Parliament Square Property Pty Ltd (First Respondent)

1. The proceedings be transferred to the Magistrates Court.
2. The Principal Registrar forward the Tribunal's file to the Administrator of the Magistrates Court with an order in these terms and a copy of these reasons for determination.
3. The complainant's application for the costs of the application to join the second respondent be refused.
4. The respondents pay the costs of the complainant's application to transfer the proceedings.

Anti-Discrimination - Application to transfer proceeding to court of a state - Applications for costs of transfer and joinder - Opposition to transfer and joinder - Exercise of discretion

Constitutional Law - Judicial power - Federal jurisdiction - Civil and Administrative Tribunal - Authority to transfer proceedings to court of a state - Authority to order costs

Anti-Discrimination Act 1998, ss 65A and 81;

Disability Discrimination Act 1992 (Cth);

Judiciary Act 1903 (Cth), s 39;

Supreme Court Civil Procedure Act 1932;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 10, 83, 120, 131;

Trade Practices Act 1974 (Cth);

Victorian Civil and Administrative Tribunal Act 1998 (Vic), Pt 3A.

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1;

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15;

Calderbank v Calderbank [1975] 3 All ER 333;

Cawthorn v Parliament Square Property Pty Ltd [2024] TASCAT 213;

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16;

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22;

Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48;

Hindle v Elliott (No 2) [2024] TASCAT 114;

Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191; (2023) 414 ALR 1;

Maree Summers v State of Tasmania (Department of Education) & Ors [2020] TASADT 5;

Moorgate Tobacco Company Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457;

Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253;

State of Tasmania v Anti-Discrimination Tribunal (2008) 17 Tas R 227; [2008] TASSC 23;

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34;

Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; [2022] VSCA 226;

Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213.

Complainant: S Beckett SC - Hobart Community Legal Service

1. This decision addresses three interlocutory applications in a matter referred for inquiry under the Anti-Discrimination Act 1998 (ADA). The complainant uses a wheelchair and lives with a disability. He says that the respondents unlawfully discriminated against him by not providing adequate wheelchair access to a large mixed-use building in Hobart, now owned by the second respondent and previously owned by the first respondent, called Parliament Square.
2. Over the first respondent's opposition, the Tribunal ordered that the second respondent be joined to the inquiry: Cawthorn v Parliament Square Property Pty Ltd [2024] TASCAT 213 (Joinder Ruling). The complaint seeks his costs of the successful joinder application. That is the first application.
3. The complainant has also applied for the proceeding to be transferred to the Magistrates Court. The respondents oppose the transfer. That is the second application.
4. The third application is for the complainant's costs of making submissions in respect of the transfer application.

