Aouad v McDonalds Australia Limited

NCAT Administrative and Equal Opportunity|2019-03-29

Reasons for decision

On 1 December 2017, Sherene Aouad (the Applicant), her brother Isaac Aouad, and their mother went to McDonalds in Auburn. Isaac is diagnosed with autism, a speech delay and a global development delay. The Applicant assisted her brother in ordering an item from the menu and gave him the receipt to pick up the order when it was ready. The Applicant alleges that the McDonalds employee ignored Isaac waiting there and "belittled, mocked and… intentionally discriminated against [him] due to his disability" by laughing at him with a co-worker, and repeatedly calling the receipt number when "she was aware" that he held the receipt but had not come forward to pick up the meal. The Applicant complained to the store supervisor but was dissatisfied with their response.
The Applicant complained to the Anti-Discrimination Board (the ADB) on 15 December 2017 alleging disability discrimination in goods and services against McDonalds Australia Limited (the Respondent). The ADB accepted the complaint on 18 December 2017 pursuant to s 89B of the NSW Anti-Discrimination Act 1977 (the AD Act). Following correspondence with the Respondent and Applicant, and an unsuccessful conciliation on 9 August 2018, the President of the ADB referred the complaint of disability discrimination to the Tribunal on 27 August 2018 pursuant to s 93C of the AD Act.
At the hearing on 28 March 2019 the Applicant did not appear in person, but was eventually contacted by the Tribunal and appeared via telephone. She requested an adjournment which was refused on the basis that summonses had been previously sought by her and the Tribunal had thereby ordered four witnesses to attend to give evidence, those witnesses being present at the hearing. The Respondent made an application for dismissal of the proceedings pursuant to ss 55(1)(c) and 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (the CAT Act), which was withdrawn when the Applicant opposed the application. The Respondent consented to the Applicant then appearing via telephone to progress the hearing, and to the cross examination of the Respondent's four witnesses by the Applicant via telephone.

Discrimination

Section 49B of the AD Act defines what constitutes 'discrimination' on the ground of disability. It provides at s 49(B)(1)(a): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability.
Section 4 defines "disability" as: "disability" means-- (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
It may be inferred from the Applicant's materials that the Applicant relies on s 49M of the AD Act, as the materials do not disclose any other intended cause of action. Section 49M provides: 49M PROVISION OF GOODS AND SERVICES (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
The person being treated more favourably than the individual suffering the discrimination in the "same circumstances" is generally called the "comparator". The comparator may be a real person, for example where it is demonstrated that the Applicant was treated differently to another person in the same circumstances, or a hypothetical person: Boehringer Ingelheim v Redropp (1984) (EDT(NSW), No 16 of 1981, 29 October 1982, unreported; Haines v Leves (1987) 8 NSWLR 442. The question of what constitutes the "same circumstances" as referred to in s 49(B)(1)(a) was considered in Purvis v New South Wales [2003] HCA 62. In that case, a student was expelled because of his violent behaviour, and his violent behaviour was the consequence of the student's disability. The High Court found that the correct comparator was a student without a disability, not a student that did not display violent behaviour. As such, the comparator was a student who displayed the same behaviour but did not have a disability. In those circumstances, the High Court held that the school would have treated the comparator in the same way it treated the expelled student and the discrimination claim was dismissed.
In addition to identifying the correct comparator, the disability must have had a causal effect on the decision to commit the discriminatory act, as indicated by the words "on the grounds of" in s 49B(a) of the AD Act. The difficulty in of characterising the "grounds" on which a discriminatory act occurs was referred to by Kirby J in Haines v Leves (1987) 8 NSWLR 442 (at p 76, 842): "the words of connection 'on the grounds of require judgment and the characterisation of conduct in terms of its causation. Most activities of life have multiple causes. The assignment of the 'grounds' of the less favourable treatment requires of the Tribunal the characterisation of the relevant causally operative factor resulting in the less favourable treatment. In some cases, where multiple possible causes for discrimination are presented, the task of characterising the 'grounds' is a difficult one which calls for judgment and discernment".
As identified in Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 3043, the Tribunal is required to ascertain the "real", "genuine" or "true" reasons for the differential treatment: "one of the reasons for the less favourable treatment the Applicant received was 'on the ground of, 'because of, and 'by reason of her disability, to use the language of the majority decision in Purvis v New South Wales ('Purvis') that she had tuberculosis. This was one of the 'real', 'genuine' or 'true' reasons for the differential treatment received by the Applicant. The Applicant was treated less favourably than a hypothetical comparator due, at least in part, to her tuberculosis".

