MT v AA [2009] NSWADT 268 (15 October 2009)

Last Updated: 28 October 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
MT v AA [2009] NSWADT 268
This decision has been amended. Please see the end of the judgment for a list of the amendments.

DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
MT

FIRST RESPONDENT
AA

SECOND RESPONDENT
BB

THIRD RESPONDENT
CC



FILE NUMBERS:
081100

HEARING DATES:
25 and 26 May 2009

SUBMISSIONS CLOSED:
4 September 2009



DATE OF DECISION:
15 October 2009

BEFORE:
Chesterman M - Deputy PresidentSchneeweiss J - Non-Judicial Member Mooney L - Non-Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED:
Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

TEXTS CITED:


APPLICATION:
Anti-Discrimination Act 1977 – discrimination on grounds of disability – discrimination against employee – victimisation – aiding and abetting – vicarious liability

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
I Chatterjee, solicitor, and M Woodroofe, agent
FIRST RESPONDENT
A Franks, solicitor

SECOND and THIRD RESPONDENT
In person (at hearing); A Franks, solicitor (written submissions following hearing)


ORDERS:
1. The Applicants’ claim is dismissed as against all three Respondents
2. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 In these proceedings, the Applicant claimed that during his employment at a hotel in a country town by the First Respondent, who owned the hotel, he was subjected to discrimination on the ground of disability and victimisation in breach of the Anti-Discrimination Act 1977 (‘the AD Act’) by the Second Respondent, who was the hotel’s manager. The most significant breach of which he complained was his being summarily dismissed by her. He also claimed that her son, the Third Respondent, had aided and abetted breaches of the AD Act by the Second Respondent and had victimised him.

2 The Applicant first complained of these matters to the Anti-Discrimination Board (‘the Board’) in a letter dated 16 December 2007. On 13 October 2008, the President of the Board referred the case to the Tribunal.

3 At the hearing, which took place at the Local Court at Wagga Wagga on 25 and 26 May 2009, the Applicant sought and obtained an order that the court should be closed and that in any public document relating to the proceedings he should be identified by a pseudonym. The grounds for this order were that publication of his identity, together with the fact that he was HIV+ (this being an essential component of his case against the Respondents), would cause him undue prejudice, having regard particularly to the nature of the circumstances giving rise to the proceedings. The pseudonym adopted by the Tribunal is ‘MT’.

4 The two days of hearing were occupied by evidence. Directions were given for the filing of written submissions. The date on which the final submissions were filed was 4 September 2009.

5 At the hearing and in the preparation of submissions, MT was represented by two members of the staff of the HIV/AIDS Legal Centre, namely Mr I Chatterjee and Ms M Woodroofe. Mr A Franks, of Slater & Elias Solicitors, represented the First Respondent at the hearing and all three Respondents in the preparation of submissions. The Second and Third Respondents represented themselves at the hearing.

Outline of evidence

6 MT’s written evidence comprised three statements sent by him to the Board and three further statements sent on his behalf to the Board by his legal representatives. All the other written evidence admitted at the hearing took the form of affidavits and statutory declarations.

7 The principal events giving rise to these proceedings all occurred during the latter part of 2007. Unless otherwise indicated, the dates mentioned below are all within that year.

8 The involvement of the parties with a hotel in a country town. MT described himself in his first statement to the Board as ‘a young HIV+ gay man’. He lived in a country town (‘the Town’) in the late 1990s, but because its population was only about 2,500 he found is difficult to retain his privacy with regard to his HIV status and his sexuality. He said that he was forced to leave the Town in 1999 due to harassment over his presumed sexuality at his workplace. He returned to the Town in 2004 and in September 2006 he obtained employment as a member of the bar staff at a hotel in the Town (‘the Hotel’).

9 On or about 10 September 2007, shortly after purchasing the Hotel, the First Respondent took over its operation. He installed the Second Respondent as its manager and licensee and delegated to her all aspects of the management of the Hotel. She lived in a unit above the bar with her son, the Third Respondent. The First Respondent retained a limited supervisory role, visiting the Hotel only once every three to three and a half weeks.

10 MT continued as a member of the bar staff, employed on a casual basis by the First Respondent. In his first week of employment by the First Respondent (the week ending on 16 September) he worked for 14 hours, spread over four days. In his second week, he worked for 15 hours, also spread over four days. He was employed in the Hotel for five more weeks, during which the numbers of hours that he worked each week were successively 32.5, 31, 32.5, 31.5 and 27.5. In each of these weeks, he worked on either five or six days. On 30 October, in circumstances outlined below, the Second Respondent terminated his employment.

11 The Third Respondent used to assist the Second Respondent from time to time in the Hotel, but according to his evidence (and that of the Second and First Respondents) was never employed there. In the case initially framed by MT, it was asserted that the Third Respondent was an employee. At the hearing and in the submissions filed subsequently, however, this assertion was abandoned.

