Kumar v Point of Care Diagnostics Pty Ltd (No 2) [2021] NSWCATAD 356

Kumar v Point of Care Diagnostics Pty Ltd (No 2) [2021] NSWCATAD 356

The applicant withdrew the proceedings on the eve of the hearing due to a diagnosed and severe mental health condition, supported by medical evidence and hospital admission. While a late withdrawal may in some circumstances warrant a costs order, on the facts the applicant’s conduct was reasonable and beyond his control. No special circumstances exist justifying departure from the default rule that each party bear their own costs.

Parties
Applicant: Anup Kumar; First Respondent: Point of Care Diagnostics Pty Ltd; Second Respondent: Rupert Haines; Third Respondent: Alexander Cross
Jurisdiction
Australia
Judgment Date
26 November 2021
Procedural Posture
Costs Application (administrative/discrimination) / Post Withdrawal, Costs Application Determined on the Papers
Outcome
Application for costs dismissed
Legal Topics
Costs, Special Circumstances, Without Prejudice Privilege, Withdrawal of Proceedings, Procedural Fairness
Administrative Law Anti Discrimination Law Tribunal Procedure Costs Special Circumstances Without Prejudice Privilege Withdrawal of Proceedings Procedural Fairness

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Parties

Anup Kumar

Applicant

Point of Care Diagnostics Pty Ltd

First Respondent

Rupert Haines

Second Respondent

Alexander Cross

Third Respondent

Procedural Posture

Costs Application (administrative/discrimination) / Post Withdrawal, Costs Application Determined on the Papers

Legal Issues

  1. 1 Whether special circumstances exist warranting an award of costs to respondents under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) following applicant’s late withdrawal
  2. 2 Relevance of applicant’s mental health to assessment of special circumstances for costs
  3. 3 Whether without prejudice negotiations at mediation may be relied upon in costs application

Ratio Decidendi

The applicant withdrew the proceedings on the eve of the hearing due to a diagnosed and severe mental health condition, supported by medical evidence and hospital admission. While a late withdrawal may in some circumstances warrant a costs order, on the facts the applicant’s conduct was reasonable and beyond his control. No special circumstances exist justifying departure from the default rule that each party bear their own costs.

Court Disposition

Application for costs dismissed

Orders

  • A hearing of the respondents' costs application is dispensed with.
  • The respondents' costs application is dismissed.