Burns v Passas [2018] NSWCATAD 247

Burns v Passas [2018] NSWCATAD 247

No special circumstances justified a costs order. Mr Burns was not shown to have known of Mr Comensoli's complaint before the hearing date, had no legal obligation to co-ordinate with another complainant, and withdrew after the potential overlap became known. The respondent knew of Mr Comensoli's complaints before the listed hearing and could have raised the issue earlier. The Comensoli complaint was not identical, and withdrawal was not shown to have significantly increased the respondent's burden. The historical material was not so onerous to answer as to displace the usual rule. Accordingly, the Tribunal applied s 60(1) and ordered each party to pay the party's own costs.

Jurisdiction
Australia
Judgment Date
15 October 2018
Procedural Posture
Costs Application in the Administrative and Equal Opportunity Division / Determined on the Papers After Dismissal of the Substantive Proceedings Before a Hearing on the Merits
Outcome
Costs application dismissed; each party to pay the party's own costs.
Legal Topics
['special Circumstances for Costs' 'ncat Costs Jurisdiction' 'determination on the Papers' 'withdrawal of Proceedings' 'duplication of Proceedings']
['administrative Law' 'equal Opportunity' 'costs'] ['special Circumstances for Costs' 'ncat Costs Jurisdiction' 'determination on the Papers' 'withdrawal of Proceedings' 'duplication of Proceedings']

Case Brief

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Procedural Posture

Costs Application in the Administrative and Equal Opportunity Division / Determined on the Papers After Dismissal of the Substantive Proceedings Before a Hearing on the Merits

Legal Issues

  1. 1 ["Whether the respondent's costs application could be determined on the papers under s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW)." "Whether special circumstances warranted an award of costs departing from the usual rule that each party pay the party's own costs." "Whether the applicant's withdrawal of the substantive proceedings, alleged duplication with Mr Comensoli's complaint, or reliance on historical material constituted special circumstances." 'Whether delay in making the costs application or indemnity costs needed to be determined.']

Ratio Decidendi

No special circumstances justified a costs order. Mr Burns was not shown to have known of Mr Comensoli's complaint before the hearing date, had no legal obligation to co-ordinate with another complainant, and withdrew after the potential overlap became known. The respondent knew of Mr Comensoli's complaints before the listed hearing and could have raised the issue earlier. The Comensoli complaint was not identical, and withdrawal was not shown to have significantly increased the respondent's burden. The historical material was not so onerous to answer as to displace the usual rule. Accordingly, the Tribunal applied s 60(1) and ordered each party to pay the party's own costs.

Court Disposition

Costs application dismissed; each party to pay the party's own costs.

Orders

  • ["A hearing of the respondent's costs application is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013." "Each party is to pay the party's own costs of the proceedings pursuant to s 60(1) of the CAT Act."]