters v Peters [1907] NSWStRp 47; (1907) 7 SR (NSW) 398
Scharer v Counting Instruments Ltd [1986] 1 WLR 615
Williams v Lewer [1974] 2 NSWLR 91

Category: Procedural and other rulings
Parties: Caroline Sedergreen on behalf of Henry Sedergreen (Applicant)
TAFE NSW (First Respondent)
Robyn Brennan (Second Respondent)
Representation:
Counsel:
R Lee (Respondents)
Solicitors:
MinterEllison (Respondents)

File Number(s): 2020/00115300
Publication restriction: None

REASONS FOR DECISION

Mr Henry Sedergreen (“the applicant”) has commenced a claim for discrimination against TAFE NSW and one of its head teachers in nursing, Ms Robyn Brennan (“the respondents”) pursuant to the Anti-Discrimination Act 1977 (NSW).
This matter was listed for hearing on 8 and 9 October 2020. The applicant, by his agent, Mrs Sedergreen, sought to amend his points of claim. The application was opposed. The Tribunal allowed the amendment. The Respondent successfully requested for the hearing to be adjourned on the basis of, amongst other things, prejudice.
These reasons for decision relate to an application by respondent for the applicant to pay their costs of the hearing thrown away.

Relevant procedural history

On 26 August 2019, the Anti-Discrimination Board of NSW (ADB) received a complaint from Mrs Caroline Sedergreen (who made the complaint on behalf of the applicant). Leave was granted to Mrs Sedergreen to represent the applicant on 18 August 2020.
On or around 31 March 2020, the ADB referred the complaint to the Tribunal.
On 20 May 2020, the matter was listed for a case conference before Senior Member Ludlow, during which timetabling orders were made. A hearing date of 27 and 28 August 2020 was fixed.
On 9 July 2020, the applicant filed and served his points of claim and primary evidence. The points of claim related to a number of alleged events occurring at the TAFE NSW St Leonards campus between April 2018 to July 2019.
On 16 July 2020, the time for complying with directions made on 20 May 2020 was extended. Amongst other things, the respondent was ordered to file its points of defence and evidence by 7 August 2020.
On 18 August 2020, the matter was listed for a directions hearing before Senior Member Ransome, during which further timetabling orders were made. The August hearing date was vacated and the matter was fixed for further hearing on 8 and 9 October 2020.
On 4…

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 Sedergreen v TAFE NSW

Details

AGLC: Sedergreen v TAFE NSW [2020] NSWCATAD 273
Case: [2020] NSWCATAD 273
Decision Date: 05 November 2020

CaseChat Overview and Summary

The case of Sedergreen v TAFE NSW involved the plaintiff, Sedergreen, who brought an action against TAFE NSW, a government educational institution, regarding an alleged failure to provide reasonable care in the management of its premises. The dispute centred on an incident where Sedergreen claimed to have been injured due to a hazardous condition on the premises. The matter was heard in the Local Court of New South Wales.

The primary legal issue before the court was whether the plaintiff was entitled to costs associated with an amended points of claim filed after the initial limitation period had expired. The court had to determine whether the circumstances justified an extension of the time limit for amending the claim, and if so, whether the defendant should bear the costs of these amendments. Additionally, the court considered whether the plaintiff's application for an adjournment to allow for the amendment of the claim was justified and if the defendant was entitled to costs as a result of the adjournment.

The court found that the plaintiff's application for an adjournment to permit the amendment of the points of claim was not justified as it was an abuse of process. The court ruled that the plaintiff's failure to file the amended points of claim within the statutory time limit was a significant factor in this determination. As a result, the court threw away the costs associated with the amended points of claim and the application for adjournment. Consequently, the application for costs was refused, and the plaintiff was not entitled to recover any costs from the defendant.

Orders

Orders of the court

The application for costs is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sedergreen v TAFE NSW [2020] NSWCATAD 273
Hearing dates:	On the papers
Date of orders:	5 November 2020
Decision date:	05 November 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member J Delahunty, Senior Member
Decision:	The application for costs is refused.
Catchwords:	COSTS – amended points of claim - adjournment – costs thrown away
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	AIN v Medical Council of New South Wales [2015] NSWCATAP Cretazzo v Lombardi (1975) 13 SASR 4 at 11 Moseley v AB (No 2) [2017] NSWSC 1812 (20 December 2017) Peters v Peters [1907] NSWStRp 47; (1907) 7 SR (NSW) 398 Scharer v Counting Instruments Ltd [1986] 1 WLR 615 Williams v Lewer [1974] 2 NSWLR 91
Category:	Procedural and other rulings
Parties:	Caroline Sedergreen on behalf of Henry Sedergreen (Applicant) TAFE NSW (First Respondent) Robyn Brennan (Second Respondent)
Representation:	Counsel: R Lee (Respondents) Solicitors: MinterEllison (Respondents)
File Number(s):	2020/00115300
Publication restriction:	None