12 During September, the Third Respondent and MT became friendly with each other, but their relationship then deteriorated. According to MT, this was for reasons associated with the course of a sexual relationship between Ms IC, a long-term friend of MT, and the Third Respondent. That relationship commenced in September and lasted for some six or seven weeks. According to the Third Respondent, the friendship between him and MT ‘soured’ after he told MT that he was not homosexual.

13 MT’s assertions about his role at the Hotel. There was evidence to the effect that during September and October MT told various people that he either was a co-owner of the Hotel or occupied the position of second in charge and/or entertainment manager. In brief, this evidence was as follows:-

1. Ms JF said that in or about early September she indicated to the Second Respondent that MT described himself to Hotel customers as its entertainment manager. JF had been employed as a cleaner at the Hotel since 2002.

2. The Second Respondent said that at about the same time Ms LB indicated to her that MT had been telling ‘all the locals’ that he and LB had shares in the hotel. LB was a long-term friend of MT and, like him, worked as a bartender at the Hotel.

3. The First Respondent said that in or about early October a customer of the Hotel reported to him an allegation by MT that he (MT) was in partnership with the First Respondent.

4. The Third Respondent said that in early October some ‘members of the community’ indicated to him that MT was ‘telling the public’ that he was second in charge at the Hotel and in charge of entertainment.

5. Ms VX, an employee of the Hotel, said that she had heard people reporting statements by MT to the effect that he was the events manager or the entertainment manager or was second in charge.

14 According to one of the written statements sent by MT to the Board, on one occasion, after having erected some signage in the Hotel, he said jokingly to a good friend of the First Respondent that ‘next’ he would be ‘second in charge’. In cross-examination, however, he said that the inclusion of this statement was due to a mistake by his lawyers. He denied having ever described himself as ‘second in charge’ or as a part owner, but admitted having said to some person that he was the Second Respondent’s entertainment manager.

15 Disclosure of MT’s HIV status. MT testified that he had told the previous owners of the Hotel that he was HIV+ and that on or about 12 September he advised the Second Respondent of this in the course of a private conversation with her. He said that this fact was ‘not common knowledge’. His reasons for disclosing it were that he thought it was appropriate for an employee to pass such information on to his or her employer and that he wished to let her know why he was taking medication.

16 According to the Second Respondent’s affidavit, she was informed of this matter early in September by JF. JF corroborated this in her affidavit, adding that MT had told her of his HIV status during a conversation at the Hotel during September 2006. But in cross-examination, both the Second Respondent and JF said that their conversation on this matter probably occurred later than early September 2007.

17 LB recalled a conversation between herself, MT and JF early in 2007, in the course of which MT mentioned taking pills for a ‘blood disease’ that he had. He did not reveal, and she did not ask him, what kind of blood disease it was.

18 The Second Respondent said further that in or about October MT ran up to her quite unexpectedly, said in a very loud voice that he had HIV and then ran off.

19 She said also that at no time did she tell the Third Respondent or anyone else about MT’s HIV status, nor indeed about his homosexuality (this being a matter that she had overheard him more than once disclosing to customers at the Hotel).

20 In a statutory declaration signed on 14 November 2007, however, and in oral evidence, IC testified that on 25 October, during a conversation with MT and the Third Respondent at her home, she asked MT about a medical test that he had just undergone. Having asked whether it had been a test for AIDS, the Third Respondent then volunteered the information that the Second Respondent had told him that MT had AIDS. In reply to a question from MT as to how and when the Second Respondent said this, the Third Respondent said that it happened about three weeks after the Second Respondent had taken over management of the hotel. IC formed the impression that MT was very upset that the Third Respondent had obtained this information from the Second Respondent, though he did not display his feelings at the time.

21 During cross-examination, IC said, however, that she had a short conversation with the Third Respondent about MT’s HIV status and that she could not remember whether this occurred before or after 25 October. She said also that she could not remember whether MT had asked her to treat his HIV status as confidential information and that she did not know whether there were rumours at the time to the effect that MT was HIV+.

22 The Third Respondent’s evidence on this matter was that early in October, having heard from ‘a few people in town’ that MT was HIV+, he asked for and obtained IC’s confirmation that this was the case. His reason for asking her was that MT had previously claimed to be suffering from cancer and to have tried to commit suicide. He added that MT had appeared, in a ‘strange’ manner, to ‘make light of’ these claims. He denied (a) being advised about MT’s HIV status by the Second Respondent and (b) telling MT that the Second Respondent had given him this information.

23 In his written and oral testimony, MT’s depiction of the conversation on 25 October was similar to that provided by IC, except that he specified the information that the Third Respondent allegedly received from the Second Respondent as his HIV status, not an allegation that he had AIDS. MT added that in the course of this conversation he described his HIV status to the Third Respondent as ‘not common knowledge’ and as a confidential matter. He said also that IC, as a long-term friend, already knew of it, as did a small number of other people. He stated that he was very careful to disclose it only under appropriate conditions to people whom he considered appropriate and that he had only told about ten people, who did not include a number of his relatives.