1. The parties filed a significant quantity of material. The respondents' solicitor's affidavit runs to 12 pages. The complainant's solicitor's affidavit, including annexures, runs to 228 pages. Some four sets of written submissions were also filed.
2. Determining the three applications does not require me to find many facts. The affidavit evidence sets out the proceedings' history in detail. Based on the affidavits and my perusal of the file, I find:
   • On 1 March 2023, the complainant lodged his complaint with the Anti-Discrimination Commissioner (the Commissioner).
   • There was some confusion between the complainant and the Commissioner as to the identity of the owner(s) of the Parliament Square building. Correspondence passed between the Commissioner, the complainant, and the respondents on the issue.
   • On 23 May 2023, the Commissioner referred the complaint to the Tribunal for inquiry.
   • The first respondent (initially under a different name) was the building's legal owner until 28 June 2023. The second respondent became the legal owner that same day, such ownership being recorded on the title on 12 September 2023.
   • On 23 February 2024, the second respondent wrote to the complainant to advise of that fact and invite the name of the first respondent to be "update[d] to" the second respondent.
   • On 9 May 2024, the parties agreed that it was "premature to consider" whether the proceedings should be transferred and that "[w]hether federal jurisdiction is engaged will depend on the pleadings", which I take to be a reference to the parties' respective statements of facts, issues and contentions. No doubt the parties were alive to the issue because of the relevantly identical proceedings in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (Citta).
   • On 8 July 2024 the complainant's solicitors wrote to the respondents' solicitors to invite them to consent to the second respondent being joined. The complainant describes this letter as a Calderbank[1] offer.
   • On 22 October 2024, another member of the Tribunal heard the complainant's application to join the second respondent. Over the first respondent's opposition, on 22 November 2024 the second respondent was joined: Joinder Ruling at [56].
   • On 19 March 2025, the first respondent filed a statement of facts, issues, and contentions. In that statement, the first respondent raised a defence to the ADA claim under the Disability Discrimination Act 1992 (Cth) (DD Act). This was the same defence as in Citta.
   • That was the first time that a party had raised any federal jurisdiction.
   • On 27 March 2025, the complainant applied for the matter to be transferred to the Magistrates Court under the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), s 131.
   • On 28 March 2025, the complainant applied for his costs of the joinder application.
   • On 16 June 2025, the complainant made a written application for his costs of the transfer application, that application having been foreshadowed earlier.
   • The costs and transfer applications were heard in a relatively formal way. The respondents wanted applications and submissions to be made in writing. At a directions hearing before me, the complainant submitted that this approach to interlocutory applications was leading to delays and additional costs. There was some merit in the submission.
3. A significant volume of the parties' evidence and submissions is devoted to the circumstances in which the joinder application was foreshadowed, made, and heard. It is unnecessary for me to make detailed findings. It suffices to say that there was a lack of clarity between the parties as to who the appropriate respondent(s) should be. That was not the fault of either party. Rather, it was the product of:
   • the somewhat complex legal ownership and equitable interest structure of the Parliament Square building;
   • the first respondent's change of name and subsequent sale of the building to the second respondent;
   • the continuing nature of the ADA complaint, which took into account conduct occurring over the preceding 12 months; and
   • the parties' various uses of the words, "update[d]", "joined", and "substituted" in the context of identifying the respondents to the ADA complaint.
4. Viewed holistically, those four matters are not the 'fault' of a particular party. Rather, they are the product of the particular circumstances and the differences between amending a complaint and joining a party under the ADA, ss 65A and 81(2). It is against those circumstances that the costs applications must be assessed.

1. The transfer application arises because the respondents have raised a defence under the DD Act. Addressing the defence would involve exercising federal judicial power. That is because the DD Act is a Commonwealth, or federal, law. The Tribunal cannot exercise federal judicial power: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 at [49]-[50] and [55]; Citta at [25]-[28] and [46].
2. Contemplating that, Parliament has conferred on the Tribunal a power to transfer a proceeding to the Magistrates Court. That is because the Court, unlike the Tribunal, may exercise federal jurisdiction: Judiciary Act 1903 (Cth), s 39.

1. The transfer power is found in the TASCAT Act, s 131. It provides:

131. Transfer to Magistrates Court of applications involving federal jurisdiction > > (1) If a person has standing to make an application to the Tribunal in the exercise of its original jurisdiction under section 72 or its review jurisdiction under section 74 , the application may, if the Tribunal orders under subsection (2) that proceedings on the application are to be transferred to the Magistrates Court, be determined by the Magistrates Court in accordance with this Part instead of the Tribunal. > > (2) If, following an application made to the Tribunal in the manner and form required under this Act for the kind of application concerned, the Tribunal considers that - > > (a) it does not have, or there is some doubt as to whether it has, jurisdiction to determine the application because its determination may involve the exercise of federal jurisdiction; and > > (b) the Tribunal would otherwise have had jurisdiction enabling it to determine the application - > > the Tribunal may order that proceedings on the application be transferred to the Magistrates Court. > > (3) Proceedings transferred to the Magistrates Court under subsection (2) are transferred proceedings. > > (4) If proceedings are transferred to the Magistrates Court under this Part - > > (a) the application made to the Tribunal will be taken to be duly made as an application to the Court; and > > (b) the proceedings may be continued and completed as if steps taken in the proceedings prior to the transfer had been taken in the Court. > > (5) The fee payable in respect of the application is the prescribed fee (if any) payable to the Tribunal under this Act. > > (6) A party to the transferred proceedings is not required to pay any fees in relation to the transfer of the proceedings to the Magistrates Court unless the Court determines that additional fees are payable under the Magistrates Court (Civil Division) Act 1992 because of a substantial alteration in the nature of the claims in the proceedings. > > (7) An order made by the Tribunal under subsection (2) may not be the subject of review or appeal under Part 10 . > > (8) The Magistrates Court may remit transferred proceedings to the Tribunal for determination if the Court is satisfied that the Tribunal has jurisdiction to determine the matter. > > (9) If the Magistrates Court remits transferred proceedings to the Tribunal, the Court may make the orders, if any, that it considers appropriate to facilitate the determination of the proceedings by the Tribunal. > > (10) The Tribunal must determine transferred proceedings that are remitted to it in accordance with any orders made by the Magistrates Court and must determine such proceedings in accordance with any such order.

