Burns v Cunningham (No 2) [2012] NSWADT 53

Burns v Cunningham (No 2) [2012] NSWADT 53

The Tribunal had power to award costs, but was not satisfied under s 88(1A) of the Administrative Decisions Tribunal Act 1997 (NSW) that it would be fair to depart from the ordinary rule that each party bears its own costs. The Applicant's failure to comply with the first timetable was not shown to be without reasonable excuse or to have unnecessarily disadvantaged the Respondent; the proceedings were not vexatious because they were brought for Tribunal adjudication and were not hopeless; the Applicant did not unreasonably prolong the proceedings; the complaint, though unsuccessful, had a tenable basis in fact or law; the nature and complexity of the proceedings did not justify costs; and...

Jurisdiction
Australia
Judgment Date
26 March 2012
Procedural Posture
Application for Costs in Proceedings Concerning a Complaint of Homosexual Vilification Under the Anti Discrimination Act 1977 (nsw) / On the Papers After Dismissal of the Substantive Complaint
Outcome
The Respondent's application for costs was dismissed and no order as to costs was made on the costs application.
Legal Topics
['costs in Administrative Decisions Tribunal Proceedings' 'homosexual Vilification' 'unsuccessful Substantive Application' 'access to Tribunal in Anti Discrimination Act Matters']
['administrative Law' 'anti Discrimination Law' 'costs'] ['costs in Administrative Decisions Tribunal Proceedings' 'homosexual Vilification' 'unsuccessful Substantive Application' 'access to Tribunal in Anti Discrimination Act Matters']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Costs in Proceedings Concerning a Complaint of Homosexual Vilification Under the Anti Discrimination Act 1977 (nsw) / On the Papers After Dismissal of the Substantive Complaint

Legal Issues

  1. 1 ["Whether the Respondent's post-decision application for costs should be entertained despite Practice Note Number 22 discouraging costs applications after reasons for decision and requiring reasons and a precise statement of costs." 'Whether it was fair under s 88(1A) of the Administrative Decisions Tribunal Act 1997 (NSW) to depart from the ordinary rule that each party bears its own costs.' 'Whether the Applicant conducted the proceedings in a way that unnecessarily disadvantaged the Respondent, including by failing to comply with directions or by vexatiously conducting the proceedings.' 'Whether the Applicant unreasonably prolonged the proceedings.' "Whether the Applicant's complaint had no tenable basis in fact or law." "Whether the nature and complexity of the proceedings or other relevant matters, including the Respondent's age, political participation and the Applicant's history of proceedings, justified a costs order."]

Ratio Decidendi

The Tribunal had power to award costs, but was not satisfied under s 88(1A) of the Administrative Decisions Tribunal Act 1997 (NSW) that it would be fair to depart from the ordinary rule that each party bears its own costs. The Applicant's failure to comply with the first timetable was not shown to be without reasonable excuse or to have unnecessarily disadvantaged the Respondent; the proceedings were not vexatious because they were brought for Tribunal adjudication and were not hopeless; the Applicant did not unreasonably prolong the proceedings; the complaint, though unsuccessful, had a tenable basis in fact or law; the nature and complexity of the proceedings did not justify costs; and...

Court Disposition

The Respondent's application for costs was dismissed and no order as to costs was made on the costs application.

Orders

  • ["The Respondent's application for costs be dismissed." 'There be no order as to costs on this application.']