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

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kumar v Point of Care Diagnostics Pty Ltd (No 2) [2021] NSWCATAD 356 Hearing dates: On the papers Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) A hearing of the respondent's costs application is dispensed with. (2) The respondents' costs application is dismissed. Catchwords: COSTS – Whether special circumstances warranting an award of costs – Where applicant withdrew proceedings the afternoon before the hearing – Where withdrawal was due to applicant's mental health condition – Whether reasons for withdrawal relevant to assessment of special circumstances PRIVILEGE – Without prejudice privilege - Where respondents sought to rely upon offers at mediation to establish special circumstances – Whether evidence of offers at mediation privileged – Whether Tribunal should admit evidence in its discretion – Whether evidence relevant PRACTICE AND PROCEDURE – Objections to evidence – Whether procedurally fair to determine objections on the papers, where applicant has not had an opportunity to respond Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Aydemir v Redegalli [2011] NSWADT 198 Biovision 2020 Pty Ltd v CGU Insurance Ltd [2010] VSC 589 Blue Badge Insurance Australia Pty Ltd v Farnan (No 2) [2017] NSWSC 1688 Cutts v Head [1984] Ch 290 D Constructions Pty Ltd v Walsh [2020] NSWCATAP 91 Duffy Kennedy Pty Ltd v Galileo Miranda Nominee Pty Ltd (2020) 101 NSWLR 927 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Gaynor v Burns [2015] NSWCATAP 150 GHI v ABC t/as DEF [2018] NSWCATAD 8 Harrington v Lowe (1996) 190 CLR 311 Kadielski v Guca 1 Pty Ltd [2018] NSWCATAP 223 Kumar v Point of Care Diagnostics Pty Ltd [2020] NSWCATAD 312 Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232 Northern Territory v Sangare (2019) 265 CLR 164 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Rodny v Stricke [2020] NSWCATAP 20 The Owners - Strata Plan 20211 v Rosenthal [2019] NSWCATAP 49 Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 Category: Costs Parties: Anup Kumar (Applicant) Point of Care Diagnostics Pty Ltd (First Respondent) Rupert Haines (Second Respondent) Alexander Cross (Third Respondent) Representation: Solicitors: Connect Legal (Applicant) Kennedys (Australasia) Partnership (Respondents) File Number(s): 2020/329895 Publication restriction: None