Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FSO v Secretary, Department of Education (No 2) (Costs) [2023] NSWCATAD 283 Hearing dates: 4 September 2023 Date of orders: 30 October 2023 Decision date: 30 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: HJ Dixon SC, Senior Member Decision: 1. The Applicant is to pay to the Respondent the Respondent's costs of the proceedings including the application for an award of costs dated 30 May 2023 as agreed or, if not agreed, as assessed pursuant to the relevant legal costs legislation as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: Costs – special circumstances established – claims unsupported by evidence – claims lacking merit – large volume of materials with no or marginal evidentiary value Legislation Cited: Anti-Discrimination Act 1997 (NSW), ss 49B, 92, 93C Civil and Administrative Tribunal Act 2013, ss 36(3), 60 Legal Profession Uniform Law Application Act 2014 (NSW), s 3A Cases Cited: Brodyn Pty Ltd v Owners Corporation – Strata Plan SNP 73019 (No 2) [2016] NSWCATAP 224 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Owners Corporation – Strata Plan 4521 v Zouk & Anor [2007] NSWCA 231 Shaw v Secretary, Department of Education [2023] NSWCATAD 102 Trajkovski v Harrison (No 2) [2023] NSWCATAP 228 Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 Texts Cited: None Category: Costs Parties: FSO (Applicant) Secretary, Department of Education (Respondent) Representation: Counsel: C Ronalds AO SC; D Thomas (Respondent) Solicitors: Applicant (In person) McCabes Lawyers (Respondent) File Number(s): 2022/00141126 Publication restriction: None reasons for decision in respect of costs 1. On 2 May 2023, the Tribunal handed down its decisions and reasons in respect of the application made under the Anti-Discrimination Act 1977 (NSW) ("the Anti‑Discrimination Act") by the Applicant, on behalf of her children. The application was dismissed. These reasons should be read in conjunction with the reasons for the dismissal of that application ([2023] NSWCATAD 102]). 2. Subsequently, and by an application dated 30 May 2023, the respondent to those proceedings, the Secretary, Department of Education ("the Department") sought an order that the Applicant pay the Department's costs of and incidental to the proceedings on the ordinary basis, and costs if not agreed to be assessed as set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). 3. The Department relies on s 60(3)(c), (e) and (f) of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") arguing that costs should be awarded due to the relative limited strength of the Applicant's case, which was lacking in substance, frivolous vexatious, misconceived and a failure on the part of the Applicant to comply with duties under s 36(3) of the CAT Act. 4. The Department then filed and served detailed written submissions in support of its application. 5. The Applicant filed a short response under cover of an email of 11 July 2023 (out of time) with "initial comments" as follows: "My initial comments are as follows: it is my understanding NCAT is a no cost jurisdiction the Respondent failed to discuss this complaint in any way before it was referred to ADNSW (the Anti-Discrimination Board of New South Wales) the Respondent had ample opportunity to enter into mediation when the matter was before ADNSW and NCAT, but chose not to the matter was referred to NCAT by ADNSW and therefore was a valid complaint. If it was not considered in substance, it would have been dismissed the requested terms for conciliation were consistent with the decision of the Tribunal in case 2020/00223756, which has now been referred back to the Tribunal for re-hearing." 1. These initial comments were then supplemented by the Applicant in a written submission dated 13 July 2023. 2. The parties also at about this time engaged in mediation with a view to resolving this matter (and others) and the determination of this costs application was put on hold until 1 August 2023. 3. In light of the written submissions by the parties I was concerned about what might be a misapprehension on the part of the Applicant that the Tribunal "is a no cost jurisdiction". It was also not clear from the Department's written submissions what the relevance was of other proceedings between these same parties set out in those submissions. 4. As a result, I listed the matter for a short hearing on 4 September 2023 to hear further from the parties. 5. At the hearing on 4 September 2023, Senior Counsel, who then appeared for the Department, said in answer to my query as to the relevance of the related proceedings that the material was not relevant and the Department accepted that reliance on that material in this costs application would lead the Tribunal into error. I have not had regard for any of the material and submissions concerning other proceedings for the purposes of this decision. 6. Counsel also informed the Tribunal that an appeal against the primary decision of 2 May 2023 had been heard. In response, I indicated that that was not relevant to my determination of the application for costs and I have proceeded on that basis. 7. At the hearing on 4 September 2023 I also made plain to the Applicant that the Tribunal did have the power to make and award of costs pursuant to s 60 of the CAT Act and I wanted her to be fully cognisant of that provision. The Applicant informed the Tribunal that she was now aware of the power to make orders as to costs. I invited her to make any further submissions orally in relation to that issue, if she chose. 