24 MT acknowledged, however, that IC might have told the Third Respondent of his HIV status. He said also that since 2004 there had been ‘rumours’ in the Town of the ‘possibility’ that he might be HIV+. He attributed them to the fact that before his return to the Town in 2004 he had been very sick for a period in a hospital in Sydney and he still did not look well. He added that during September and October 2007 his head was shaved and that he had told people that he had ‘a cancer-like disease’, though not cancer.

25 The Second Respondent’s complaints about MT’s work record. In her affidavits, the only grounds that the Second Respondent put forward for being dissatisfied with MT’s performance as a Hotel employee were those already outlined. But during cross-examination she alleged (a) that on one occasion the takings at the Hotel’s till during a period when he was on duty were $50.00 short of what they should have been and (b) that on another occasion when he was off duty he had brought friends into the Hotel who were drunk and noisy, with the consequence that she had had to ask them to leave.

26 In his case in reply, MT acknowledged that there had indeed been a deficit at the till along the lines alleged by the Second Respondent, but that she dealt with the matter by saying that he should not let it happen again and that he should not worry about it. He also acknowledged that on one occasion he had brought some rather noisy friends into the Hotel, but claimed that the Second Respondent had not expressed any concern about it.

27 The Ball. On Saturday 27 October, MT did not work at the Hotel. In the evening, he attended a ball (hereafter ‘the Ball’) in a hall near the Hotel, together with IC and two other friends.

28 VX, who as mentioned earlier was an employee of the Hotel, also attended the Ball. In oral evidence (she supplied no written statement in advance of the hearing), she testified that three friends or acquaintances of hers asked her whether they could go on to the Hotel after the Ball. When she asked them why they were putting this question to her, they replied that MT had told them that because they were too drunk they would not be admitted to the Hotel. VX then rang another employee, Mr PY, who was on duty at the Hotel, because she herself wanted to go there. She passed on to him this allegation regarding MT. PY replied that he had not heard of any refusal by the Hotel to admit persons attending the Ball and that they would be welcome. On her next shift, which was within the next few days (she could not remember exactly when), VX informed the Second Respondent of this allegation about MT.

29 The Second Respondent said in her principal affidavit that while she was working at the Hotel on the night of the Ball, both she and members of her staff were advised in phone calls from ‘a number of people’ at the Ball that MT had told them, in a rude and abusive manner, that they were too drunk to be permitted to go to the Hotel. She said that these would-be customers of the Hotel were ‘quite annoyed and angry’ about MT’s behaviour and that it caused financial loss to the Hotel because it deterred them from going there.

30 In a subsequent affidavit and during her evidence in chief, however, the Second Respondent sought to ‘clarify’ this evidence by saying that the phone calls in question had been received by PY, that PY was also told of the matter by VX and that she herself heard of it from VX during VX’s next shift at the Hotel.

31 During cross-examination, the Second Respondent admitted that her earlier claim to have received calls herself from people attending the Ball was incorrect. She said that having come downstairs from her home unit to the bar, she was told by PY of this allegation about MT’s statements and asked by him whether MT had been instructed to make them. She said first that she could not remember whether VX told her about them before or after MT’s dismissal on 30 October, but subsequently claimed that this happened before the dismissal. She added that PY was not an entirely satisfactory employee and that he did not get on well with MT. She referred in this context to having conducted an ‘in-house investigation’ of the matter before dismissing MT. A further matter that the Second Respondent mentioned in cross-examination was that VX claimed only to have ‘overheard’ the statements being made by MT.

32 MT testified that while he and IC were at the Ball, she said that she would like to go on to the Hotel ‘for a few more shots’. He told her that she was too drunk to do this. VX was nearby and could have overheard them. IC did not give evidence about this matter.

33 The annotation on MT’s timesheet. On 24 or 25 October (according to the Second Respondent) or 28 October (according to MT), MT found the words ‘Mr Important’ written on the timesheet recording his hours of work at the Hotel. This made him very upset. The reason that he gave for this reaction was that because it was his timesheet he believed that no-one other than himself had any right to write on it.

34 In cross-examination MT said that in his opinion the writing of these words did not amount to harassment on the grounds of homosexuality or HIV status. He said however that this ‘defacement’ of the documents was ‘fraudulent’ and amounted to harassment in the sense of bullying. He observed subsequently that some of the harassment on grounds of homosexuality that he had experienced in the Town during 1999 had taken the form of words written on slips of paper.

35 Soon after seeing this, MT complained about it to the Second Respondent, saying that he was most aggrieved. Their accounts of the ensuing conversation between them differed significantly.

36 According to MT, she said to him that this was not a matter worth taking any action over and that because no-one was going to own up to it there was nothing that she could do about it. She did not try to find out from him why it affected him so much.