Costs

The Tribunal's power to award costs is set out in s 60 of the 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. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
In Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130 Montgomery SM said: 10 Where a court or a tribunal is conferred with the discretion to award costs, such discretion must be exercised judicially and not capriciously (Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72 at 81). The fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97. ... 17 It is the applicant for costs who bears the onus of establishing an entitlement to costs in a jurisdiction where the primary rule is that each party bears their own costs: Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at paragraph [18].
In A J Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 143, (AJ Holdings) Sorensen SM said: 14 It is not enough or sufficient to exercise the discretion that the circumstances are "special"; the special circumstances identified must also "warrant" an order for costs: B and L Linings Pty Ltd and Anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14 (B & L Linings) at [56]; Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [18-21] (Fitzpatrick Investments). ... 15 ... For the purposes of s 60(2), "special circumstances" are circumstances surrounding the conduct of the case that are out of the ordinary, but without having to be extraordinary or exceptional: …. It seems the core of the idea of "special circumstances" is that there is something unusual or different to take the matter out of the ordinary course: Fitzpatrick Investments at [19].
The above description of "special circumstances" has been applied in numerous cases including those referred to in AJ Holdings at [15], in Redmadi Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 231 at [137], and in Fitzpatrick Investments at [17] and [20]. In particular, at [60] in CRIPPS and Another v G & M DAWSON Pty Ltd and Another; G & M DAWSON Pty Ltd and Another v CRIPPS and Another [2006] NSWCA 81, Santow JA, with whom Mason P and Brownie JA agreed, said that for special circumstances to apply in relation to an application by the Chief Commissioner for costs before the Tribunal and Appeal Panel of the Tribunal's predecessor, the Administrative Decisions Tribunal (ADT), (in respect of relevantly identical legislation concerning the award of costs) "For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional."

Consideration

As submitted by the Respondent, the Applicant needs to establish, on the balance of probabilities, that: 1. Isaac Aouad has a disability; 2. Isaac Aouad was treated less favourably than another person in the same circumstances; and 3. The reason for the less favourable treatment was his disability.
We accept the Respondent's submission that the Applicant failed to provide direct evidence of Isaac Aouad actually having a disability in the form of a diagnosis of autism as claimed. However, on the balance of probabilities, in considering the Applicant's evidence and the absence of any evidence or submission to the contrary, we accept that Isaac does have autism, and agree that autism fits within the definition of "disability" in the AD Act.

