Hallmann v Southern Cross University (No 3)

File Number(s): 2021/00363087

Publication restriction: Nil

Reasons for the DecIsion

1. On 18 December 2025, the Tribunal handed down its decision in Hallmann v Southern Cross University (No 2) [2025] NSWCATAD 330 dismissing all the Applicant’s claims.

2. The matter was referred to the Tribunal on 17 December 2021 by the President of New South Wales Anti-discrimination Board (ADNSW). The accepted grounds of complaint that were referred to the Tribunal were:

3. that between 18 March 2020 and 11 August 2021 the Respondent either indirectly or directly discriminated against the Applicant on the basis of his disability by failing to accommodate his disability when it failed to purchase him an ergonomic chair

4. the Respondent then indirectly discriminated against the Applicant by requiring him to comply with the Respondent’s Employees with Disabilities Policy with which the Applicant was unable to comply because of his disability, and

5. the Respondent then victimised the Applicant by subjecting him to various detriments because he allegedly made a complaint to the Vice-Chancellor on 20 June 2020 that he had been the victim of discrimination.

6. These reasons deal with an application filed 15 January 2026 by the successful Respondent (the University) against the Applicant for an order pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (‘the CAT Act’) that Geoffrey Peter Hallmann pay its costs in relation to the last 12 months of the proceedings and costs in relation to that application. Despite directions having been made about the filing of material in resistance to the application, the Applicant did not file any.

7. The Applicant’s original complaint was filed with ADNSW on 11 August 2021. The matters referred to the Tribunal were the subject of a hearing conducted over four days in Lismore, two of which, on 30 and 31 October 2024, the Applicant attended, and the latter two, on 8 and 9 September 2025, he chose not to attend.

8. The University asks for the costs for the 12-month period in which there was preparation for, and attendance at, the hearing. It says that this approach reflects a commitment to fairness and reasonableness, ensuring that the costs sought are confined to those directly attributable to the substantive proceedings. It says this will “…focus the Tribunal’s attention on the discrete period in which the majority of costs were necessarily incurred.”

9. The University contends that between September 2024 and September 2025, the University incurred $107,504.63 (including GST) in solicitors’ fees and $22,137.5 (including GST) in counsel’s fees, being $129,642.13 (including GST) in defending the application, and seeks those costs on a party and party basis.

10. In his affidavit of 10 April 2025, the Applicant attested to being a solicitor, and swore that in that role he had a history of providing advice and representation on discrimination in the context of both NSW and Commonwealth disability discrimination law in the educational context.

11. At the time of the final hearing, the Applicant was a practising solicitor in a law firm he operates and had a practicing certificate entitling him to practice. The Tribunal considers that he will have understood how to properly conduct a proceeding in this Tribunal. He also has significant impairments. He requested disability support in a form dated 18 August 2025 in which he specified that he suffered, amongst other things, Chronic Fatigue Syndrome with Fibromyalgia, Postural Orthostatic Tachycardia Syndrome, neurocognitive dysfunction, pressure on the brain caused by occlusion of both internal jugular veins, hypogonadism, severe sleep apnoea/sleep onset issues, severe respiratory impairment and severe headaches. That he has those functional impairments is significant, in some respects but not all, to understanding his conduct of the proceeding.

12. Section 60 of the CAT Act provides:

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.

10. That is, the Tribunal may award costs only if it is satisfied that there are special circumstances that warrant the awarding of costs.

11. Even if there are special circumstances that warrant the awarding of costs it remains to be decided whether the Tribunal should exercise its discretion to award costs and, if so, what costs order should be made.

12. The University submits that special circumstances do not have to be exceptional or extraordinary, but rather the question is whether the circumstances are out of the ordinary.

