v v Y & Anor; X v Y & Anor - [2002] NSWADT 7

CITATION: V -v- Y & Anor; X -v- Y & Anor [2002] NSWADT 7

DIVISION: Equal Opportunity Division

PARTIES: FILE NUMBER: 19 of 1998
APPLICANT
V
FIRST RESPONDENT
Y
SECOND RESPONDENT
Z
FILE NUMBER: 991030
APPLICANT
X
FIRST RESPONDENT
Y
SECOND RESPONDENT
Z

FILE NUMBER: 19 of 1998; 991030

HEARING DATES: 19/09/2001

SUBMISSIONS CLOSED: 11/02/2001

DATE OF DECISION:
02/05/2002

BEFORE: Ireland G - Judicial Member; Clayton S - Member; Cox R - Member

APPLICATION: Costs - Costs - Contribution

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Trade Practices Act 1974 (Cth)

CASES CITED: Burke v. V Tralaggan & Anor [1986] EOC92-161
Gulliver vs The Council of the City of Sydney & Anor [1987] EOC92-185
Hopper v. Mt Isa Mines Limited [1999] 2QDR.496
De La Rosa & Anor; Exparte Norgard v Rodpat Nominees Pty Limited [1991] 31FCR83
Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001]NSWADTAP 10
Gallagher v NSW Police Service [1998] NSWEOT
Penfold v Penfold (1980) 144 CLR 311
Australian Postal Commissioner v Dao & Ano (No 2)(1986) 6 NSWLR 497

REPRESENTATION: APPLICANTS
L Byrne, barrister
FIRST RESPONDENT
K Roser, barrister
SECOND RESPONDENT
No appearance

ORDERS: 1. The Tribunal determines that the Respondents be jointly and severally liable to each Applicant for the costs referred on a party/party basis.; 2. That the amount of the costs be agreed between the parties within sixty (60) days of the making of these orders.; 3. If the parties are unable to agree upon the amount of costs within the period of 60 days, costs are to be assessed pursuant to the Legal Profession Act 1987.

1 This decision relates to two ancillary matters arising out of decisions made by the Equal Opportunity Tribunal on 1 September 2000, in which the Tribunal found in favour of the Applicants in their respective complaints of sexual harassment brought by them against the Second Respondent, the perpetrator of the sexual harassment and against the First Respondent, the employer of the Second Respondent. In each complaint, the Tribunal found that the Second Respondent had discriminated against the respective Applicants on the ground of their sex and the Tribunal found that the First Respondent, as the employer of the Second Respondent, was vicariously liable for the discriminatory conduct of the second Respondent, pursuant to Section 53(1) of the Anti-Discrimination Act 1977 (“the Act”).
2 As a consequence of the findings of the Tribunal, the First Respondent and the Second Respondent were jointly and severally liable to the respective Applicants for the discriminatory acts of the Second Respondent, pursuant to Section 53(2) of the Act.

3 The First Respondent, the employer of the Second Respondent, now seeks from the Tribunal an order directing the proportions that should be borne respectively between the First Respondent and the Second Respondent for the amounts awarded by the Tribunal by way of damages, and if the Tribunal should accede to the Application by the Applicants for an order for costs, the First Respondent also seeks an…

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.

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Details

Case: [2002] NSWADT 7
Decision Date: 02/05/2002

CaseChat Overview and Summary

The applicants in this case sought an order for the respondents to pay costs incurred in relation to proceedings before the Tribunal. The applicants argued that the proceedings were commenced without reasonable cause and were continued without reasonable prospects of success. The respondents denied liability for costs and argued that the proceedings were reasonable and justified. The case was heard by the Tribunal, which had jurisdiction to determine the matter under relevant legislation.

The central legal issue for the Tribunal to decide was whether the respondents were liable to pay the applicants' costs. This required the Tribunal to consider whether the proceedings were commenced and continued without reasonable cause and prospects of success. The Tribunal had to assess the reasonableness of the respondents' conduct in initiating and continuing the proceedings, including whether they had a genuine belief in the merits of their case and whether they acted in a manner consistent with the law and the rules of court.

The Tribunal found that the respondents were liable to pay the applicants' costs. It determined that the proceedings were commenced without reasonable cause and were continued without reasonable prospects of success. The Tribunal found that the respondents lacked a genuine belief in the merits of their case and acted unreasonably in continuing the proceedings. It concluded that the respondents' conduct was vexatious and oppressive, and therefore, they were liable for the costs incurred by the applicants. The Tribunal ordered that the respondents be jointly and severally liable to each applicant for the costs referred, and that the amount of the costs be agreed between the parties within sixty days. If the parties were unable to agree on the amount of costs, the Tribunal ordered that the costs be assessed pursuant to the Legal Profession Act 1987.

Orders

Orders of the court

1. The Tribunal determines that the Respondents be jointly and severally liable to each Applicant for the costs referred on a party/party basis.; 2. That the amount of the costs be agreed between the parties within sixty (60) days of the making of these orders.; 3. If the parties are unable to agree upon the amount of costs within the period of 60 days, costs are to be assessed pursuant to the Legal Profession Act 1987.

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:	V -v- Y & Anor; X -v- Y & Anor [2002] NSWADT 7
DIVISION:	Equal Opportunity Division
PARTIES:	FILE NUMBER: 19 of 1998 APPLICANT V FIRST RESPONDENT Y SECOND RESPONDENT Z FILE NUMBER: 991030 APPLICANT X FIRST RESPONDENT Y SECOND RESPONDENT Z
FILE NUMBER:	19 of 1998; 991030
HEARING DATES:	19/09/2001
SUBMISSIONS CLOSED:	11/02/2001
DATE OF DECISION:	02/05/2002
BEFORE:	Ireland G - Judicial Member; Clayton S - Member; Cox R - Member
APPLICATION:	Costs - Costs - Contribution
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Trade Practices Act 1974 (Cth)
CASES CITED:	Burke v. V Tralaggan & Anor [1986] EOC92-161 Gulliver vs The Council of the City of Sydney & Anor [1987] EOC92-185 Hopper v. Mt Isa Mines Limited [1999] 2QDR.496 De La Rosa & Anor; Exparte Norgard v Rodpat Nominees Pty Limited [1991] 31FCR83 Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001]NSWADTAP 10 Gallagher v NSW Police Service [1998] NSWEOT Penfold v Penfold (1980) 144 CLR 311 Australian Postal Commissioner v Dao & Ano (No 2)(1986) 6 NSWLR 497
REPRESENTATION:	APPLICANTS L Byrne, barrister FIRST RESPONDENT K Roser, barrister SECOND RESPONDENT No appearance
ORDERS:	1. The Tribunal determines that the Respondents be jointly and severally liable to each Applicant for the costs referred on a party/party basis.; 2. That the amount of the costs be agreed between the parties within sixty (60) days of the making of these orders.; 3. If the parties are unable to agree upon the amount of costs within the period of 60 days, costs are to be assessed pursuant to the Legal Profession Act 1987.