The circumstances

The Applicant, her brother Isaac Aouad and mother Fatme Aouad attended McDonalds Auburn on 1 December 2018. The Applicant was 24 years old at the time, and her brother Isaac was 9 years old. The Applicant and her mother encouraged Isaac to order himself some food "as the McDonald's was not busy at the time, we saw this as an opportunity to practice Zac's social skills and expressive language". Isaac had not ordered food himself before, and the Applicant's uncontested evidence was that he "required assistance as the girl taking Zac's order seemed to struggle to understand what he was saying as he was attempting to tell her what he wanted", so the Applicant approached the customer service counter and assisted: I approached the ordering counter and helped him by assisting him communicate with the worker and make a payment. After the order was placed, I gave Zac his receipt, told him to stand in front of the counter and watched him walk to the waiting area where the receipt numbers are called, and orders picked up. I then heard the server, call out his order number, I later discovered that this employee is named Shayma. At this time Zac was waiting at the counter, but he did not respond to the call. Shayma then called out the number a second time a little louder.
What followed became the subject of this complaint. The Applicant claimed: I then saw Shayma repeat the number twice in a loud voice whilst looking at Zac and laughing. At this time, I could also see a male employee who I later found out is named Eweiss standing next to Shayma, I could see them talking and laughing whilst they looked at Zac, but I could not hear what they were saying.
These being the relevant circumstances, we accept the Respondent's submission that the correct comparator for the purpose of determining whether there has been any discrimination on the basis of disability is a customer who did not collect his order number when it was called or displayed, but did not have a disability.
The Respondent denied the Applicant's characterisation of Isaac's "treatment" by the customer service staff. The Respondent submitted that neither Shymaa (referred to by the Applicant as Shayma) nor Owais (referred to by the Applicant as Eweiss) knew that Isaac had placed the order being called, because a different staff member had taken the order; that the staff members were not laughing about or at Isaac, and were not looking at him while they conversed; and that the staff members were not aware that Isaac had a disability or characteristics of a disability, so there was no causal connection even if the conduct was as complained about by the Applicant.
Shymaa Mohamed was one of the customer service staff involved. At the time of the incident in December 2018 she was 15 years old. She gave evidence that she wasn't laughing at Isaac with her co-worker, but was having a conversation with him at the time. She did not know that Isaac had placed the order, having not taken the order herself. She did not know he had a disability and denied treating him differently to any other customer, explaining that "many customers place an order and then walk away". She said that there were other customers waiting for their orders at the time and was unaware of any issue until the Applicant confronted her aggressively, which made her upset. We accept Ms Mohamed's evidence, which was firm under cross examination by the Applicant. Her oral evidence was consistent with her written evidence, including an incident report dated to approximately 4 weeks after the incident.
Owais Chahadah was the other customer service staff member alleged by the Applicant to be laughing at her brother with Ms Mohamed. His evidence was largely consistent with Ms Mohamed's. He recalled Ms Mohamed calling out the order several times, and that the order could not be placed on the counter because it was a soft serve ice-cream. He stated that it wasn't out of the ordinary for an order to be called out multiple times if it wasn't collected. He first saw Isaac watching the TV screen near the customer service area when he called out the order, but he was not the only customer waiting in the area, and he was unaware that Isaac was waiting for an order. He couldn't remember the Applicant asking him to speak to his Manager. The only inconsistency between his evidence and Ms Mohamed's was that he recalled that after they stopped calling out the order, "another co-worker made a joke and we laughed and talked, as we ordinarily do while working", but he confirmed that "we were not talking about the boy Isaac Aouad". Mr Chahadah was also not aware that Isaac had a disability until the Applicant informed him of that fact. We accept Mr Chahadah's evidence in relation to the incident, noting that there were some inconsistences between his evidence and Mr Hamid's in relation to his conduct after the incident.