Whether a hearing should be dispensed with

13. Sections 50(2) to (4) of the CAT Act provide:

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

14. In this case neither party opposed deciding the application for costs on the papers.

15. In our view it is appropriate that a hearing be dispensed with under s 50(2) of the CAT Act.

Clarification of the matters for determination by the Tribunal

16. As we observed in our reasons in the substantive decision, the Applicant’s Points of Claim included a large number of matters which were demonstrably outside of the scope of the original complaint matters referred to the Tribunal. The Points of Claim document was 117 pages long, largely lacking focus on the factual and legal issues to be determined, and made numerous claims which were outside those made in the original complaint and those referred to this Tribunal. It contained a large number of allegations which were not relevant to the complaint as referred including, but not limited to, the Applicant’s opinions about the conduct of the University’s staff and its workers’ compensation insurer in relation to his workers’ compensation claim and the response of the University to that claim. It was, and remains, impossible to identify the issues to be determined by reference to the Applicant’s Points of Claim.

17. Further the claims made in the Points of Claim are articulated in the form of a narrative which, in large part, is a recitation of the ‘story’ that he wished to tell about his treatment by the Respondent. It often lacked focus on what was material and lapsed into setting out matters of evidence. It made claims for things that demonstrably were not accepted by ADNSW, including claims of bullying, harassment, and vilification. It does not clearly set out what is relied upon as establishing the basis for the accepted claims. It sets out a long list of things he wishes to raise concerning the conduct of the Respondent from July 2020 until April 2022 even though the complaint was accepted on the basis of events that occurred over the period from 18 March 2020 to 11 August 2021 and only in relation to the three specific grounds set out earlier in these reasons.

18. The Applicant filed a large number of statements and some 2000 pages of documents in various folders. Those statements and other documents also did not focus solely on the issues referred to this Tribunal.

19. The difficulty in identifying a properly articulated factual and legal claim can also be gleaned from the fact that in the Points of Defence, which set out the University’s position in relation to the Applicant’s claim as the University understood it to be, the University noted the claims were unclear and identified what it thought were the allegations it had to answer and concluded broadly that the Applicant was alleging that the University:

20. directly discriminated against him by failing to accommodate his disability because it failed to purchase him an ergonomic chair in June 2020;

21. indirectly discriminated against him by requiring him to comply with a requirement or condition which the Applicant was unable to comply with because of his disability; and

22. victimised the Applicant by subjecting him to various detriments because he allegedly made a complaint to the University’s Vice-Chancellor on 20 June 2020.

23. We accept that the University struggled to identify whether direct and/or indirect discrimination was being alleged, and specifically which kind of allegation applied to which conduct.

24. The Applicant elected not to attend the second part of the hearing in September 2025. The hearing proceeded in his absence, with the Tribunal tendering into evidence the statements of himself and his witnesses that he had previously identified as being those on which he relied. Some of what was within that material was successfully objected to by the Respondent, based on submissions filed on 17 March 2025, well before the hearing. The statements that were admitted, subject to objections, included the statements of the Applicant dated 2 February 2021, 4 November 2021, 26 May 2022, 11 September 2022, 21 January 2023 and 19 December 2023.

25. The material filed for the Applicant often referenced, without exhibiting, documents to which the statements referred. That material was also unfocussed and argumentative, and was not consistently referenced to contemporaneous objective evidence. Fortunately, the critical documents which evidenced the communication that relevantly passed between the parties was in evidence.

26. In respect of the hearing in Lismore, which was set down for 8, 9 and 10 September 2025 but which concluded on the evening of 9 September 2025, it had been made clear to the parties that they were to manage the matter so that it was concluded in every respect within those three days. That much was emphasised to the parties during a directions hearing of the matter on 30 June 2025 and reflected in the orders made on that date. Despite these longstanding directions to the parties, the Applicant chose not to appear at the hearing.

Procedural history in the Tribunal

24. The matter has had a long procedural history in the Tribunal, most of which was touched on in the reasons for the decision in the substantive matter. In May 2022 the Applicant was provided with a large body of internal records and correspondence from the Respondent through a Notice to Produce in the course of other proceedings before the NSW Personal Injury Commission (PIC). In September 2022, the Applicant was again provided with another body of those documents after requesting them through a summons in the current proceedings before the Tribunal.