37 The Second Respondent said in her affidavit that she told MT that she would look into the matter immediately. She denied having said to him, at this or any other time, that if he could not ‘deal with the harassment’ he should work in another industry. In cross-examination, however, she said that she told him that if the epithet ‘Mr Important’ was going to upset him so much he should work in another industry. She said also that MT did not assert in her presence, nor did she herself consider, that the writing of these words was connected in any way with his HIV status or his homosexuality.

38 According to the Second Respondent, she then went to the timesheet, which was kept under the bar of the Hotel, and whited out the words ‘Mr Important’. She recognised the handwriting as that of her son, the Third Respondent. That evening she asked him why he had put those words on the timesheet. His reply, according to her, was to the effect that it was only a joke, prompted by the fact that, as the Second Respondent expressed it in her affidavit, MT ‘is always telling me what to do... [and] just thinks he is so good’.

39 In his statement to the Board, MT said that he did not believe that the Second Respondent took any action in the matter. But in cross-examination he acknowledged that after his dismissal on 30 October he saw that the words had in fact been whited out.

40 MT’s letter of complaint. On 30 October 2007, MT took to the Hotel three copies of a letter bearing that date and his signature. He left a copy for the Second Respondent and another for the First Respondent and placed the third behind the bar, where any member of the staff could find it.

41 The letter commenced as follows:-

I am writing to inform you of your legal right as an employer to uphold all laws relating to Discrimination and Harassment within the workplace.

On the 28th of October 2007, I found that I had been the victim of harassment. While filling out the details into my timesheet I noticed that someone in the period of Friday 26th October 2007, and 28th October 2007 had decided to make a harassing statement next to my name on my time sheet.

After noticing this comment from another member of staff, either co worker or higher, I reported this to your attention via showing the Publican in charge. The comment was made that no one would own up to this and so it would be a waste of time. This unwanted harassment was witnessed by the Publican’s Son ... and his female friend...

Under the Federal and state laws that protect Employee’s from this sort of harassment an Employer/Management is required to follow up on such a complaint, failing to do so would render both Management and Employer/Owner of the Business liable to legal proceedings.

You may not find this much of an issue, however I am of the complete opposite conclusion. I am meant to be able to go to my workplace on a daily basis without being harassed, discriminated against, or treated in a manner which is deemed to be unwanted behaviour...

42 In the rest of the letter, MT stated that unless within seven days steps were taken by ‘Management and Employer’ to find ‘the person responsible for this action’ and ‘provide them with a suitable punishment’, he would proceed with legal action. He added that the matter was already in the hands of his family’s solicitors, that the consequence of failure to comply would be that these solicitors and/or a third party, such as the Human Rights and Equal Opportunity Commission, would send ‘a legal document’ and that a copy of the letter had been provided to ‘all Persons involved, including Management, Employer/Owner, Victim, Legal Advisers and HREOC’.

43 Below the text, MT placed a copy of the stamp used by the Human Rights and Equal Opportunity Commission, which included the name of this organisation.

44 In cross-examination, MT was asked why he did not complain in this letter about the Second Respondent’s alleged disclosure of his HIV status to the Third Respondent. He said this was for two reasons: (a) he did not want to get the Third Respondent into trouble; and (b) he did not want to refer to his HIV status in a letter that would be going to all the staff of the Hotel.

45 The circumstances of MT’s dismissal. On 30 October, after MT had taken copies of this letter to the Hotel, the Second Respondent called him and asked him to meet her there. She took him to a private room, where a conversation between them ended with her dismissing him from employment at the Hotel.

46 According to MT, he tried to explain why he was dissatisfied with the way she had dealt with his complaint about the ‘Mr Important’ incident. She asked why he wanted to make such an issue of it, adding that if he could not deal with harassment of this type he should not work in the industry. He also alleged that she had told the Third Respondent about his HIV status and expressed dissatisfaction about this. Her response was to the following effect:-

You are a public health risk. I am required to inform the other employees of the Hotel of your condition.

47 MT said also that the Second Respondent accused him of having said things at the Ball that affected the Hotel’s trade (to which he replied that the only person whom he had accused being too drunk was IC) and of having claimed to be second in charge at the Hotel (to which he replied that it was only a joke).

48 The Second Respondent testified that she asked for an explanation of the letter of 30 October. He described it as his ‘formal complaint’ of being victimised. She said that she had dealt with it immediately and that he should ‘go and look at the noticeboard’ (referring possibly to the timesheet or to the collection of timesheets maintained at the Hotel, though this question was never clarified in the evidence). She added that he had not told her why he was so upset about this matter. She then upbraided him for causing the Hotel to lose a lot of money by telling people at the Ball that the Hotel would not accept them. His response was that he was ‘just trying to help’. She said also that she was ‘sick and tired’ of his ‘lying’ by telling people that he was second in charge at the Hotel or that he had shares in it.

49 The Second Respondent denied the following claims by MT regarding this conversation: (a) that she told him that if he could not deal with harassment he should not work in the industry; (b) that he alleged that she had disclosed his HIV status to the Third Respondent; and (c) that she said that he was ‘a public health risk’ and that other Hotel employees should be informed of his condition.