1. The complainant submits that I should order that the proceedings be transferred under the TASCAT Act, s 131, and that this would not involve the Tribunal exercising judicial power.
2. The respondents oppose transfer. They say that it would be an impermissible exercise of federal judicial power, in part because the Joinder Ruling and the transfer order would bind the Magistrates Court. They said that, instead of the transferring the matter, I should dismiss it under the ADA, s 98(2)(b) on the basis that the Tribunal lacks jurisdiction to hear and determine it. In the alternative, they say that the transfer order should be confined to the inquiry as referred by the Commissioner; that is, without the joinder order or other steps taken in the Tribunal.

1. The starting point is to determine whether federal jurisdiction (i.e. federal judicial power) is raised. In Citta, the High Court said at [31] that where federal jurisdiction is asserted:

[T]he assertion operates to characterise the totality of the justiciable controversy and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn. [Citations omitted]

2. See also Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [7] and Moorgate Tobacco Company Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 477.
3. I accept the parties' contention that the ADA inquiry would involve an exercise of federal judicial power. So much is clear from the respondents' reliance on the same DD Act defence considered by the High Court in Citta at [4] and [46]. (Although the complainant and the building in question are the same as in Citta, the respondents are different and this is a separate proceeding.)
4. It follows that the Tribunal cannot hear and determine the matter.

Orders made before federal judicial power was raised

1. What, then, of the justiciable controversy before federal jurisdiction was asserted? Here, federal jurisdiction was asserted after the Joinder Ruling.
2. The complainant says that the Joinder Ruling was not an exercise of federal judicial power, federal jurisdiction not having yet been asserted.
3. I accept the complainant's submission. Federal jurisdiction was first raised when the respondents filed their statement of facts, issues, and contentions on 19 March 2025. The Joinder Ruling was made on 22 November 2024.
4. I find that federal jurisdiction did not arise until 19 March 2025. That federal jurisdiction does not arise until it is asserted is consistent with the observations of McLeish, Niall, and Walker JJA in Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; [2022] VSCA 226 (Thurin) at [64].
5. I accept the complainant's submission that, were transfer to be ordered, the joinder order would be transformed into a legally binding order not by the Tribunal, but by the TASCAT Act, s 131(4)(b). It follows that transferring the matter would not result in the Tribunal exercising judicial power (in respect of the joinder order). Put differently, the anterior joinder order is no impediment to the Tribunal subsequently making a transfer order.

The respondents' reliance on Qantas Airways Ltd v Lustig is misplaced

1. The respondents rely on Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253. At [109], Perry J observed that if the Victorian Civil and Administrative Tribunal (VCAT) lacked jurisdiction in a particular matter, the only powers that it could exercise were to dismiss the proceeding and to make others as to costs. However, that case involved a materially different legislative regime (the Victorian Civil and Administrative Tribunal Act 1993 (Vic) as it was at the relevant time) and, specifically, the power to strike out a proceeding.
2. Perry J observed that Parliament could have:

[L]egislated to confer power on the Tribunal to transfer part of all of proceedings instituted in the Tribunal, but over which it lacks jurisdiction, to another court...

3. The Tasmanian Parliament has done just that by inserting s 131 of the TASCAT Act. So much is clear from the provision's context and purpose, including the extrinsic materials to which the complainant referred me.
4. In any event, and more generally, Perry J's remarks were in obiter and disapproved of by an intermediate appellate court in Thurin at [153]-[164].
5. If I am wrong about the VCAT Act being materially different, I nonetheless should follow the decisions of other jurisdictions' intermediate appellate courts in considering cognate provisions unless I am satisfied that they are plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]. I am not so satisfied. With respect, I find the Court of Appeal's reasoning in Thurin compelling.

