Fainstein v University of New South Wales and Professor Piggott [2004] NSWADT 26

Fainstein v University of New South Wales and Professor Piggott [2004] NSWADT 26

Although s 111(2) of the Anti-Discrimination Act 1977 confers a broad discretion to award costs after dismissal of a complaint as lacking in substance, it was not just and reasonable to order costs here. The Board's prior declination and the applicant's previous unsuccessful proceedings were not determinative and should not be given weight that would deter use of rights under the Act. The adverse credit findings and inconsistencies in the applicant's evidence contributed to dismissal of the complaint, but they were not so serious as to warrant penalising the unrepresented applicant with a costs order. The applicant had presented his case efficiently and had established some elements of a...

Jurisdiction
Australia
Judgment Date
10 February 2004
Procedural Posture
Costs Application / On the Papers Following Dismissal of the Complaint Under S 111(1) of the Anti Discrimination Act 1977
Outcome
Application for costs not granted.
Legal Topics
['victimisation' 'dismissal of Complaint as Lacking in Substance' 'costs Discretion After Dismissal Under S 111' 'unrepresented Litigant']
['anti Discrimination' 'equal Opportunity' 'costs'] ['victimisation' 'dismissal of Complaint as Lacking in Substance' 'costs Discretion After Dismissal Under S 111' 'unrepresented Litigant']

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Procedural Posture

Costs Application / On the Papers Following Dismissal of the Complaint Under S 111(1) of the Anti Discrimination Act 1977

Legal Issues

  1. 1 ["Whether the Tribunal should order the applicant to pay the respondents' costs of the inquiry after the complaint was dismissed under s 111(1) of the Anti-Discrimination Act 1977 as lacking in substance." "Whether the matters relied on by the respondents, including the Board's prior declination of the complaint, previous unsuccessful proceedings, and adverse findings on credit, justified a costs order under s 111(2) of the Anti-Discrimination Act 1977."]

Ratio Decidendi

Although s 111(2) of the Anti-Discrimination Act 1977 confers a broad discretion to award costs after dismissal of a complaint as lacking in substance, it was not just and reasonable to order costs here. The Board's prior declination and the applicant's previous unsuccessful proceedings were not determinative and should not be given weight that would deter use of rights under the Act. The adverse credit findings and inconsistencies in the applicant's evidence contributed to dismissal of the complaint, but they were not so serious as to warrant penalising the unrepresented applicant with a costs order. The applicant had presented his case efficiently and had established some elements of a...

Court Disposition

Application for costs not granted.

Orders

  • ['Application for costs not granted']