25. In February 2023, after multiple failures to comply with deadlines and multiple extensions of time, the Applicant filed his current Points of Claim, as well as over 2000 pages of ‘supporting material’ which included large portions of summonsed documents.

26. On 31 October 2024 we decided, after the first two days of hearing, to allow the Applicant three months to file an application to amend his claim. That order was made directly in response to the Applicant’s request, his stated needs in relation to his medical conditions, and the time he said he needed to finalise and submit his application.

27. After failing to comply with that order, at a directions hearing on 1 April 2025 at which he appeared, the Applicant was given further accommodation and granted an extension to file any application and supporting material by 15 April 2025. He eventually filed the application a week after 15 April 2025. That application was considered carefully and refused, and written reasons were published. That left the matters to be determined as being those which we have identified as having been referred here on 17 December 2021 by ADNSW.

28. On 1 April 2025 the Tribunal also made orders that the proceedings were to be listed for a further direction hearing on 30 June 2025 and that the matter was listed for final hearing at Lismore in person for 3 days commencing on 8 September 2025. It was further ordered, following direct consultation with and the approval of the Applicant, that by way of accommodation the Applicant had sought be made for his medical conditions, that the hearing would begin on 8 September 2025 and would be conducted each day commencing 9.30am until 11.30am and then 1.30pm until 4.00pm each day, unless otherwise ordered at the hearing.

29. The Respondent was ordered to file and serve a trial plan for the hearing (a schedule proposing how the hearing would be structured including the timetable for witnesses) by 8 August 2025 which was to ensure that the matter would proceed and be concluded in those 3 days. The Respondent filed such a plan within time, which contemplated in person cross-examination of the Applicant. The Applicant was to file and serve his response to that trial plan by 15 August 2025. He did not file any document or communicate in any way that he had any issue with the plan prepared by the Respondent.

30. The final hearing of the matter was set down for 8, 9 and 10 September 2025 and was heard in Lismore, where the Respondent conducts the University and some of its witnesses reside. When the matter was heard, the Applicant lived on Hope Island, just north of the most northern part of the Gold Coast. Material filed by the Applicant just before the hearing demonstrated that he had been regularly travelling some distance to Burleigh Waters for various forms of medical treatment, albeit that he had very recently started attending treatment at a location nearer to his home.

31. On the last working day before the hearing was to commence, namely Friday 5 September 2025, the Applicant filed a Request for permission to attend NCAT hearing by telephone or video and not attend in person. This application was opposed by the Respondent. In dismissing that application for permission to be allowed to attend the hearing by teleconference and not attend in person, the Tribunal’s decision sent to the parties noted, inter alia, that the material filed by the Applicant demonstrated that he has recently regularly travelled to Burleigh Waters for various forms of treatment and that his health conditions are of long standing. It further noted that the Applicant has a history of summarily disconnecting from hearings where he has been allowed to appear by audiovisual link (AVL).

32. The parties were advised that the matter would proceed on the Monday in accordance with the existing orders in place, which required the Applicant to attend in person for the hearing and be cross-examined and that otherwise the matter would proceed in accordance with the trial plan, which was filed by the Respondent, and which had not been identified as controversial by the Applicant. The parties were also advised that any applications of any kind which either party wished to bring may, if appropriate, be dealt with during the course of the hearing.

33. As noted earlier, the Applicant elected not to attend the hearing, which proceeded in his absence. The Tribunal tendered into evidence the statements of the Applicant and his witnesses that he had previously identified as those on which he relied. Some of what was within that material was successfully objected to by the Respondent based on submissions filed 17 March 2025, well before the hearing.

The findings made adversely to the Applicant on the discrimination claims

34. The matter essentially involved a claim that the University, in various ways, discriminated against the Applicant by failing to accommodate his disability in not purchasing him an ergonomic chair in June 2020.

