Kenworthy v Heartbeat Centre Coffs Harbour Limited [2025] NSWCATAD 133

NCAT Administrative and Equal Opportunity|2025-06-12|Before: Emeritus Prof P, Foreman AM

These proceedings are not referred to in the Civil and Administrative Tribunal Act Schedule 3, Part 5, clause 13 exceptions for costs not to be awarded in Administrative and Equal Opportunity Division proceedings. Costs may therefore be considered and awarded if a determination is made under section 60(2) of the Civil and Administrative Tribunal Act.
The respondent specifically relies upon section 36(1) of the Civil And Administrative Tribunal Act which is: "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." The respondent states that it has sought to resolve the proceedings in the Tribunal and to engage with the applicant. The respondent states that the applicant has been unresponsive to invitations to resolve the matter on commercial grounds.

(1) The applicant's conduct has caused the respondent disadvantage associated with the costs of preparing material borne out of the applicant's refusal to engage in any form of resolution discussions, filing inappropriate material, attempting to include allegations that are statute barred and/or not previously before the Anti-Discrimination Board.

(2) The applicant has been responsible for unreasonably prolonging proceedings due to the repeated failure to comply with orders and have the Tribunal delay proceedings.

(3) The claim by the applicant has no reasonable basis in fact or at law as highlighted by the material filed on behalf of the respondent.

(4) The proceedings are frivolous, vexatious, and misconceived as highlighted in the material filed on behalf of the respondent.

(5) The applicant has by engaging in the conduct referred to in the previous subparagraphs, failed to act in a manner that is consistent with the guiding principle in section 36(1) of the Civil and Administrative Tribunal Act.

The matters relied upon constitute special circumstances. The claim by the applicant has no reasonable basis in fact or at law found by the Tribunal.
The proceedings are frivolous, vexatious, and misconceived as found by the Tribunal in dismissing the application. The failure of the applicant to engage in dispute resolution and accept the offers made for resolution of the dispute is conduct which has caused disadvantage to the respondent.
Additionally, it is correct to state that the applicant has not acted in accordance with the guiding principle in section 36(1) of the Civil and Administrative Tribunal Act.
The exercise of the discretion under section 60(2) requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]; Khalaf v Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35].
The Tribunal considers that the circumstances are sufficient to amount to special circumstances and justify or warrant the departure from the rule in section 60(1). The respondent accordingly should receive an order in its favour under section 60 of the Civil and Administrative Tribunal Act.

(1) The complaint of unlawful disability discrimination is dismissed.

(2) The applicant pay the respondent's costs of and incidental to the application as agreed or assessed.

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.

Administrative Tribunal Act 2013

Health and Safety Act 2011

Profession Uniform Law Application Act 2014

Where an act was done for more than one reason, an applicant will be successful in relation to a claim of unlawful discrimination if he can demonstrate that one of the reasons consists of unlawful discrimination. That is so even where the unlawful discrimination reason is not the dominant or substantial reason: Anti-Discrimination Act, s 4A; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 102, 144.
The onus of proof rests with the applicant in these proceedings to establish his claim of unlawful discrimination on the balance of probabilities: Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40]. The applicant has not established his claim to the requisite standard having regard to the matters set out in these reasons.
The Anti-Discrimination Act in section 4 definitions provision states:

In YKD v YKE (No 2) [2025] NSWCATAP 101, the Appeal Panel considered the issue of costs under this provision, relevantly it was stated:

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).

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