8. The Applicant submitted that she relied on her 13 July 2023 submission. 9. The Applicant then also stressed the following in oral submissions. She had no legal background and was surprised that the Tribunal could order costs against a party, particularly one seeking to ensure compliance by the Department of its policies. The mediation I referred to above failed because the Department sought unreasonable terms in a deed of settlement recording what, she said, had been agreed. The costs application was being pursued with a view to pressurising her to settle her claims against the Department. She had received some limited legal advice to the effect that a costs order in the Tribunal was unusual and if a matter was referred to the Tribunal by the Anti-Discrimination Board costs were unlikely to be awarded. 10. The Applicant emphasised that it was unfair that she was now told that she could be liable for costs. She also emphasised that if the matter was referred by the Anti-Discrimination Board it must be regarded as a valid complaint. 11. The Applicant then submitted that she had not been given adequate support by the Tribunal in representing her case which, as a self-represented person, should have been afforded to her. This submission was not supported by any detail. 12. The Applicant also submitted that the public should not be discouraged from raising matters of concern by reason of a fear that costs orders may be made against that person. 13. In respect of the Applicant's complaint brought before the Tribunal (which of course had been heard and determined), the Applicant submitted that the real issue was how adjustments for the children's learning were allocated. The Applicant also raised, again, that the absence of the support person on 6 August 2021 was without consultation with her and, as I understood her submission, there were triggers likely to have an impact on the students by reason of the support person's absence for part of that day to attend the regional athletics carnival. Those were matters dealt with in the Tribunal's reasons of 2 May 2023. 14. On the morning of the hearing of 4 September 2023 the Department gave notice to the Applicant and the Tribunal that it intended to rely on certain aspects of the transcript of the substantive hearing, which was provided electronically, and also that it intended to rely on certain cases to support the application for costs, copies of which were provided. 15. As the Applicant had not had the opportunity to review that material, and it was not clear to her precisely what was to be drawn from it, I directed the Department to file and serve a short submission identifying the passages in the transcript to be relied upon and a summary of the reasoning in the cases it wished to put forward so as to allow the Applicant an opportunity to reply by 4:00 pm on 14 September 2023. Directions were made to that effect. 16. On 6 September 2023 the Applicant forwarded to the Tribunal by email a copy of a medical certificate dated 4 September 2023 stating that the Applicant is unwell with a medical condition and "will be unable to work from 04/09/2023 to 17/09/2023 inclusive". In the email to the Registry of the Tribunal, the Applicant stated that she will be unable to address "any material before NCAT during this period" and asked "please adjust orders accordingly". 17. On 7 September 2023 the Department filed and served a short supplementary submission in accordance with the directions made on 4 September 2023. 18. The Applicant did not file any response by 14 September 2023 as directed, no doubt as a result of the medical issue referred to above. 19. The Tribunal then, differently constituted issued new directions for the filing of reply submissions by the Applicant and a response by the Department. 20. The Applicant then served and there was filed in the Tribunal a 15 page submission. The submission commenced by referring to the notification by the Department as to the intended reliance on the transcript in the substantive hearing of her complaints and the reported cases which the Department intended to rely upon. This was followed by the orders or directions for the further filing of submissions by the Applicant and the submissions by the Department in accordance with the directions of 4 September 2023 requiring the Department to identify specifically the portions of the transcript and reasoning in the cases it was relying on. 21. The Applicant's submission then continued as follows: "Representing yourself Most people choose to represent themselves at NCAT. NCAT encourages you to run your own case without needing a lawyer or other representative. This provides a low cost, accessible and efficient means of resolving your dispute. Representing yourself gives you direct control on how your case is presented. With the right preparation and organisation, you can be your own best advocate. C Response 1. It needs to be noted that the Department had many opportunities to seek a solution to this case. a. As outlined in page 78 of the Transcript, the Respondent failed to consult with the Applicant about the complaint, resulting in the complaint being referred to ADNSW b. The Respondent did not enter into mediation when the matter was before ADNSW c. The Respondent did not enter into mediation when the matter was referred to NCAT d. The Respondent did enter into Mediation in July 2023 and agreement was reached. This agreement was never finalised as the Department did not honour the terms of the agreement. The costs incurred could have been avoided had the Department been open to resolving the matter. 