50 According to both parties, this conversation became heated, with voices being raised. They both testified that he became angry after she had accused him of ‘lying’. MT agreed in cross-examination that ‘things turned bad’ and ‘it turned ugly’. According to the Second Respondent, his response was to say ‘Don’t talk to me in that way’ and his stance and behaviour became very aggressive. She said that she could not work with him ‘with that attitude’ and that she was giving him seven days’ notice (according to his account, the notice period that she indicated was fourteen days). He replied that he was ‘quitting now’, because he was a casual employee and therefore not entitled to any period of notice.

51 The Second Respondent testified that after this meeting she was shaking and felt ‘stunned’. She went straight to the First Respondent, who happened to be at the Hotel, and told him about the meeting with MT. She also told him about her handling of the ‘Mr Important’ incident and showed him MT’s letter. He approved her actions on both these matters. In his evidence, he said that when she came to him she was ‘white and shaking’.

52 In re-examination, the Second Respondent was asked what her reasons were for dismissing MT. She said first that she did it because of his ‘aggressive and abusive attitude’ at the meeting on 30 October. When asked whether there was ‘anything else’, she said that ‘he was wearing thin’ and that it was ‘all piling up’. She mentioned the deficiency at the till, the bringing of drunken friends into the Hotel, the exaggerated claims that he made about his role there and his behaviour at the Ball, but then affirmed that his ‘attitude’ at the meeting was ‘the final straw’. She denied that her dismissal of him had anything to do with his HIV status.

53 Events following the dismissal of MT. MT testified that as a result of his dismissal he felt hurt and depressed. This was corroborated in evidence given by his father.

54 Two months after his dismissal, MT took up employment as the manager of another hotel in the Town. He testified however that he experienced a great deal of abuse and harassment, and some physical violence, in the course of this employment, with the consequence that during 2008 he resigned and moved away from the Town. He alleged also that during the period before his departure the attitude of residents of the Town became generally more hostile to him.

55 MT said in a written statement to the Board, which formed part of his evidence, that he believed the reason for these developments to be that the Second Respondent and the Third Respondent continued to tell people about his HIV status. He adduced no specific evidence, however, of occasions when they did this.

56 MT also claimed that more than once during this period the Third Respondent made threatening gestures towards him (such as drawing his fingers across his throat) and abused him for being homosexual. He gave no precise details, however, of these occurrences.

57 On 24 December, MT filed his claim of unlawful discrimination with the Board.

58 In a later statement to the Board that formed part of his evidence to the Tribunal, he alleged that on 31 December the Third Respondent abused him physically and verbally, threatening retaliation if he pursued this claim further. He gave no precise details of this conduct.

59 The Third Respondent denied that any of this conduct occurred. He added that he did not see MT on 31 December 2007 and that he did not know of MT’s claim to the Board until the Board wrote to him on 26 February 2008.

60 A further consequence of his dismissal from the Hotel, according to MT, was that he lost the opportunity to continue to operate a driving school business that he had established in the Town. In cross-examination, he acknowledged however that at this time the business was ‘in the red’.

Assessment of the evidence

61 The two witnesses of prime importance in this case were MT and the Second Respondent. For different reasons, we consider that neither of them was a wholly reliable witness.

62 MT appeared to us to be particularly ready to interpret conduct by other people as trespassing on his rights and causing unjustified harm to him, and also to assume that the authors of any such harm were people whom he had already identified as hostile to him. These characteristics are clearly discernible in the text of his letter of 30 October 2007 complaining about the ‘Mr Important’ incident and in his assertion, advanced without any supporting evidence, that the reason why residents of the Town became generally more hostile to him after his dismissal from the Hotel was that the Second Respondent and the Third Respondent continued to tell people about his HIV status. We suspect that his recollection of the events of September and October 2007 was affected by these aspects of his personality.

63 The Second Respondent appeared to us to be a straightforward, no-nonsense person and her evidence on most matters was coherent and plausible. But in addition to being unreliable on dates, she changed or amplified her story in several ways. She said initially that a number of guests at the Ball rang her at the Hotel to complain that MT had told them that they would not be admitted to the Hotel, but later claimed that these calls from guests were taken by PY. During cross-examination, she made fresh claims that were or might be adverse to MT’s case. These were (a) that she had conducted an ‘in-house investigation’ of the complaints made by the Ball guests before raising the matter with MT and (b) that MT’s behaviour as an employee during September and October 2007 had been unsatisfactory on two distinct occasions.

64 For these reasons, we are not inclined to take at face value any significant assertion made by either of these witnesses which tends to support his or her case unless there is independent evidence to support it or there are other good reasons for treating it as correct.

65 While we believe that the testimony of the other witnesses betrayed, up to a point, their sympathy for one or other ‘side’ in these proceedings, we consider it to have been generally reliable. We indicate below a couple of specific qualifications to this assessment.

