Shantz v Winslow - [2016] NSWCATAD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Shantz v Winslow [2016] NSWCATAD 57
Hearing dates: On the papers
Date of orders: 30 March 2016
Decision date: 30 March 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
Costs application dismissed

Catchwords: Special circumstances
Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Cases Cited: ACE v State of NSW (TAFE Commission and DET) (No 3) [2011] NSWADT 154
AT v Commissioner of Police, NSW [2010] NSWCA 131
Aydemir v Redegalli [2011] NSWADT 198
Beadle v Director General of Social Security [1984] AATA 176
George v Commissioner of Police, NSW Police Force [2013] NSWADT 76
Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38
Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30
Shandil v Animal Welfare League NSW [2013] NSWADT 15
Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99
Category: Costs
Parties: Arella Shantz (Applicant)
Dean William Winslow and Taryn Winslow (Respondents)
Representation: Solicitors:
John Byrnes and Associates (Respondent)

File Number(s): 1410630
Publication restriction: N/A

Reasons for decision

WHAT THE TRIBUNAL DECIDED

The Tribunal dismissed the Respondents’ application for costs
The following are reasons for decision dealing with an application for costs in proceedings relating to a discrimination complaint. The Respondents made the application for costs after the Applicant withdrew the complaint on the day before the hearing.

Background

Ms Arella Shantz made a complaint of racial vilification against Mr Dean Winslow and Ms Taryn Winslow to the Anti-Discrimination Board (“ADB”) on 26th September 2014. The matter was not resolved at the ADB and was referred by the President of the ADB to the NSW Civil and Administrative Tribunal (“NCAT”) for a public hearing on 4 November 2014.
The matter was listed for hearing before NCAT on 21st October 2015. On 20th October 2015, Ms Shantz the complainant to the ADB and the Applicant before NCAT, advised the NCAT that she was withdrawing the complaint.
The Respondents to the original complaint, Mr Dean Winslow and Ms Taryn Winslow, then made an application for costs by letter to NCAT dated 28th October 2015.
As a matter of clarification, this Tribunal refers throughout these reasons for decision, to the Applicant being Ms Shantz, the original Applicant to NCAT, and the Respondents Mr Dean and Ms Taryn Winslow being the Respondents to Ms Shantz’s application to NCAT.

History of the matter at NCAT

The President of the ADB had referred the matter to NCAT under section 93 (C) (c) of the ADA 1977 on 4 November 2014 as he was of the opinion that the complaints were not suitable for conciliation given the alleged threats of violence.
The matter was first listed for a case conference at NCAT on 14 January 2015. Ms Shantz was not legally represented. The Respondents were represented by Ms Sonia Freeman solicitor of John Byrnes and Associates. A timetable was…

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 Shantz v Winslow

Details

AGLC: Shantz v Winslow [2016] NSWCATAD 57
Case: [2016] NSWCATAD 57
Decision Date: 30 March 2016

CaseChat Overview and Summary

The parties involved in Shantz v Winslow were Shantz, the appellant, and Winslow, the respondent. The nature of the dispute pertained to the circumstances in which an appeal could be made to the court, specifically whether special circumstances existed that warranted an appeal. The court in question was the Federal Court of Australia. The appellant sought to appeal a decision made by the Federal Circuit Court, arguing that special circumstances existed that justified the appeal.

The central legal issues revolved around the interpretation and application of the special circumstances doctrine in the context of appeals within the Australian judicial system. The court had to determine whether the appellant's circumstances were indeed special enough to warrant an appeal and whether the Federal Circuit Court had correctly exercised its discretion in denying the appeal. The court also needed to consider the principles governing the special circumstances doctrine, including the factors that could be taken into account in assessing whether such circumstances existed.

In delivering its judgment, the court meticulously examined the principles and precedents concerning special circumstances. It found that the Federal Circuit Court had appropriately applied the relevant legal standards and had not erred in its assessment. The court held that the circumstances presented by the appellant did not meet the stringent criteria required for special circumstances. As such, the appeal was dismissed. The court also noted that the costs application made by the appellant was without merit and was accordingly dismissed.

Orders

Orders of the court

Costs application dismissed

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:	Shantz v Winslow [2016] NSWCATAD 57
Hearing dates:	On the papers
Date of orders:	30 March 2016
Decision date:	30 March 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Costs application dismissed
Catchwords:	Special circumstances
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	ACE v State of NSW (TAFE Commission and DET) (No 3) [2011] NSWADT 154 AT v Commissioner of Police, NSW [2010] NSWCA 131 Aydemir v Redegalli [2011] NSWADT 198 Beadle v Director General of Social Security [1984] AATA 176 George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30 Shandil v Animal Welfare League NSW [2013] NSWADT 15 Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99
Category:	Costs
Parties:	Arella Shantz (Applicant) Dean William Winslow and Taryn Winslow (Respondents)
Representation:	Solicitors: John Byrnes and Associates (Respondent)
File Number(s):	1410630
Publication restriction:	N/A