35. We found that it was possible, though not certain, that Mr Hallmann was claiming direct discrimination as part of his complaint. For a claim of direct discrimination to succeed he would have needed to show that the refusal to provide him with a special ergonomic chair, or any of the treatment to which he states that he was subjected and which he claims adversely affected him, was conduct engaged in because of his disability. There was no evidence which established that any of the events that occurred, and about which he complained, was the result of such discrimination.

36. We found that the Applicant had not established that he was treated less favourably on the ground of his disability and that, even if he had been treated in the way he insisted he should have been, that it is unlikely to have resulted in the Applicant being provided with an ergonomic chair that the Applicant found suitable earlier than when he was provided with one on 11 September 2020.

37. We found that Mr Hallmann had also not established the central requirement to prove his claim of indirect discrimination. That is, he had not proved that he had to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply.

38. The requirement that we found that the Applicant was asked to comply with was the requirement to provide the University with documentary evidence concerning his disability and the functional limitations that it involves. This was, we held, a reasonable requirement because the University believed it needed that information to ensure it purchased equipment suitable to the Applicant’s particular needs and to accommodate the Applicant’s disability, and that belief had a reasonable basis.

Findings in relation to the four alleged acts of victimisation

39. We dismissed each of the Applicant’s four claims of victimisation:

40. the first alleged act of victimisation which involved Mr Hallmann being warned about signing himself off as a doctoral candidate when he was no longer a doctoral candidate and this warning being in retaliation for him making what he calls the 20 June 2020 complaint to the Vice-Chancellor

41. the second alleged act of victimisation which involved conduct related to the first allegation about signing himself off as a doctoral candidate but this time it related to the levelling by the University of a misconduct charge or warning to him in September 2020 arising out of him using the expression “post doc” in some of his researcher profile material and, thus, misrepresenting himself as a successful PhD graduate who was employed by the University. Mr Hallmann alleges that bringing this change or warning was in retaliation for him making what he calls his 20 June 2020 complaint to the Vice-Chancellor

42. the third alleged act of victimisation involving Mr Pearce, the University’s Manager of Industrial Relations. The Applicant alleged that Mr Pearce, in reviewing the decision of Ms Farquhar to partially uphold the allegation in relation to his doctorate candidacy, was not an independent decision maker and did not act in good faith in conducting the review and making findings adverse to him about him misrepresenting his qualifications, and

43. the fourth alleged act of victimisation, which related to an allegation that he had misled the University’s workers’ compensation insurer, and the University conducting an investigation into whether he had committed monetary fraud in relation to receiving workers’ compensation payments to which he was not entitled or in respect of which he had already been paid by the University a fee for his services. He alleged in the original complaint that the University had suspended him and were conducting an investigation into his dealings with the insurer but that he had refused to participate in the investigation.

44. We found that there was no credible evidence that Ms Farquhar, Mr Pearce, or anyone who was engaged in any of these events for the University, subjected Mr Hallmann to any detriment as a result of him having petitioned the Vice-Chancellor for assistance. We found that they were genuinely motivated and did not engage in victimisation of him.

45. We found that there was no evidence, either direct or circumstantial, that Ms Watson or anyone else who engaged in any of these events for the University subjected Mr Hallmann to any detriment as a result of him petitioning the Vice-Chancellor for assistance. We found that they were genuinely motivated and did not engage in victimisation of him in acting as they did.

46. We found that the University determined that the allegations were sufficiently serious to warrant an investigation. The decision was based on serious and genuine concerns that the allegation, if substantiated, amounted to a serious breach of the University’s Code of Conduct.

47. We found that there was no evidence, either direct or circumstantial, that the University subjected him to any detriment in relation to the engagement of the external investigator to investigate the allegations as a result of him having petitioned the Vice-Chancellor for assistance and that the University was genuinely motivated by concerns as to whether there had been a serious breach of the University’s Code of Conduct and did not engage in victimisation of him in acting as they did, either in response to his email to the Vice-Chancellor or for any other reason.

