McKellar v Bourke Bowling Club Ltd [2015] NSWCATAD 263

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McKellar v Bourke Bowling Club Ltd [2015] NSWCATAD 263 Hearing dates: On the papers Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Conley Senior Member, J Goodman Delahunty, General Member, I O'Connell, General member Decision: The respondent's application for costs is refused. Catchwords: Costs – Respondent's application for costs – whether it is fair to award costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Tribunal Act 1997 Cases Cited: Loke v Department of Education and Communities (No2) [2015] NSWCATAD (1 October 2015); Da Rin v Duffy (No3) [2015] NCWCADTOD 88. Borsak V Cheung [2006] (No2) NSWADT 208 (7 July 2006); Hendrikson v Yarra Bay 16ft Skiff Sailing Club (No2) NSW ADT 204; Alramon Pty Ltd v Jonamill Pty Ltd (No 2)[2009] NSWADT, 302; AT v Commissioner of Police, NSW [2010] NSWCA 131; Wong v Office of the Board of Studies NSW (No 4)[2012] NSWADT 128 Category: Costs Parties: Loretta McKellar (Applicant) Bourke Bowling Club Ltd (Respondent) Representation: Solicitors: Western NSW Community Legal Centre (Applicant) Booth Brown Legal (Respondent) File Number(s): 131041

reasons for decision

Background 1. The applicant is an Aboriginal woman and is married to an Aboriginal man. They were both members of the respondent Club, which is a Registered Club located in Bourke New South Wales. She brought proceedings against the respondent claiming that the respondent discriminated against her on the ground of her race and marital status. Her husband also made a complaint that the respondent had discriminated against him on the ground of his race. Their complaints arose out of the same factual events and so were directed to be heard together. They were listed together in case conferences and were heard together over two days in Dubbo in the Administrative and Equal Opportunity Division of this Tribunal. The decision was reserved and on 5 August 2015, the applicant's complaint and that of her husband were dismissed by the Tribunal. In the orders and Reasons for Decision, the Tribunal made directions for the filing and service of any application for costs, if any costs application were to be made. The Tribunal further directed that if such an application were to be made, then it would be dealt with on the papers. 2. The respondent subsequently filed an application for an order for the payment of costs. The applicant filed written submissions opposing any order for costs. 3. In the reasons for the decision in the substantive matter, the Tribunal noted that the President of the Anti-Discrimination Board had referred the applicant's complaints to the former Administrative Decisions Tribunal (the ADT). The complaint was filed in this Tribunal on 21 May 2013. On 1 January 2014, the ADT was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act (the ADA) 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal, pursuant to the Civil and Administrative Tribunal Act 2013, (the CAT Act) Schedule 3, cl 3(1). The matter was heard on 18 and 19 March 2015. The Tribunal reserved its decision. The Tribunal noted that in accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, the application was "part heard proceedings". 4. In relation to this application for costs, because of the application of the transitional provisions, the provisions of s88 of the Administrative Decisions Tribunal Act 1997 in force immediately before the commencement of the Civil and Administrative Tribunal Act apply. Loke v Department of Education and Communities (No2) [2015] NSWCATAD (1 October 2015); Da Rin v Duffy (No3) [2015] NCWCADTOD 88.