Magick v Orange Local Aboriginal Land Council [2011] NSWADT 264

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Magick v Orange Local Aboriginal Land Council [2011] NSWADT 264 Hearing dates: 31 August 2011 Decision date: 15 November 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy Decision: The respondent's application for costs is refused. Catchwords: COSTS - late engagement of lawyers by applicant - application for adjournment - hearing re-listed and then application withdrawn - whether fair to award costs Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: AT v Commissioner of Police [2010] NSWCA 131 Category: Costs Parties: Fleur Magick (Applicant) Orange Local Aboriginal Land Council (Respondent) Representation: Gilbert and Tobin (Applicant) Whiteley, Ironside & Shillington (Respondent) File Number(s): 101098

REasons for decision

Introduction 1EQUAL OPPORTUNITY DIVISION (N HENNESSY , LCM (DEPUTY PRESIDENT)): The respondent, the Orange Local Aboriginal Land Council, has applied for a costs order against the applicant, Ms Magick. 2The applicant complained to the President of the Anti-Discrimination Board (ADB) that the respondent, who was her former employer, had discriminated against her on the grounds of her race (Aboriginal). The applicant said that she had been subjected to racist comments by co-workers because of a perception that she is not a Wiradjuri person and has no right to practice or teach Wiradjuri dance. She also said that she had been victimised after she complained. 3The President of the ADB referred the complaint to the Tribunal. The first case conference was held on 29 September 2010. Although the applicant initially had legal representation, her lawyers ceased to act in November 2010. After several further case conferences the matter was listed for hearing in July 2011. Following a letter dated 6 July 2011 from the applicant's new lawyers, those hearing dates were vacated. Her lawyers advised that since they had only recently been instructed, they were not in a position to act unless the Tribunal granted an adjournment. The respondent consented but sought their costs thrown away by reason of the adjournment. 4Directions were made for the filing and service of evidence and the matter was re-listed for hearing in September 2011. The applicant's evidence was due to be filed on 5 August 2011, but by letter of 11 August her lawyers advised that their client was withdrawing the complaint. 5By letter of 16 August 2011, the respondent applied for costs either of the entire proceedings or for the costs thrown away by reason of the adjournment of the hearing in July 2011 and the late discontinuance of the proceedings. The applicant opposed that application. 6The costs application has been determined 'on the papers': Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76.