2. Response to Law As a self represented party the Respondent is unable to comment on the submission regarding relevant law. 3. Response to Transcript It is clear from the Transcript that the Applicant needed significant assistance from the Tribunal to understand proceedings the Applicant was more than happy to exclude documents from evidence once it was known that documents dated after the day of the complaint were not relevant. It was not a deliberate attempt to provide irrelevant documentation, as implied by this application the relevance of each document was clearly outlined to the Tribunal the Tribunal Member harassed the Applicant into making incorrect statements about the detriment caused, and incorrectly used these comments as the basis for dismissing the case As outlined above, in the other [name removed] matter, detriment can be defined as the failure to implement a recommendation, agreement or policy, which is what happened in this case, as made clear by the Applicant comments and written submissions. The Tribunal member did not consider these comments and submission in making the decision. It is clear that the Tribunal member did not support the Applicant to understanding the legal proceedings and did not provide the Applicant with a fair hearing, which led to the Applicant being unable to attend the second hearing, and the decisions being subject to appeal." 1. Those submissions were then followed by 12 pages of extracts from the transcript. 2. The Department responded to these submissions as follows: "5. The course of the complaint through Anti-Discrimination NSW, including its conciliation, is irrelevant to the Tribunal's determination on the question of the costs of these proceedings under section 60(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 6. Similarly, the fact that the Applicant was self-represented in the proceeding is a neutral factor, which is not pertinent to an award of costs. 7. Similarly, the fact that the matter could not be resolved by way of conciliation or settlement negotiations has no bearing on the question of whether the Respondent should be awarded its costs of the proceedings. The mediation post-dated the decision in this matter and, in any event, the Respondent denies the Applicant's assertion that it reneged from any agreement reached at the mediation. 8. The Respondent denies that Senior Member Dixon "harassed" the Applicant in any way or that there was any denial of procedural fairness in the conduct of the hearing of the proceedings. In any event, these are matters that have been raised on the appeal of the proceedings and are not questions for determination on the costs application. 9. That the Applicant did not intend to lead irrelevant evidence is neither here nor there. The relevant fact that remains is that the Applicant sought to rely on voluminous, irrelevant materials, which is a factor favouring the exercise of the Tribunal's discretion to award costs: Trajkovski v Harrison (No. 2) [2023] NSWCATAP 228 at [13]-[14]. 10. Finally, it is disputed that the Tribunal failed to have regard to the "other [name removed] matter" (understood to be a reference to FSO (obo FSN) v Secretary, Department of Education [2023] NSWCATAD 15) and, in any event, this decision was set aside on appeal and was otherwise not binding on the Tribunal, being a first instance decision. Transcript Comments Respondent 11. None of the transcript extracts go to any issue relevant to the determination of this costs application and their inclusion amount to a misguided and impermissible attempt to relitigate issues in the proceedings below which were ultimately determined in the Respondent's favour. 12. The Respondent maintains its application that special circumstances exist which warrant the ward of an order for costs pursuant to section 60(2) of the NCAT Act." Relevant Legislation 1. Section 60 of the CAT Act regulates costs of proceedings in the Tribunal. Section 60 provides: 60 Costs (1) Each party to the proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following – (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. Relevant Principles 1. The usual rule is that a party is to pay his, her or its own costs of proceedings but, as the legislation makes clear, the Tribunal may make an order for costs if satisfied that there are "special circumstances": s 60(2). 2. Special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] referring to Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]. 3. The onus is on the party seeking an order for costs to satisfy the Tribunal in the exercise of its discretion under s 60(2) that there are special circumstances warranting an award of costs in its favour: see McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38]. 4. The exercise of that discretion requires the Tribunal to weigh whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs. 5. The discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: see eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]. 6. The decision to award costs pursuant to s 60(2) involves, in effect, two discretionary decisions. The first is to the Tribunal's satisfaction that there are special circumstances warranting an award of costs. The satisfaction involves a degree of subjectivity and thus, in a broad sense, is a discretionary decision (see, for example, Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [20] per Gleeson CJ, Gaudron and Hayne JJ in respect of similar legislative provisions). 