Mohammed Hamid was the customer service shift manager who intervened when the Applicant was confronting Ms Mohamed and Mr Chahadah. In cross examination he agreed that Mr Chahadah's manner towards the Applicant was "disrespectful and hostile", but denied his own manner was dismissive. This contradicted Mr Chahadah's evidence that his manner towards the Applicant was "firm but polite". On balance, we accept Mr Hamid's evidence that Mr Chahadah's tone and manner was likely hostile towards the Applicant, on the basis of the consistent evidence that he was defensive of Ms Mohamed's treatment by the Applicant, in circumstances where the Applicant made Ms Mohamed cry. However, we do not consider that this factual matter has any bearing on whether or not the Respondent, through its employees, discriminated against the Applicant's brother. It concerns the Applicant's treatment after the alleged discriminatory conduct occurred, not the discriminatory conduct itself.
Sahil Malhotra was the restaurant manager but was not present at the time of the incident. He provided evidence of the Respondent's practices and procedures, training, and customer service processes which were not disputed by the Applicant, and which the Tribunal therefore accepts.
Mr Mahotra viewed CCTV footage of the incident shortly after and provided evidence of what he viewed. Unfortunately that CCTV footage was not saved and was overwritten as per the Respondent's usual processes after 30 days, so was not available to the Tribunal for viewing. Mr Mahotra's evidence of what he viewed of the CCTV footage was: When watching the CCTV footage I could see the faces of both customers and staff members, but could not hear any sound. I saw that: (a) Crew member, Shymaa Mohamed was on the drinks station and had prepared a soft serve order. She then proceeded to the front counter to present the order. (b) There were approximately two to three customers waiting in the order pick up point. One of the customers was a short boy who was playing with the community notice board. (c) Another crew member, Owaiss Chahadah, come to the front counter to present another order. (d) Shymaa and Owaiss then began talking. I did not see them laughing. (e) I then saw a customer, who I now know to be Sherene Aouad walk to the front counter. As she walked to the counter, the boy collected the soft serve order. (f) I could then see that Owaiss and Ms Aouad were talking and Shymaa started crying. (g) The shift manager, Mohammed Hamid then came over to Owaiss and Ms Aouad, (h) Shortly thereafter Mohammed and Ms Aouad then left the area of the front counter.
Mr Mahotra's evidence is inconsistent with the Applicant's in relation to whether there were other customers waiting to collect orders and whether Ms Mohamed and Mr Chahadah were laughing. On balance we accept Mr Mahotra's evidence of what he viewed on the CCTV footage, which is consistent with the other employees' evidence. In cross examination he was mainly challenged in relation to his treatment of the Applicant and management of employees after the incident, which we consider to be irrelevant to the matters before the Tribunal for determination. His evidence of what he viewed on the CCTV footage was unchallenged by the Applicant.
The consistent evidence of Mr Mahotra, Mr Chahadah and Ms Mohamed, which was unchallenged, was that it was usual practice for the customer service staff to call out an order more than one time if it was not collected immediately, and that it was not unusual for this to occur. We accept that evidence and that this is what occurred on the day in question when Isaac Aouad didn't immediately pick up his order.
In cross examination the Applicant accepted that it was a possibility that the service counter staff could not see the receipt in Isaac's hand, and agreed that she wasn't sure if Ms Mohamed had seen the receipt. On balance, we accept the evidence of Ms Mohamed and Mr Chahadah that neither were aware that Isaac Aouad had ordered the item which they were calling, and that they did not realise that he was waiting to pick up an order because neither noticed that he was holding a receipt. We accept the consistent evidence that there was a Community Notice board and a television near the customer service area, and consider it likely that Ms Mohamed and Mr Chahadah saw Isaac standing in the area but did not realise it was for the purpose of picking up an order.
We accept the evidence of Ms Mohamed and Mr Chahadah that they were not aware that Isaac Aouad had a disability. There was no evidence that Isaac's disability was visually or otherwise identifiable to the employees.
The Applicant accepted that she could not and did not hear what Ms Mohamed and Mr Chahadah were talking about, and that her allegation that Ms Mohamed and Mr Chahadah were laughing at Zac was based entirely on her assumption. The Applicant's assumptions were not supported by the evidence.
We find on the basis of the evidence that there was no detrimental or less favourable treatment of Isaac Aouad in the circumstances. With reference to the identified comparator, the Respondent's employees treated Isaac Aouad exactly the same as any other individual who had not picked up their order when it was called or displayed, that treatment consisting of the number being called out a number of times.
We also find that the Respondent's employees were not aware, until the Applicant informed them, that Isaac Aouad had a disability; and that his disability was not a basis for any of their actions. The Application is therefore dismissed.