The basis for the application for costs and consideration of it

44. The basis for the application for costs is that there was repeated delay in bringing on the hearing of the matter because of Mr Hallmann’s continual requests for extensions of time and failure to comply with tribunal orders.

45. The University submits that:

46. the matter was initially listed for a final hearing before the Tribunal over two days on 30 and 31 October 2024 and was concluded over 2 days almost 11 months later in September 2025

47. the hearing in October 2024 was not able to proceed because on the first day of hearing, without notice, Mr Hallmann sought to amend his claim to include matters that were outside the scope of the referred matters, and

48. it was unnecessarily disadvantaged because:

“(a) Mr Hallmann repeatedly filed voluminous and unfocused material, including a 117-page Points of Claim and over 2000 pages of supporting documents, much of which was irrelevant or outside the scope of the referred complaint.

(b) The matter involved multiple hearings and significant accommodation of Mr Hallmann’s requests for extensions and procedural adjustments.

(c) Mr Hallmann routinely failed to comply with directions, without reasonable explanation, and failed to attend the hearing of the matter.

(d) The University incurred significant legal costs because of Mr Hallmann’s conduct, including costs associated with responding to unfocussed and irrelevant material, and preparing for a hearing which Mr Hallmann did not attend.

(e) Mr Halllman’s conduct has resulted in unnecessary disadvantage, delay and expense to the University.”

46. In relation to these submissions, we find:

47. most of the hearing on 30 and 31 October 2024 was, in fact, spent with the parties seeking to negotiate an outcome rather than have it heard and determined

48. although the Applicant did, in the hearing in October 2024, open a case that raised issues that were outside the scope of the matters referred in the President’s report, this did not stop the matter proceeding. It did proceed and, after two days were spent, much of which was in negotiation, it was made clear that the Applicant’s claims would need to be formally articulated. When he later did articulate the claims, in April 2025, and made an application for leave to amend, that leave was refused. No time was wasted on either an application for leave to amend or consideration of the merits of such an application during the first two days of hearing, and

49. while we accept that the University engaged in responding to the Applicant’s claims, including the attempt to amend them, the claim that this unreasonably disadvantaged the Respondent is not accepted. The application to amend was refused and only the matters originally referred in the President’s report were permitted. The University sensibly saw that it was not required to respond to the 117-page Points of Claim and over 2000 pages of supporting documents in detail but chose to conduct its case on a narrower basis, quite properly ignoring irrelevant or unnecessary controversies.

50. In its consideration of an application for costs following an appeal against a guardianship order in YKD v YKE (No 2) [2025] NSWCATAP 101, the Appeal Panel relevantly stated:

Relevant legal principles

8. The principles governing YKE’s costs application are not in doubt and require only brief reiteration. In Cripps v G & M Dawson [2006] NSWCA 81 it was accepted in relation to the term “special circumstances” that “It suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of serious unfairness is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration”. In CEU v University of Technology Sydney [2017] NSWCA 280, at [4], the Court of Appeal also accepted that “To establish special circumstances, it is sufficient that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional”. The Tribunal has consistently approached “special circumstances” on that basis.

9. With respect to the expression “no tenable basis in fact or law” in s 60(3)(c) of the CAT Act, the dismissal of YKD’s appeal, and the Appeal Panel’s reasons for it, suggest that YKD’s challenges to the decision at first instance lacked a tenable basis in fact or law.

10. A complaint is said to be lacking in substance when it is demonstrated that there exists no factual basis for the allegation or that the complaint is not reasonably arguable (Langley v Niland & Anor [1981] 2 NSWLR 104).