The grounds of MT’s claim against the Second Respondent

66 For reasons that will become apparent, it is convenient to discuss MT’s action against the Second Respondent first, then to deal with his separate claims against the First Respondent and the Third Respondent.

67 In the written submissions prepared and filed on his behalf by Mr Chatterjee, MT claimed that the Second Respondent’s conduct breached the AD Act in the following four ways:-

1. Since one of the reasons why she dismissed him from employment by the First Respondent was her belief that his HIV status made him a public health risk, the dismissal constituted unlawful discrimination on the ground of disability in contravention of section 49D(2)(c).

2. By dismissing him from employment following receipt of his complaint, in his letter of 30 October 2007, that her lack of action in response to his prior verbal claim to have been harassed by the ‘Mr Important’ annotation was discriminatory, she victimised him in contravention of section 50.

3. By disclosing his HIV status to the Third Respondent and indicating that she would disclose it to other employees of the Hotel, she engaged in unlawful discrimination subjecting him to a detriment, in contravention of section 49D(2)(d).

4. By failing to take appropriate action in response to (a) MT’s verbal claim of have been harassed by the ‘Mr Important’ annotation and (b) his subsequent written complaint about her inaction, made in his letter of 30 October 2007, she engaged in unlawful discrimination subjecting him to a detriment, in contravention of section 49D(2)(d).

Relevant statutory provisions

68 For present purposes, the relevant parts of sections 49D(2) and 50 of the AD Act are as follows:-

49D Discrimination against applicants and employees

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:...

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:...

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act...

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

69 The definition of ‘disability’ in section 4 of the AD Act includes ‘the presence in a person’s body of organisms causing or capable of causing disease or illness’.

70 Discrimination on the ground of disability is defined in section 49B. For present purposes, the relevant parts of this section are as follows:-

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) 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...

71 In interpreting sections 49B and 49D, section 4A must be taken into account. It states:-

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

72 It is well established in the case law (see for example Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 at [8]) that except when a respondent seeks to establish an exception to liability, the onus of proof in proceedings under the AD Act lies on the applicant.

The meaning of the phrases ‘on the ground of’ and ‘on the ground that’

73 In his submissions, Mr Chatterjee argued that in interpreting the phrase ‘on the ground that’ as used in section 50, the test to be applied was that stated by the Tribunal in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [43]. Adopting language used by Kirby J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 62-64, the Tribunal said that ‘it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of race discrimination, "had a real causative effect in the sense that but for its presence the act complained of would not have occurred". Mr Chatterjee did not address the corresponding question arising under section 49D(2).

74 In Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [18 – 37], however, an Appeal Panel of the Tribunal held that a different approach was required since the High Court’s decision in Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. It said that the ‘but for’ test applied in Sivananthan was no longer applicable when interpreting the phrase ‘on the ground of’ in the contexts of both discrimination complaints (for example, under section 49D) and victimisation complaints under section 50.

75 In Nicholls at [26], the Appeal Panel quoted the following dictum of McHugh and Kirby JJ in Purvis:-

The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator.

76 At [28], the Panel stated its conclusions regarding discrimination complaints in the following terms:-

The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.

77 At [29] and [36], the Panel held that merely because section 4A of the AD Act was applicable to discrimination complaints but not to victimisation complaints it did not follow that the phrase ‘on the ground of’ should be interpreted differently. At [36], it described section 4A as ‘an explanatory provision which does not give the words "on the ground of" an extended meaning beyond their ordinary meaning’. At [37], it concluded that the meaning given to this phrase should in fact be the same in the two different contexts (discrimination complaints and victimisation complaints).

78 We will now relate this discussion of the phrases ‘on the ground of’ and ‘on the ground that’ to the first two of the breaches of the AD Act alleged by MT against the Second Respondent (see [67] above). His claim that she breached section 49D(2)(c) is based on his contention that she dismissed him from employment by the First Respondent at the Hotel ‘on the ground of’ his disability (i.e. his HIV status). His claim that she breached section 50 is based on his contention that she dismissed him ‘on the ground that’ he had complained, in his letter of 30 October 2007, that her lack of action in response to his prior verbal claim to have been harassed was discriminatory. In dealing with these two alleged breaches, the principles just outlined require a determination to be made regarding the ‘real’, ‘genuine’ or ‘true’ reasons (a phrase which henceforth we will abbreviate to ‘real reasons’) for her decision to dismiss him.

The reasons for the Second Respondent’s dismissal of MT

79 As indicated above at [52], the Second Respondent identified her primary reason for dismissing MT as his ‘aggressive and abusive attitude’ at the meeting on 30 October. She said also that this was ‘the final straw’, since there were other reasons for her dissatisfaction. She listed these other reasons as the incident of the deficiency at his till, his bringing of drunken friends into the Hotel, the exaggerated claims that he made about his role there and his behaviour at the Ball.