The transfer order itself is not an exercise of federal jurisdiction

1. I accept the respondents' submission that the TASCAT Act, s 131 involves more than an "administrative exercise that merely entails handing the file over", but that does not itself mean that the order is an exercise in federal jurisdiction. I also accept the respondent's submission that s 131 does not confer the Court with a discretion whether or not to accept the transfer, although it does allow the Court to remit transferred proceedings back to the Tribunal if the Court is satisfied that the Tribunal has jurisdiction, in which case the Tribunal must determine the proceedings in accordance with any orders made by the Court: s 131(8) and (10).
2. The complainant points out that the Tribunal has regularly made transfer orders. True as that is, and important as comity may be, that does not, as the respondents correctly point out, inform greatly the constructional task.
3. Section 131 must be interpreted in accordance with ordinary principles of statutory interpretation. The starting point is the text of s 131 whilst, at the same time, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 24 at [14].
4. I prefer the complainant's submission that s 131 confers on the Magistrates Court the power to hear a particular matter. Adopting the language of Bell P in Gaynor v Attorney-General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 (Gaynor) at [46], it enables the Court to hear a matter that it would otherwise be without jurisdiction to hear. As the complainant correctly points out, s 39(2) of the Judiciary Act 1903 (Cth) confers federal jurisdiction on the Magistrates Court. To that end, an order under s 131 does not exercise federal judicial power so much as it enables a Constitution Chapter III court to hear a matter and exercise that power.
5. That transferring a proceeding would not be an exercise of judicial power is consistent with two observations made by Leeming JA. The first, made in Gaynor at [138] (Basten JA agreeing) is that an administrative decision maker may still exercise some non-judicial or administrative function. The second, made in Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 (Wilson v Chan) at [31] (Macfarlan JA agreeing), is that determining costs would not exercise federal jurisdiction:

[B]ecause it's not adjudication in any sense on the merits of a claim which falls within federal jurisdiction... it's, in effect, dealing with a situation where the Court's time has been wasted by bringing to it a matter in which it has no jurisdiction. It's not resolving anything that is of a federal character; it's just dealing with its own time and effort.[2] > > ... > > Making an order for costs which extends to costs incurred in relation to non-jurisdictional issues, in case where there has not been a purported exercise of a non-existent jurisdiction, does not contravene the implied limitation on power identified in Burns v Corbett...

6. There is no relevant difference between s 131 of the TASCAT Act and the legislative provisions being considered by Leeming JA in Gaynor and Wilson v Chan. Nor is there any relevant difference between determining costs and ordering the transfer. Neither is an exercise of federal jurisdiction.

1. I accept the respondents' contention that the prohibition on state tribunals exercising federal judicial power extends beyond final orders quelling the dispute to interlocutory or procedural orders which have a substantial legal effect. Joinder falls into that category: Krongold Constructions (Aust) Pty Ltd (ACN 103 839 149) v Thurin [2023] VSCA 191; (2023) 414 ALR 1 (Krongold) at [92].
2. Krongold involved an order made by VCAT under Pt 3A of the VCAT Act joining a party to a residential building dispute. The Victorian Court of Appeal held that the order joining another party to the dispute was an impermissible exercise of judicial power.
3. However, in Krongold, federal jurisdiction under the Trade Practices Act 1974 (Cth) was asserted before VCAT made the joinder order. That is clear from an earlier decision of the Court of Appeal (differently constituted) arising from the same litigation: Thurin at [14]-[17].
4. As to the transfer itself, I accept the complainant's submission that it would not be an exercise in judicial power. That is notwithstanding the material differences between VCAT's power to refer a matter under the VCAT Act and this tribunal's power to transfer a matter under the TASCAT Act, s 113.

1. I am satisfied that an issue of federal judicial power has been raised. To use the language of Citta at [70], the DD Act defence is "colourable". I am also satisfied that I have jurisdiction to make the transfer order. It follows that I should transfer the proceedings to the Magistrates Court.

