Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263

CITATION: Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263

DIVISION: Equal Opportunity Division

APPLICANT Michael Lynch PARTIES: RESPONDENT Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling

FILE NUMBER: 081119

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 8 July 2009

DATE OF DECISION: 13 October 2009

BEFORE: Furness G - Judicial Member; Mooney L - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member

CATCHWORDS: Costs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti Discrimination Act 1977

CASES CITED: Salon Today Pty Limited v M.M.I.R. Pty Limited [2009] NSWADT 71 Sloey v State Transit [1999] NSWADT 40

APPLICANT C Smith, barrister REPRESENTATION: RESPONDENT E Johnston, barrister

ORDERS: The respondent is to pay $5000 of the applicant's costs.

REASONS FOR DECISION

1 The applicant's claim that he was unlawfully discriminated by his employer dismissing him on the grounds of disability, was the subject of a decision by the Tribunal on 8 May 2009 ([2009] NSWADT 102]).

2 Following the publication of that decision the applicant made application for costs. A timetable was set and the applicant's submissions in relation to costs were filed on 10 June 2009 and the respondent's submissions in relation to costs were filed on 8 July 2009. Submissions 3 The applicant's submissions are based on ss.88(1A)(c) and (e) of the Administrative Decisions Tribunal Act (the ADT Act). He, as did the respondent, referred to the decision in Salon Today Pty Limited v M.M.I.R. Pty Limited [2009] NSWADT 71 in which the Tribunal considered the meaning of the amended s.88. Among other paragraphs referred to, were the following: 77 But the real key to understanding the Section 88 amendments is Section 88(1A) (e): "any other matter that the Tribunal considers relevant". These are very, very wide words, quite deliberately chosen by the Parliament, which quite clearly enjoin this Tribunal to look very carefully at the concept/principle of fairness and to widen the scope, without restriction, of the various aspects of the litigation – indeed, all the aspects of the litigation – that may result in a finding that the Tribunal is satisfied that it is fair to award costs. In my opinion it would be wrong to attempt to restrict Section 88(1A)(e). 78 That is not to say, by any means, that the usual principle in the Supreme and District Courts that "costs follow the event" is now to be adopted by this Tribunal. It is not. Costs can only be awarded under Section 88, but plainly the aspects of the litigation that need to be examined by the Tribunal to determine whether it is fair to award costs have been more than considerably expanded by the Parliament and ought, in fairness to the successful party, be embraced by this Tribunal. The test is, as always, "relevance".