7. As s 60(2) makes clear, if the requisite satisfaction is reached, the Tribunal 'may' make the order. This necessitates the making of a further discretionary decision (which I term the overall discretion) as to whether in all the circumstances, an award for costs should be made. Satisfaction as to special circumstances does not mandate that an order for costs be made (see, for example, Brodyn Pty Ltd v Owners Corporation - Strata Plan SNP 73019 (No 2) [2016] NSWCATAP 224 at [32]). 8. If the Tribunal has regard for the matters set out in s 60(3) the matters must be given due weight. 9. In respect of s 60(3)(c) (not tenable in fact or law) it must be established that the claim is so obviously untenable and it cannot possibly succeed: (see, for example, James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 at [24]). 10. In respect of s 60(3)(e) (whether proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance), the appeal panel of the Tribunal has adopted the statement of Ipp JA in Owners Corporation - Strata Plan 4521 v Zouk & Anor [2007] NSWCA 231 at [45] that "lacking in substance" means not "reasonably arguable". It is a meaning, held his Honour, not dissimilar to "frivolous, vexatious, misconceived" (see: Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 at [52] adopting this reasoning to s 60 of the CAT Act ("Zucker")). 11. Special circumstances may be established because a claim is lacking in substance even if such a finding was not expressly made in determining the substantive application provided such a finding is not inconsistent with the reasons given for dismissing the application: see Zucker at [52]. Special Circumstances 1. As set out in detail in the Tribunal's principal reasons, the Applicant's case before the Tribunal fell into four separate claims, each of which was rejected. 2. In respect of the opposition to this cost application, I deal next with each of FSO's "initial comments" set out at [5] above as follows: 1. As has been made clear in the Department's submissions served on the Applicant, and as was made clear at the hearing on 4 September 2023 the Applicant's understanding of s 60 of the CAT Act is not borne out. Section 60(2) expressly provides for an award of costs to be made in relation to proceedings if the Tribunal is satisfied that there are special circumstances warranting an award of costs and it exercises its discretion to make such an award having come to that satisfaction. 2. The Applicant does not point to evidence in support of the assertion that the Department failed to discuss the complaint before it was referred to the Anti-Discrimination Board. Further, this assertion is contrary to the evidence before the Tribunal. In addition, it is not a relevant consideration in determining the question of costs when there is no probative evidence before the Tribunal at the hearing to support the claims being pursued. 3. The comment in relation to the "choice" by the Department not to enter into mediation when the matter was before the Anti-Discrimination Board and the Tribunal is not correct. The Summary from the President of the Anti-Discrimination Board at the conclusion of the matter before the Board on 16 May 2022 was as follows: "(a) On 6 December 2021, the Applicant lodged complaints of disability discrimination in education on behalf of [the three students] against the Respondent (Complaints). (b) In its response to the Complaints, the Respondent submitted to ADNSW on 3 March 2022 that when the complainant contacted the school on 7 September 2021 to query why the SLSO had attended the sports carnival, they were notified of the reasons for the scheduling change and was offered a discussion about the matter. The Applicant did not take up the offer of having a discussion. (c) The Respondent participated in conciliation by ADNSW (d) ADNSW tried to conciliate the matter but was unsuccessful, and on 9 May 2022 the Applicant requested referral of their complaint to the Tribunal pursuant to s 93C(b) of the Anti-Discrimination Act 1977 (NSW) (ADA) which states that: If the President has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, the President is to refer the complaint to the Tribunal." 1. On the material before the Tribunal, and contrary to the submission by the Applicant, it appears that the matter was not referred to the Tribunal by the Anti-Discrimination Board on the basis that it was considered to have substance. The summary referred to above does not record that the matter was referred to the Tribunal pursuant to s 93C(c) of the Anti‑Discrimination Act which is based on the formation of an opinion that the nature of the complaint is such that it "should" be referred to the Tribunal. There is also, in my view, a distinction to be drawn between a "valid complaint" being made to the Board and a matter having been referred and then being pressed in the absence of evidence called, or in the absence of evidence challenging the alleged discriminator's evidence, as occurred in this case in respect of the evidence of the Principal of the School as to what occurred on the relevant day. 2. As pointed out in the Tribunal's principal reasons, the proceedings referred to (case 2020/00223756) raised different issues and evidence and was not relevant to the determination of the complaints raised in these proceedings. That case is also not relevant to the question of the discretions available to the Tribunal under s 60 of the CAT Act. 1. Accordingly, in my judgment, none of the "initial comments" are factors weighing against the satisfaction to be formed as to special circumstances or against the exercise of the discretion to award costs. 