Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd (No 2) [2011] NSWADT 204

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd (No 2) [2011] NSWADT 204 Hearing dates: On the papers Decision date: 30 August 2011 Jurisdiction: Equal Opportunity Division Before: S Rice, Judicial member L Monaghan-Nagle, Non-Judicial member L Mooney, Non-Judicial member Decision: The Applicant is to pay three quarters (75%) of the Respondent's costs incurred on and after 8 November 2007, as agreed or assessed Catchwords: Costs, discrimination Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Cases Cited: Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 Murtough v NSW Bar Association [2008] NSWADT 166 Rae -v- Commissioner of Police, New South Wales Police Force (2011) NSWADTAP 30 Category: Costs Parties: Avgoulla Hendrickson (Applicant) Yarra Bay 16 ft Skiff Sailing Club Ltd (Respondent) Representation: Counsel S Coleman,(Applicant) File Number(s): 071076

Reasons for decision

Background 1On 24 February 2011 the Tribunal published its decision and reasons, dismissing complaints of discrimination and victimisation made by Ms Avgoulla Hendrickson against Yarra Bay 16 ft Skiff Sailing Club Ltd. 2In its decision the Tribunal commented on the manner in which the proceedings were conducted. The Tribunal expressed the preliminary opinion that in this case fairness does not require displacement of the statutory presumption that each party will pay their own costs (s88 Administrative Decisions Tribunal Act 1997 (NSW)). The Tribunal did, however, invite the parties to make an application for costs if they wished. 3The Club subsequently applied for a costs order and filed submissions in support of the application. Ms Hendrickson filed submissions resisting the application. 4In this jurisdiction, each party is to bear their own costs, except when the Tribunal is satisfied that it is fair to award costs having regard to considerations prescribed in s88(1)(a)-(e) of the Administrative Decisions Tribunal Act 1997 (NSW). The exception is 'not lightly to be applied' ( Rae -v- Commissioner of Police, New South Wales Police Force (2011) NSWADTAP 30, [7), because the risk of a costs order may ' discourage people from airing their grievances' . Although the prospect of a costs order helps 'to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others' ( Murtough v NSW Bar Association [2008] NSWADT 166, [27]), this a statement of the conventional policy rationale for there being the prospect of a costs order, and the situation under the Administrative Decisions Tribunal Act is that that prospect arises only when awarding costs would be 'fair' in light of prescribed considerations. 5The considerations prescribed in s88(1)(a)-(e) are: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. 6Before considering the parties' submission, it is relevant to note that throughout the proceedings, from at least September 2007, Ms Hendrickson was legally represented. Counsel was briefed for Ms Hendrickson from at least February 2008.