Costs

The Respondent sought costs on the basis of the Applicant's repeated non-compliance with the Tribunal's orders and directions.
The Respondent submitted the following details of the Applicant's non-compliance, which we accept on the basis of our review of the Tribunal's directions and orders made: 4.1 On 19 September 2018, orders were made for the filing and service of evidence. This included an order that the Applicant provide Points of Claim and any evidence including statements on or before 17 October 2018. 4.2 On 5 November 2018, the Respondent wrote to NCAT seeking an amendment to the timetable after being notified by the Applicant that she would be unable to meet the timeframe required by the 19 September 2018 orders. 4.3 On 9 November 2018, the 19 September 2018 timetable orders were varied such that the Applicant was to provide Points of Claim and any evidence including statements on or before 16 November 2018 and re-listing the directions hearing to accommodate the delay. 4.4 On 19 November 2018, as a result of non-compliance by the Applicant with the 9 November 2018 orders, the Respondent wrote to NCAT seeking that the timetable be amended. In response, the Applicant wrote to the NCAT requesting an extension of time. 4.5 On 23 November 2018, the 9 November 2018 timetable were orders such that the Applicant was to provide Points of Claim and any evidence including statements on or before 26 November 2018 and re-listing the directions hearing to accommodate the delay. 4.6 On 10 December 2018, the Respondent received the Applicant's Points of Claim and evidence. On 13 December 2018 the Respondent received correspondence from NCAT noting that the Applicant's materials had not been filed and requiring the Applicant to provide 3 hardcopies to NCAT urgently. The Respondent was not subsequently served with a sealed copy of the materials. 4.7 On 11 December 2018, as a consequence of the Applicant's default with the orders, the Respondent wrote to NCAT seeking amendment to the timetable. 4.8 On 17 December 2018, NCAT made orders varying the 23 November 2018 orders, including: (a) that the Respondent file and serve Points of Defence and any evidence including statements by 23 January 2019, and (b) that the Applicant file and serve any material in reply by 8 February 2019. 4.9 On 23 January 2019, the Respondent filed with NCAT and served on the Applicant the following documents: (a) Respondent's Outline of Submissions (b) Respondent's Points of Defence (c) Statement of Sahil Malhotra, including attachments (d) Statement of Mohammed Hamid, including attachments (e) Statement of Shymaa Mohamed, including attachments, and (f) Statement of Owais Chahadah, including attachments. 4.10 The matter was listed for directions on 12 February 2019 at 2pm. The Applicant did not attend the directions hearing, but appeared when telephoned by the NCAT in session. At the request of the Applicant orders were made extending the time to file and serve materials in reply until 22 February 2019. Orders were also made listing the matter for hearing. 4.11 On 8 March 2019, the Respondent issued Summons to appear to two witnesses who were no longer employed by it, namely Mr Hamid and Mr Chahadah. 4.12 On 12 March 2019 the Applicant requested an extension of time until Monday 25 March 2019 to comply with the 12 February 2019 orders. The Respondent objected to the request. 4.13 On 15 March 2019, NCAT made orders extending the time for compliance until 18 March 2019 and noting that vacating the hearing would not be consistent with the Civil and Administrative Tribunal Act. 4.14 The Respondent was not served with any materials in reply.
In relation to the Applicant's conduct at hearing, the Respondent submitted: 4.15 On 28 March 2019, the Applicant did not attend at the hearing. When contacted by NCAT in session the Applicant requested the hearing be adjourned. That request was refused and the hearing proceeded with the Applicant appearing via telephone. Due to the Applicant's availability throughout 28 March 2019, the hearing proceeded in a manner which the Respondent submits may fairly be characterised as being at the Applicant's convenience. This meant that the full sitting time could not be utilised and, at the end of sitting, the matter was adjourned until noon on 29 March 2019 for closing submissions. At this time the Applicant was directed to notify NCAT beforehand should she not be available when the hearing was to resume. 4.16 On 29 March 2019, the Applicant appeared by telephone and requested a five minute adjournment. Thereafter the Applicant could not be contacted and the hearing was unable to proceed. As such, NCAT ordered the parties provide written closing submissions. 4.17 The Applicant did not provide written closing submissions by the timeframe specified in the 29 March 2019 orders.