1. The complainant seeks his costs of his successful joinder application and in respect of his submissions in support of the transfer application.
2. The respondents oppose the costs applications on two bases. The first is that the Tribunal does not have the power to order costs, in part because it would involve an exercise of federal judicial power. The second is that costs are not justified in the circumstances.

1. The starting point is s 120 of the TASCAT Act. Sub-sections (1) and (2) provide:

120. Costs of parties > > (1) Unless otherwise specified in this Act, a relevant Act, regulations under a relevant Act or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal. > > (2) Unless otherwise specified in a relevant Act or regulations under a relevant Act, the Tribunal may make an order for the payment by a party to proceedings of all or any of the costs of another party to the proceedings, or of a person required to appear before the Tribunal or to produce evidentiary material, if the Tribunal considers that it is appropriate to do so after taking into account - > > (a) the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings to a minimum insofar as is just and appropriate; and > > (b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and > > (c) any provision made by the Tribunal rules or the regulations under a relevant Act; and > > (d) any other matter considered relevant by the Tribunal.

2. The parties' conduct during the proceedings is relevant to the exercise of the discretion: Maree Summers v State of Tasmania [2020] TASADT 5. So too is any Calderbank offer putting a party on notice that costs would be sought: Hindle v Elliott (No 2) [2024] TASCAT 114 at [26]. The matters considered must be connected to the proceeding. Financial imbalance between the parties is not, by the fact itself, relevant: State of Tasmania v Anti-Discrimination Tribunal (2008) 17 Tas R 227; [2008] TASSC 23 at [25]. Generally speaking, costs are designed to compensate, not punish.
3. A costs order under s 120 may only be made against a party. As the second respondent did not become a party until the Joinder Ruling, I doubt that it can be ordered to pay the complainant's costs in respect of that application. But that is not so with respect to costs of the transfer application, that application being opposed by both respondents. However, it is unnecessary to decide the point given my conclusions as to the application's disposition.
4. The respondents submit that it would be unfair to order it to pay costs when the complainant may be ultimately unsuccessful in the proceedings, and that this factor should be given "significant weight". I accept that it should be given some weight. There may be some unfairness in requiring the respondent to pay the costs of an interlocutory step if the complainant later fails to prove unlawful discrimination contrary to the ADA. However, this is an issue that commonly arises in applications for the costs of interlocutory applications. It is, in a way, akin to be ordered to pay 'costs thrown away' by an adjournment. It does not detract from s 120(1)'s presumption that each party bear their own costs, and sub-s (2)'s command that costs may be ordered "if the Tribunal considers it appropriate to do so".

The Tribunal may order costs notwithstanding that transfer need not be applied for

1. The respondents also contend that the Tribunal's duty to determine its own jurisdiction "is not amenable to application by one or more parties". It would follow that there is no proper application to determine costs.
2. I reject that submission. It is true that the Tribunal is required to determine its own jurisdiction irrespective of the parties' positions. But that does not mean that a party may not apply for transfer under s 131. Rather, it means that the Tribunal must order transfer if the criteria in sub-s (2) are satisfied, irrespective of the parties' positions. The Tribunal is to "act with as little formality and technicality as possible" and "be flexible in the way in which [it] conducts its business", and may determine its own practice and procedure "to the extent that the practice or procedure ... is not prescribed": ss 10(1)(f) and (g) and 83(4).
3. I am satisfied that s 131 is amenable to, but does not require, an application. Moreover, the power to order costs in s 120 allows costs in respect of "all of any of the costs ... of the proceedings". That is, costs may be ordered in respect of part of the proceedings.

The Tribunal may order costs notwithstanding federal jurisdiction

1. For reasons that I have endeavoured to explain in respect of the transfer application, I am satisfied that the Tribunal has jurisdiction to make orders for costs with respect to each application.
2. Leeming JA's observations in Wilson v Chan satisfies me that the Tribunal has the power to determine the costs applications. Any costs orders would not bind the Magistrates Court. Instead, they would be in respect of non-jurisdictional issues disposed of prior to, or contemporaneously with, the transfer. They would be in respect of steps taken in this Tribunal (which cannot exercise federal power), not the Magistrates Court (which can).

