Maylor (No. 2) -v- Mid North Coast Area Health Service [2001] NSWADT 118

CITATION: Maylor (No. 2) -v- Mid North Coast Area Health Service [2001] NSWADT 118 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Lesley Maylor RESPONDENT Mid North Coast Area Health Service FILE NUMBER: 001044 HEARING DATES: 18/04/2001, 19/04/2001 SUBMISSIONS CLOSED: 04/19/2001 DATE OF DECISION: 07/16/2001

BEFORE: Britton A - Judicial Member; McDonald O - Member; Nemeth de Bikal L - Member APPLICATION: Costs MATTER FOR DECISION: Costs application LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Langley v University of NSW (1984) EOC 92-018 CASES CITED: Ohn v Walton (1995) 36 NSWLR 77 Latoudis v Casey (1990) 170 CLR 534 Townsend v State Rail Authority [1999] NSWADT 104 APPLICANT REPRESENTATION: In person RESPONDENT K Eastman, barrister ORDERS: 1. Application for costs is dismissed.

1 On 19 April 2001, this Tribunal dismissed the applicant's complaints of disability discrimination, victimisation and part of the complainant relating to marital status pursuant to s111 of the Anti-Discrimination Act 1977 (the Act ). 2 On that day, the complainant was granted leave to discontinue that part of the application which had survived the dismissal of the rest of his complaint. It was consequently dismissed also. 3 The respondent now seeks an order for costs against the complainant.

Relevant legislation 4 Section 88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that, subject to the Tribunal's own rules and any other legislation, costs will only be awarded "if [the Tribunal] is satisfied that there are special circumstances warranting an award of costs." 5 This section must be read in conjunction with s 111(1) of the Act which provides, in summary, that the Tribunal may summarily dismiss a complaint it is satisfied is "frivolous, vexatious, misconceived or lacking in substance, or that for any other reason… should not be entertained." 6 Section 111(2) provides that where a complaint is dismissed under s 111(1), the Tribunal may order the complainant to pay the respondent's costs, notwithstanding the statutory presumption enshrined in s.114 of the Act that each party will bear its own costs. 7 It appears to us that the terms of s 88(1) of the Act are over-ridden by the terms of s 111 because s 88 states that the power to award costs is to be read down in accordance with the terms of other Acts. Section 111 therefore takes precedence over s88. Accordingly, it is unnecessary, in our view, for the respondent to demonstrate "special circumstances", although it is, of course, arguable that a dismissal of a complaint under s 111 might give rise almost automatically to a presumption that there are special circumstances occasioning an award of costs. That, however, is an issue for another day.