Burns v Passas [2018] NSWCATAD 247

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Passas [2018] NSWCATAD 247 Hearing dates: On the Papers Date of orders: 15 October 2018 Decision date: 15 October 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: M. Tibbey Decision: 1 A hearing of the costs application is dispensed with pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2 Each party is to pay the party's own costs. Catchwords: COSTS – Equal Opportunity jurisdiction - special circumstances – Consideration- usual rule to apply. Legislation Cited: Civil and Administrative Tribunal Act, 2013, s36, s60. Cases Cited: Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAD Category: Costs Parties: Gary Burns (Applicant – Costs Respondent) Julie Passas (Respondent – Costs Applicant) Representation: Solicitor: Otto Stichter & Associates, solicitor ( for the Respondent and Costs Applicant. File Number(s): 2018/00066545

REASONS FOR DECISION 1. This was a costs application by the respondent, following dismissal of proceedings prior to a hearing on the merits.

Legislative framework 1. The Tribunal's power to award costs is set out in s 60 of the Civil and Administrative Tribunal Act, 2013 (NSW) (CAT Act) as follows: 60 COSTS (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, f)whether a party has refused or failed to comply with the duty imposed by section 36 (3), g) any other matter that the Tribunal considers relevant…. 1. NCAT has issued a Guideline as to costs applications stating, materially, as follows, at Clause 12: "Unless a party asks for costs, each party must pay their own costs. If a party wants to ask for costs, the application should be made in writing or verbally before the end of the hearing. The latest a costs application should be made is 28 days after the Tribunal has delivered the reasons for decision. Any further delay may be procedurally unfair and expensive for the parties and the Tribunal."