2. The submissions by the Applicant provided in her written submission of 13 July 2023 were to the following effect: 1. First, the Applicant denied that she had acted in a way that would be seen to prolong proceedings. She supported that submission by repeating that the case had been referred to the Tribunal by the Anti‑Discrimination Board because the Department refused to engage in consultation regarding the complaint. The case was referred to the Tribunal by the Anti-Discrimination Board because the Department, she argued, refused to engage in conciliation as outlined in s 93C(b) of the Act and the Department refused to enter into mediation with NCAT prior to the hearing. I am not satisfied that there is evidence concerning a refusal by the Department to engage in conciliation and the report referred to above suggests the opposite. 2. The Applicant then asserted that the only party who had prolonged proceedings is the Department by failing at all stages to enter into any discussions regarding the complaint. 3. Secondly, the Applicant denies the complaint was frivolous or vexatious and submitted that the Anti-Discrimination Board did not decline to investigate the complaint under s 92 of the Act and did not terminate the complaint under s 92 of the Act. The Applicant submitted that on 16 May 2022 the matter was referred to the Tribunal by the Anti-Discrimination Board under s 93C(c) of the Act, which as I point out above appears to be inconsistent with what occurred. 4. Thirdly, the Applicant denied that the matter had limited or no possibility of success and submitted that, in fact, she believed it has every possibility of success at appeal due to the consistency with findings of the Tribunal in a different case number 2020/00223756 and then quoted from certain sections of the decision of the Tribunal in that matter, which I understand was overturned on appeal and is due for re-hearing. 5. Fourthly, the Applicant denied that she failed to cooperate with the Tribunal and said that she had sought clarification on how to proceed with the case following "an issue with the conduct of the Tribunal member". The Applicant submitted that "we had no choice but to continue with the case as directed, however were unable to continue with proceedings before that particular member. This is now the cause for an appeal of this decision". The Applicant did not identify to me what this issue was other than, it appears from oral submissions which I refer to later, that it related to the question of an absence of support for a person who was not legally represented but she did not make this clear. 6. Fifthly, the Applicant denied that she failed to follow the Tribunal's orders. The Applicant submitted that the conduct of the Tribunal member extended the length of the hearing from 1 day to 2 and required additional unnecessary submissions to be made and that behaviour was the reason the Applicant was unable to attend the second hearing. 1. In respect of the first and second issues raised I do not accept the categorisation of what the Anti-Discrimination Board did as correct. I refer to [42] above. I also do not accept that the investigation of the complaint by the Anti-Discrimination Board, a statutory obligation, or the absence of the determination of the complaint by the Anti-Discrimination Board supports the argument that the complaint as then presented to the Tribunal was not frivolous or vexatious. The Anti-Discrimination Board was not required to examine detailed evidence or to make findings as to facts as presented, as is the case before the Tribunal. 2. I place no weight on the arguments that the Applicant prolonged proceedings other than her reliance on the large volume of documents which I refer to separately. I do not otherwise attach any weight to the Department's arguments under s 36(3) of the CAT Act. 3. I give no weight to the Applicant's belief as to the possibility of success of her appeal against the Tribunal's decision. I do not regard that as relevant to my determination. 4. I do not give any weight to the issue of the Applicant not complying with Tribunal's orders. 5. In the absence of submissions or particularisation before me as to the asserted failure to have given the Applicant the necessary support I attach no weight to that submission. If it be the case that this assertion has substance it is a matter for an appeal and not relevant to me. 6. As to the submissions of the Applicant quoted at [26] above: 1. I attach no weight to the Applicant's explanation as to her perceived benefit of being self-represented, either for or against the satisfaction as to special circumstances. I note, however, that there is an apparent inconsistency between asserting the benefits of self-representation and then complaining that not being legally represented counters the arguments raised by the Department. In the absence of probative evidence I am unable to attach any weight to the assertions concerning the alleged opportunities that the Department is claimed to have had to seek a solution to the case. Further, if what is asserted is a true representation of what occurred, it would not justify the pursuit of claims which were found to be without merit. 