48. We accept that Mr Halllman’s conduct did result in delay and expense to the University. However, we are not satisfied that this equates to its costs incurred in the last year of the proceeding. There is nothing that identifies what the costs were that were thrown away in preparing for a hearing at which Mr Hallmann did not attend. That is, even though the hearing proceeded without the Applicant, the hearing traversed all of the relevant matters that would have been addressed if he had appeared, save for the Respondent’s cross-examination of the Applicant and the Applicant’s oral submissions. The Respondent made its oral submissions and, in our view, the hearing was shortened as a result of the Applicant’s non-attendance.

49. We also accept that Mr Hallmann did, routinely, fail to comply with directions, and this caused inconvenience for the Respondent. However, we are not satisfied that it was without reasonable explanation. He attributed his failure to comply with directions to his impairments which, he stated, caused him to be incapacitated from time to time. Without establishing the detail of all of them, the Tribunal accepted that the Applicant did experience a range of impairments - a contention that the Respondent also accepted - and that these conditions could impact his capacity to run his case. Moreover, most of the incidences of non-compliance occurred before September 2024 – that is, before the final year leading up to the final hearing – the period in respect of which the costs are sought.

50. The University submits that Mr Hallmann has been responsible for prolonging unreasonably the time taken to complete the proceeding and it has been on foot for 4 years since being referred to the Tribunal. It is a fact that the matter first came to the Tribunal in 2021 and the substantive matters were not disposed of until 2025. There were, however, many reasons for why the matter took so long to determine. Most of the delay, as we have identified above, occurred in the earlier years of its progress.

51. The University also submits that it was put to great expense over a prolonged period defending a claim that was both misconceived and lacking in substance. We have not found that the original claim was either misconceived or lacking in substance. Rather, there were valid questions of law and evidence to be decided, and these matters were decided against the Applicant after considering the relevant law and the admitted evidence. We note that the Respondent did not make an application for summary dismissal over the more than four years the matter was before the Tribunal.

52. The University also submits that while the Applicant was self-represented in these proceedings, he is an Australian Legal Practitioner who holds an unrestricted principal level practicing certificate in Queensland for the ME Legal Group Pty Ltd. It also points to the fact that between May 2022 and July 2025 the Respondent attempted to settle the matter on a ‘without prejudice’ basis – that is, without admission of liability and that Mr Hallmann chose to decline the various offers which were made, including a Calderbank offer to resolve the discrimination complaint only in full and final settlement for $15,000 made on 17 April 2023.

53. In relation to the University’s submission regarding the Applicant’s status as a legal practitioner and implications for this decision on whether to award costs, the Tribunal notes s 36 of the CAT Act which sets out the guiding principle to be applied to practice and procedure in matters before the Tribunal and related provisions:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

54. In giving effect to the guiding principle, s 36(3) places the same duty on parties to proceedings as on Australian legal practitioners representing parties. That is, an unrepresented party and a legal representative representing a party are under the same obligation to comply with directions and orders of the Tribunal. While it is of passing interest that the Applicant is a solicitor with a practicing certificate, in this matter he was a self-represented litigant and his status as a solicitor neither increased nor decreased his obligations under this provision. We do not consider his status as a practicing solicitor to be directly relevant to the question of whether or not to award costs.

55. The Respondent submitted that “While the authorities also establish that there is a ‘tolerance for self-represented litigants who do not understand legal concepts’ that does not apply here.” The Respondent then draws the Tribunal’s attention to cases which it says “accords with” the present case.

56. The first case, Robinson v Commissioner of Police, NSW Police [2025] NSWCATAD 248, is a matter in which costs were sought following an unsuccessful application alleging disability discrimination in the failure to employ a person as a police officer. The Applicant was represented by counsel.

57. In that matter Senior Member Tibbey held that the key factors in the decision to award a ‘nominal’ contribution to the Respondent’s costs included substantial addition effort and expense to which the Respondent was put by appearing at lengthy interlocutory proceedings to address the wide scope of the summonses and several directions hearings, at which the Applicant did not make significant argument or submissions as to the utility of the material produced.

