Loke v Department of Education and Communities (No. 2) [2015] NSWCATAD 199

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Loke v Department of Education and Communities (No. 2) [2015] NSWCATAD 199 Hearing dates: On the papers. Decision date: 01 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins Principal Member N Hiffernan General Member M Nasir General Member Decision: The respondent's application for costs is refused. Catchwords: Costs – the ordinary rule is that each party pay its own costs - whether the respondent has established sufficient grounds to satisfy the Tribunal that it is fair to award costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Cases Cited: Ahmadi v State of NSW (NSW Police Force) [2013] NSWADT 149 AT v Commissioner of Police [2010] NSWCA 131 Calderbank v Calderbank [1975] 3 All ER 333 Loke v NSW Department of Education and Communities [2015] NSWCATAD 111 Loke v Director General, Department of Education and Communities [2013] NSWADT 212 Tu v University of Sydney (No 2) [2002] NSWADTAP 25 Category: Costs Parties: Ganesh Loke (Applicant) Representation: Counsel: B Fogarty (Respondent)

Solicitors: Makinson d'Apice Lawyers (Respondent) File Number(s): 131079

Reasons for decision

Background 1. On 29 May 2015, our decision to dismiss the applicant's application/complaints of race discrimination, in his work at the respondent's School was published: see Loke v NSW Department of Education and Communities [2015] NSWCATAD 111 (Loke [2015]). The complaints the subject of that application were transferred by the Anti-Discrimination Board, at the request of the applicant, on 26 August 2013 (see Loke [2015], at [5]). They were transferred under s 93(b) of the Anti-Discrimination Act 1977 (NSW) (the AD Act). 2. On 23 June 2015, the respondent wrote to the Tribunal noting that in its oral and written submissions it had sought costs in the event the applicant's application/complaints were dismissed. As we had not addressed this application for costs, the respondent requested the matter be relisted so that submissions could be made in this regard. A copy of that letter was sent to the applicant. 3. On the same day, the applicant also wrote to the Tribunal objecting to the matter being relisted as the issue of costs had been discussed on three occasions during the course of the hearing of his application/complaints. 4. On 26 June 2015, the Registrar wrote to the parties informing them of directions made by the Presiding Member, Principal Member Higgins, in regard to the respondent's request. The directions provided for the parties to file and serve written submissions on the issue of costs together with any material on which their submission was based. The Presiding Member also made an order that, subject to either party raising an objection, in writing, on or before 7 August 2015, the respondent's application for costs would be determined on the papers pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 5. On the application of the respondent, Principal Member Higgins extended the time within which the parties were to file and serve their written submissions and supporting material. 6. The respondent filed and served its written submissions and supporting material on 21 July 2015. The supporting submission included a statutory declaration of Raymon Anderson, the solicitor having the day to day carriage of the matter in the firm representing the respondent. 7. In its submission the respondent sought an order that the applicant pay its costs in regard to our decision (Loke [2015]) and an earlier decision of Deputy President, Magistrate Hennessy in regard to other complaints the applicant had made against the respondent: Loke v Director General, Department of Education and Communities [2013] NSWADT 212 (Loke [2013]). 8. The quantum of costs sought by the respondent in regard to both matters was $115,760.54. 9. The applicant also filed and served an outline of written submissions on 21 July 2015. These submissions were dated 17 July. In these submissions, the applicant noted that as at the date of his submissions he had not received the respondent's submissions in accordance with the time prescribed in the directions. As we have noted these were filed and served on 21 July 2015. 10. In the absence of either party objecting to the matter being determined on the papers we have now considered the material filed by the parties. For the reasons set out below, we are not satisfied, that it is fair to make an award of costs in favour of the respondent.