We accept the Respondent's representation of the Applicant's conduct at hearing. The Tribunal refused the Applicant's request for an adjournment on the basis that it had granted adjournments of the hearing previously, there was no satisfactory reason why the hearing should be again adjourned in the context of witnesses being summonsed and present, and there was no basis on which the Tribunal could rely on the Applicant's assertions that she would appear on another occasion. The Applicant's telephone appearance on 28 March 2019 was limited by her availability to four disjointed sessions, each of less than 45 minutes' duration. This was an entirely unsatisfactory course which was allowed by the Tribunal only because the Respondent was willing to proceed in that manner in order to finalise the proceedings, bearing in mind the objects of the CAT Act and its guiding principle.
The Respondent submitted that special circumstances exist warranting the payment of a portion of the Respondent's costs because: 1. The Applicant did not give notice of her absence from the proceedings on 29 March 2019 as directed, which resulted in the matter being unable to proceed for closing submissions and which put the respondent to a disadvantage, namely the cost of attendance and then of preparing written submissions; 2. The Applicant prolonged the time taken to resolve the proceedings and acted contrary to the guiding principle by failing to comply with Tribunal directions and by causing NCAT to set further timetables for evidence on no less than five occasions; 3. The proceedings were misconceived or lacking in substance or, in the alternative had no tenable basis in fact, for the reasons set out at part 2 above and in that they proceeded on the sole basis of two assumptions, being that: 1. Ms Mohamed knew who the order was for, and 2. Ms Mohamed laughed when looking in Zac's direction. 3. The Applicant proceeded on these assumptions notwithstanding immediate denials of both matters from Ms Mohamed and other explanations which, the respondent submits, were more plausible than those upon which the Applicant's Application was based.
The Applicant did not make submissions to the contrary, despite being provided with the opportunity to do so.
We do not agree that the circumstances at 43(b) and 43(c) are sufficiently out of the ordinary to amount to "special circumstances". Unfortunately, circumstances where one or both parties prolong proceedings by failing to comply with Tribunal directions and orders are common, as are applications which are misconceived or lacking in substance, especially where an applicant is self-represented. However, we do agree that the Applicant's conduct described at 43(a) above, and on 28 March 2019 at the Tribunal hearing was sufficiently out of the ordinary to amount to special circumstances. We also consider that the Applicant's conduct at hearing exacerbated her repeated failure to comply with Tribunal directions requiring the Respondent to arrange additional timetables for progression of the matter.
The Applicant's conduct at hearing included her failure to appear initially on 28 March 2019 without prior notice and then by making herself available only to appear by telephone in limited sessions; on both 28 and 29 March 2019, requiring the Tribunal to chase her repeatedly via telephone to ensure her appearance for the purpose of progressing the matter; by requesting that the Tribunal adjourn at the end of the first hearing day prior to the conclusion of the hearing to allow her to prepare closing submissions for oral delivery on the following day, and then failing to respond to the Tribunal's telephone call immediately after briefly appearing again via telephone on 29 March 2019; by failing to provide the Tribunal with closing submissions, either oral or written, despite asking for the hearing to be adjourned for that purpose and the Tribunal's subsequent orders. The extraordinary inconvenience these circumstances put the Tribunal and Respondent to during and after the hearing warrants an award of costs.
The Respondent sought the entire costs of the proceedings in the amount of $35,356, or in the alternative, a portion amounting to the costs of amending the timetable orders, attendance on 29 March 2019, and preparation of written closing submissions in the amount of $4632. The expenditure of costs was supported by an affidavit of the Respondent's solicitor received by the Tribunal on 12 April 2019.
The award of costs is not punitive, but compensatory. We consider that an appropriate award for the purposes of compensating the Respondent would be for the portion of the Respondent's costs sought in the amount of $4632, relating to the additional work and appearance required of the Respondent by the Tribunal as a result of the Applicant's conduct at hearing.

Orders 1. The Application is dismissed. 2. The Applicant is to pay the Respondent's costs in the amount of $4632 within 28 days.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2019

[2016] NSWCATAD 3043

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Cases Cited (14)