80 In considering this part of the Second Respondent’s testimony, we attach importance to the fact that, according to the evidence of both her and MT, their meeting on 30 October became ‘heated’ when the Second Respondent’s accusation of ‘lying’ by him caused him to become angry with her. We accept her evidence that this anger, causing him to become aggressive and abusive, provoked in her the strong feeling that she was not prepared to continue to employ him. Having regard also to evidence from the First Respondent that immediately after the dismissal she was ‘white and shaking’, we accept her statement that the primary reason why she dismissed him was her repugnance to the attitude that he displayed towards the end of this heated confrontation.

81 We accept also her evidence that her dissatisfaction regarding (a) the exaggerated claims that he had made about his role at the Hotel and (b) his behaviour at the Ball contributed to her decision to dismiss him. According to the testimony of both parties, both of these matters were raised by her at the meeting as reasons for her being dissatisfied with him.

82 The other two matters that the Second Respondent referred to as reasons for being dissatisfied with him – namely, the deficiency at the till and the bringing of drunken friends into the Hotel – were not mentioned during the meeting and, indeed, were not part of her evidence in chief. They appear to have been introduced by her as ‘makeweights’ during the hearing. We therefore do not accept her claim that they played a significant role in her decision to dismiss him.

83 Whether or not these matters rendered MT’s dismissal justifiable or ‘fair’ is not to the point. What is significant here is (a) that we find them to have been ‘real’ reasons motivating the Second Respondent to dismiss him and (b) that when considered in conjunction with each other they are of sufficient weight to constitute plausible reasons why a person in her position might act as she did. They are not so ‘lightweight’ that the Tribunal would have to infer – as indeed Mr Chatterjee urged us to infer – that other reasons, such as those advanced by him, must have been operative instead.

84 At the same time, our acceptance that some of the matters put forward by the Second Respondent were ‘real’ reasons for dismissing MT would not preclude a finding that one or both of two specific matters relied on by Mr Chatterjee were also ‘real’ reasons.

85 With reference to MT’s claim that the Second Respondent’s dismissal of him constituted unlawful discrimination under section 49D(2)(c), Mr Chatterjee relied on MT’s allegation that during his meeting with the Second Respondent on 30 October, following his putting to her that she had told the Third Respondent about his HIV status, she said: ‘You are a public health risk. I am required to inform the other employees of the Hotel of your condition.’ What this showed, according to Mr Chatterjee, was that the ground of his dismissal was his HIV+ status. The Second Respondent denied having made this statement.

86 With reference to MT’s claim that the dismissal amounted to victimisation under section 50(1)(c), Mr Chatterjee relied on MT’s allegation in his letter of that date that the Second Respondent had discriminated against him by not dealing properly with his prior complaint about the ‘Mr Important’ incident. He pointed out that she had summoned MT to meet her very soon after receiving this letter, without suggesting to the First Respondent (who was at the Hotel) that he should also attend. This showed, Mr Chatterjee argued, that her dismissal of him was prompted by the allegation in the letter. The Second Respondent denied that this allegation had played any part in her decision to dismiss him.

87 In our opinion, neither of these lines of argument put forward by Mr Chatterjee receives sufficient support from the evidence. Neither of the two quite different reasons for the dismissal advanced by him can, on our view of the evidence, be characterised as ‘real’, ‘genuine’ or ‘true’ reasons for her decision to dismiss him.

88 The argument put by Mr Chatterjee with reference to section 49(2)(c) depends on our acceptance of MT’s evidence, in the face of a denial by the Second Respondent, that during their meeting on 30 October she described him as a ‘public health risk’ and told him that she was ‘required to inform the other employees of the Hotel’ of his condition. As we understand Mr Chatterjee’s argument, he did not suggest that any other component of the evidence showed that one of the ‘real’ reasons for the Second Respondent to dismiss MT was his HIV status.

89 In view of our concerns (expressed above at [64]) about the reliability of both MT and the Second Respondent as witnesses, we consider that this conflict between their testimonies should be resolved as far as possible by reference to independent evidence. In this connection, the most telling evidence is the record of the number of hours worked by MT at the Hotel during his employment there. On his own showing, he told the Second Respondent of his HIV status early in September 2007. If she really believed that he was accordingly a ‘public health risk’, one would have expected her to provide him thereafter with less work at the Hotel, if not indeed to dismiss him immediately. But in fact the number of hours that he worked each week increased from 14, in the week ending 16 September, to a maximum of 32.5 during October. The Second Respondent was not asked in cross-examination to explain this apparent contradiction between the statement that she made, according to him, on 30 October and her earlier willingness to increase significantly his hours of employment.

90 In addition, we think it improbable that she would have made a statement in the terms alleged by MT. He testified that she made it in response to his claim that she had disclosed his HIV status to the Third Respondent. The alleged statement includes an observation that the Second Respondent believed herself to be bound to disclose this fact to ‘the other employees of the Hotel’. Throughout these proceedings, however, the Second Respondent – as well as the First Respondent and the Third Respondent himself – has maintained that the Third Respondent was never an employee of the Hotel. MT sought to substantiate an assertion to the contrary in the earlier stages of these proceedings, but the evidence adduced by him was decidedly weak and the assertion was seemingly abandoned in the written submissions filed after the hearing.