Should the first respondent pay the complainant's costs of the joinder application?

1. Having regard to my findings of fact, I am not satisfied that the complainant has rebutted the presumption that each party is to bear their own costs. The complexity and lack of uncertainty associated with and giving rise to the joinder application cannot be entirely sheeted home to the first respondent.
2. While the opposition to joinder, on my reading of the Joinder Reasons, was not particularly strong, I do not accept the complainant's submission that there was "little or no merit" to it. I accept the first respondent's submission that there was a genuine jurisdictional aspect to the opposition arising from the second respondent becoming the registered proprietor of the property after the complaint was made. That is notwithstanding the complainant's Calderbank offer.
3. I accept that the first respondent's opposition increased the complainant's costs and delayed the progression of the ADA inquiry, but this does not itself justify an order for costs. Any unsuccessful argument or application in litigation will ordinarily increase costs and cause delay. Hindsight reasoning should be avoided. Cost and delay are relevant, but the fact of each is not dispositive. They must be assessed against other matters. It is important to remember that, unlike in most civil litigation, Parliament has created a statutory presumption that each party bear their own costs.
4. The application must be refused.

Should the respondents pay the complainant's costs of the transfer application?

1. I have reached a different conclusion in respect of the costs of the transfer application.
2. I reject the complainant's submission that the respondents conceded that the Tribunal had the power to transfer this matter (as opposed to matters generally) and later "resiled" from that concession. That is not a fair reading of the respondents' statement of facts, issues, and contentions.
3. However, I am satisfied that the respondents, adopting the language of the complainant's submissions:

[W]ere, from the filing of the complaint, fully aware of the availability of a federal defence because it had been raised in all but identical proceedings considered by the High Court in Citta... > > The complaint concerns the same premises, the same complainant, the same disability and the same proposition that the provision of stairs at the northwest corner of Parliament Square is unlawful disability discrimination contrary to the [ADA].

4. That is notwithstanding the respondents' point, which I accept, that the parties had earlier agreed that "[w]hether federal jurisdiction is engaged will depend on the pleadings", which I take to mean the parties' respective statements of facts, issues, and contentions. While the late raising of federal power has delayed the proceedings, that cannot be attributed solely to the respondents. The delay is the product of the parties' agreement, contributed to by the first respondent's opposition to joinder, and the several arguments advanced in opposition to transfer. This has disadvantaged the complainant, who seeks the installation of improved wheelchair access at building.
5. I place more weight on my conclusion that the respondents' opposition to transfer was against the weight of intermediate appellate court authority. It was relatively weak. It did not "keep costs to a minimum insofar as is just and appropriate".
6. I accept the respondents' submission (made at an earlier directions hearing) that they are entitled to raise any particular point that arises. They should not be criticised for raising jurisdictional or other issues. However, by s 120 of the TASCAT Act, Parliament has determined that there may be costs consequences following an application of the sub-s (2) factors.
7. Given that transfer was a distinct issue, I do not consider there to be any unfairness in ordering the respondents to compensate in the complainant even if the complainant ultimately fails to prove unlawful discrimination. The nature and manner of the respondents' approach unduly complicated the matter, which is relevant to s 120(2)(a).
8. I am satisfied that it is appropriate to order the respondents to pay the complainant's costs in respect of the transfer application.

1. Neither party has asked to deviate from the statutory default that costs be assessed at 75% of the scale of costs under the Supreme Court Civil Procedure Act 1932: Tasmanian Civil and Administrative Tribunal Rules 2021, r 18.

1. I order:
   • The proceedings be transferred to the Magistrates Court.
   • The Principal Registrar forward the Tribunal's file to the Administrator of the Magistrates Court with an order in these terms and a copy of these reasons for determination.
   • The complainant's application for the costs of the application to join the second respondent be refused.
   • The respondents pay the costs of the complainant's application to transfer the proceedings to the Magistrates Court.

[1] Calderbank v Calderbank [1975] 3 All ER 333.

[2] This was a proposition put by Leeming JA to the Solicitor-General for New South Wales in the course of argument, as quoted in his Honour's reasons.