2. Although the Applicant had sought to outline to the Tribunal at the hearing what was said to be the relevance of the documents, the vast majority were regarded as not relevant. As I make clear later in these reasons I will attach some, but limited, weight to the large volume of irrelevant material presented by the Applicant in the hearing. 3. The Applicant did not identify, or support in any way, how I "harassed" the Applicant in the hearing and I attach no weight to that statement. The Applicant has not identified how in the hearing I "incorrectly used" incorrect statements made by her as a basis for dismissing the case. I attach no weight to any of these assertions (which, in any event, I do not accept). 4. I attach no weight to the submission that I did not consider what the Applicant defines as a detriment in circumstances where the question of detriment, and in particular the express denial of detriment by the Applicant, was dealt with in the Tribunal's reasons of 2 May 2023. 5. I do not accept that the Tribunal did not consider what was determined in "the other [name removed] matter", and I attach no weight to this claim. Further, if in fact there was a failure on the part of the Tribunal to properly consider what is raised by the Applicant it is a matter for an appeal. I also understand that the decision in that case has been overturned on appeal. 6. I attach no weight to the assertions concerning the absence of support or the absence of a fair hearing in circumstances where, even if relevant to this application, the Applicant has not provided any explanation or particularity before me in support of the assertions. I do not accept that there was an absence of support of the Applicant. I attach no weight to the Applicant's reference to the decision made by the Tribunal being subject to appeal. 7. None of the transcript extracts from the transcript of the substantive proceedings assist me in the discretions to be exercised pursuant to s 60 of the CAT Act. The extracts appear to only quote what the Applicant was submitting or saying to the Tribunal during that hearing and it is not made clear to what point, if any, the extracts are directed at. If they are now raised as seeking to counter the conclusions reached by the Tribunal, or to require reconsider of the dismissal of the application, it is not a permissible course for me to embark upon. 1. Having regard for the Tribunal's reasons published on 2 May 2023, the submissions by the Department and those provided by the Applicant, and the matters to which reference may be made under s 60(3), I am satisfied that the circumstances of this case are out of the ordinary. 2. First, the claims as pressed in the Tribunal relied on plans and measures in place to support the students which required assessment over a lengthy period or periods including school semesters. It was not identified how those measures were in fact undermined by the limited events on 6 August 2021. 3. Secondly, the claims were not supported by any probative evidence concerning what occurred on 6 August 2021. The claims of detriment were persisted with and remained part of the case the Department had to meet, notwithstanding the express concession made by the Applicant at the hearing that it was not claimed that there was any detriment to any of the students on the day, or at all, and notwithstanding the absence of evidence of any such detriment. I refer, in particular, to the following paragraphs from the principal reasons in respect of the absence of evidence, namely, paragraphs [34], [40], [45], [47], [87], [88], [91], [95], [96], [98], [106], [108], and [114]. 4. Thirdly, the second category of the Applicant's complaint, reliance on s 49B(3A) of the Anti‑Discrimination Act, had no relevance at all to the proceeding and the claim was not supported by any evidence or legal foundation for the conclusion pressed upon the Tribunal. 5. Fourthly, although it was asserted at the hearing that the students were denied a benefit of the attendance at the School for part of the day on 6 August 2021 by the SLSO who was to provide support, it was not demonstrated that the teaching and attention to the needs of the students by the Principal and teachers on the day did not satisfy this benefit. The Applicant simply did not know what occurred in the classrooms and School on the day and admitted as much. 6. Fifthly, the Applicant filed, served and sought to rely on some 105 documents, some 1000 pages, the vast majority of which were not identified as having actual relevance to the claims. It was largely stated that this material was "background" information. 7. Sixthly, whilst allowing for the fact that the Applicant was self-represented, it was abundantly clear from a review of the evidence from the Department what the true position was on 6 August 2021. The materials pressed by the Applicant and put forward at the hearing ignored what in fact happened on the day. Put simply, a complex structure was erected, four categories of complaints, by reason of the absence of a junior support person at a School for approximately 5 hours 20 minutes on a particular sporting day and where the Principal and teachers took over the duties of that support person and cared for the children without any adverse consequences demonstrated to the Tribunal. It was not necessary to be legally trained to understand the detailed written evidence of the Principal filed and served in advance of the hearing and which was not challenged. 