58. There was also a Calderbank offer made by the Respondent in that matter, which was held not, in the circumstances of the case and by itself, sufficient to “…warrant a departure from the “usual order” as to costs”.

59. There were also delays by the Applicant in complying with directions to file submissions, and multiple extensions of time in which to comply. However, in that matter the delay was caused by unavailability of counsel due to ill-health and personal circumstances, and alternative arrangements were not made by counsel or the Applicant, who did not have a disability, to address the issue.

60. The second case which the Respondent says is analogous to this matter is 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education; Hi 5 Childcare Centre Pty Limited v Secretary, Department of Education; Apple Bear Pty Limited v Secretary, Department of Education; GRR v Secretary, Department of Education (No 2) [2025] NSWCATAD 308 (‘3 Bears Childcare Centre Pty Limited v Secretary, Department of Education’). There are some similarities in that there was non-attendance by the Applicant at a hearing in person. However, the Tribunal also found that in that matter the Respondent was disadvantaged in multiple ways including by costs having been ‘thrown away’ by the Applicant’s actions or inactions. This is set out at [52]:

6. We further accept the respondent’s submission that the applicants’ failure to attend the hearing on the final day of the hearing, without excuse, resulted in the dismissal under s 55(1)(c) and exposed the respondent to an application for reinstatement of the proceedings, thereby depriving the respondent of the opportunity to resolve the dispute on the merits. The respondent contends that this conduct disadvantaged the respondent, exposes the respondent to further expense and may prolong the time taken to complete the proceedings because of the risk of reinstatement.

7. The applicants have repeatedly referred to proposed applications for reinstatement in email correspondence with the Tribunal and the respondent, despite the fact that no formal application has been made, the period for an application expired over four months ago (given the provisions of r 36 of the Civil and Administrative Tribunal Rules 2014 (NSW) which provides that such applications must be made within 7 days after the Tribunal dismissed the proceedings), no application for an extension of time has been made and GRR has made applications to deregister Hi 5 and 3 Bears. On the one hand, the risk of reinstatement is theoretical and now somewhat remote. However, we accept there is a risk the respondent could be exposed to the cost of defending an application for an extension of time and, if successful, an application for reinstatement. This is a significant disadvantage to the respondent, who was ready to proceed with the substantive hearing on 7 July 2025. In our view, this gives added weight to the contention that there are special circumstances warranting making a costs order in relation to the costs “thrown away” from 7 to 9 July 2025.

61. In our matter the documentation for the hearing had been filed, the Applicant chose not to appear, the matter proceeded in his absence, the hearing was finalised in two rather than the scheduled three days of hearing, the decision was reserved and later handed down with written reasons. That is, the factors referred to in the extract set out above as matters which influenced the Tribunal’s decision to award costs in 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education were not present in this matter. In our view, the different facts in that case means that the decision turned on different matters to this case and is not analogous.

62. The Tribunal also notes that neither Robinson v Commissioner of Police, NSW Police [2025] NSWCATAD 248 nor 3 Bears Childcare Centre Pty Limited v Secretary, Department of Education involved a self-represented applicant with disability arising from complex medical conditions, the exacerbations of which were the basis on which the Applicant relied to explain his failure or delay to comply with directions.

63. In relation to the submission by the Respondent that we should draw an inference from the Applicant’s rejection of the Calderbank offer, we find that it is impossible to decide whether the rejection of that offer was unreasonable at the time. It is not clear precisely which of the numerous claims made by the Applicant up to that time that offer was intended to settle. However, it is clear from the Respondent’s submission that the offer would not have resolved all of the claims he had brought. That is, among the claims he brought were those which were not the “discrimination complaint”. In these circumstances the Tribunal is not inclined to take any inference from the offer by the Respondent and refusal by the Applicant.

Conclusion

64. In our view this is not an appropriate case for an order for the costs sought to be made, nor it would follow, the costs of this application. The application is dismissed.

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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