8. Seventhly, this is not simply a case of the application having failed but it was one that was fundamentally flawed from the beginning. The Applicant appeared to rely upon a formulation of complaints derived from different proceedings and simply repeated them in this case without any proper analysis of their application or relevance to the facts. This is illustrated by reliance on plans for the students to reach their learning goals by the end of the fourth semester, many months later and much could occur in the interim to affect those goals either positively or negatively. There was nothing raised as to whether the goals were, or were not, met. 9. Eighthly, the Tribunal considered that all the claims made and pressed lacked merit. 10. In respect of s 60(3)(c), the relative strengths of the claims made by each party strongly favour the outcome of a costs order. The strength of the Department's case is reflected in the decision arrived at by the Tribunal in contrast to claims that have lacked merit. In my view, the Applicant's claims had no tenable basis in fact or law. 11. In respect of s 60(3)(e), the claims in my view were lacking in substance in the sense that they were not reasonably arguable and were misconceived principally by reason of the absence of evidence to support the arguments put forward. 12. In respect of s 60(3)(f), I have regard for, and take into account, as a factor in considering special circumstances the reliance by the Applicant on a vast amount of material, the majority of which was irrelevant: see Trajkovski v Harrison (No 2) [2023] NSWCATAP 228 at [13]-[14]. However, as the Applicant was self-represented I attach only limited weight to this in my satisfaction that there are special circumstances warranting an award of costs in this case. 13. In my view, weighing all factors I am satisfied that they collectively establish special circumstances and the Department has discharged its onus in that regard. The factors in support of the Tribunal's satisfaction far outweigh the matters raised by the Applicant to the contrary. General Discretion 1. In the exercise of the Tribunal's overall discretion I take into account the submissions by the Applicant that she was not aware that a costs order could be made against her and that she was not legally trained or represented at the hearing. I also take into account the fact that the Department did not in its original response, or in its submissions in the hearing in the Tribunal, indicate that a costs order would be sought. 2. However, against these matters was the failure on the part of the Applicant to at any stage come to grips with the evidence of the Department, which the Tribunal accepted. That evidence against her complaints must have been apparent to her at the very early stage of the proceedings. Also, ignorance of the Tribunal's powers does not negate the exercise of the discretion in favour of an order as to costs. 3. As to the other matters raised in oral submissions on 4 September 2023 I do not accept, and do not attach weight, to any of those matters. The Tribunal is not established to allow the pursuit of matters such as enforcing of policy which is not unlawful within the scope of the Anti-Discrimination Act. I pay no regard to what I was told about the advice received by the Applicant as to the likelihood or otherwise of a costs order being made. I have no regard for the alleged basis for the failure of mediation. I do not regard the costs application as having a different purpose, namely, to put pressure on the Applicant. 4. As to the argument that parties should not be discouraged from pursuing claims, s 60, in my view, is framed to avoid such an outcome. That is why it is necessary for the Tribunal to be satisfied as to special circumstances. If, however, special circumstances exist, and an order is made in the exercise of the Tribunal's overall discretion, the Tribunal is not required to desist from such a course because other persons may be discouraged from bringing claims. 5. Insofar as the Applicant raised the matters set out at [18] I note that they were fully addressed in the principal reasons and they do not weigh against the award of costs. I do not regard the absence of consultation for the decision to send the support person to the regional athletics meeting as relevant to my general discretion. 6. In respect of the Department's submissions filed on 7 September 2023 concerning the utilisation of the Tribunal's resources for claims found to be without merit, I do not attach additional weight to that submission. If the claims are without merit, as found in the principal reasons, it weighs in favour of the formulation of the requisite satisfaction as to the existence of special circumstances. Conclusion 1. Having reached a satisfaction that there are special circumstances, circumstances that, in my view, are out of the ordinary, that warrant an award of costs, the Tribunal in the exercise of its overall discretion and taking into account all the matters raised for its consideration concludes that an award of costs should be made in this case. Orders 1. The Applicant is to pay to the Respondent the Respondent's costs of the proceedings including the application for an award of costs dated 30 May 2023 as agreed, or if not agreed, as assessed pursuant to the relevant legal costs legislation as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 22 December 2023 - Anonymisation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2023