91 For these reasons, and taking account of the fact that the onus of proof of this matter lies on MT, we find that he has failed to establish on the balance of probabilities that the Second Respondent made the statement about him being a ‘public health risk’ during their meeting on 30 October 2007.

92 In these circumstances, it is not necessary for us to rule on a contention by Mr Franks that, even if we found that this statement had been made, it would not follow that MT’s HIV status constituted a ‘real’ reason for the Second Respondent to dismiss him. We will make just two comments on this contention. The first is that contrary to a submission by Mr Franks the phrase ‘public health risk’ could in our view be taken in the circumstances to have referred implicitly to MT’s HIV status. The second, however, is that the objective fact of MT’s increased working hours following his disclosure of this status to the Second Respondent militates strongly against inferring that this status constituted one of the ‘real’ reasons for her to dismiss him.

93 We turn now to Mr Chatterjee’s submissions relating to section 50(1)(c). In our judgment, they cannot prevail on account of the following aspects of the evidence. First, MT acknowledged that when he first complained to the Second Respondent about the appearance of the ‘Mr Important’ annotation on his timesheet, he did not indicate to her, either expressly or by implication, that he regarded the annotation as in any way connected with his HIV status. Secondly, her testimony that at this time she also did not see any connection between these two issues was not questioned. Thirdly, the letter of 30 October emphasised strongly that MT viewed the making of the annotation as a form of harassment of him and that what MT required was protection by his employer – implicitly the protection that employment law required – from harassment by a fellow-employee. Fourthly, the letter gave very little prominence to the concept of discrimination. As shown in the passage quoted above at [41], it mentioned this concept on only two occasions, in each of which it also referred to harassment. The terms in which it maintained that her ‘inaction’ in response to his earlier oral complaint was discriminatory were noticeably vague and inconspicuous within the context of the letter as a whole. Fifthly, the letter made no attempt to explain how the Second Respondent’s alleged failure to deal properly with his oral complaint amounted to discrimination against him. In particular, it did not refer, either expressly or by implication, to his HIV status. Sixthly, the Second Respondent believed that the steps that she had taken in response to this complaint were sufficient to stave off any legal repercussions such as the letter foreshadowed.

94 Taking account of these considerations alongside the contentions advanced by Mr Chatterjee, we conclude as follows. Even if the letter’s strongly worded assertion that the Second Respondent had failed to discharge the duty of employers to protect employees against harassment by fellow-employees constituted one of the ‘real’ reasons why she dismissed him, the same cannot be said of its much vaguer and less conspicuous assertion that, on entirely unspecified grounds, she had discriminated against him. But only the latter assertion may be taken into account here because what section 50(1)(c) requires is that ‘the person victimised has... alleged that the discriminator... has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act’.

MT’s claims that the Second Respondent’s dismissal of him breached the AD Act

95 The foregoing conclusion that the Second Respondent’s dismissal of MT from employment was not ‘on the ground of’ his HIV+ status is fatal to his claim of unlawful discrimination under section 49D(2)(c). We might add – though we do not need to decide the matter – that his claim that in being dismissed he was treated ‘less favourably’ than a person who did not have his disability seemed also to us to be problematic. As Mr Franks submitted, another employee of the Hotel who did not have this disability would (or at least might) also have been dismissed if the grounds on which the Second Respondent dismissed MT were applicable to him or her.

96 Similarly, our conclusion that the dismissal of MT was not ‘on the ground that’ his letter of 30 October alleged discrimination by the Second Respondent against him is fatal to his claim of victimisation under section 50. We had indeed some doubt as to whether what we have described as a ‘vague’ assertion of discrimination in the letter amounts to an allegation that ‘the discriminator... has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act’ within the meaning of section 50(1)(c). But we do not need to resolve this question.

97 We turn now to the third and fourth of the four alleged breaches by the Second Respondent of the AD Act that are outlined above at [67].

The Second Respondent’s alleged conduct in disclosing and threatening to disclose MT’s HIV status

98 The third breach of the AD Act that MT alleged against the Second Respondent was that by (a) disclosing his HIV status to the Third Respondent and (b) indicating that she would disclose it to other employees of the Hotel, she engaged in unlawful discrimination subjecting him to a ‘detriment’, in contravention of section 49D(2)(d).

99 It is convenient here to point out first that we have already held that MT has failed to establish the second of these two factual allegations. At [91] above, we held to be unproven his claim that during his meeting with the Second Respondent she said: ‘You are a public health risk. I am required to inform the other employees of the Hotel of your condition.’ No other alleged instance of an indication by the Second Respondent that she would disclose his HIV status to employees was apparent in the evidence or identified in Mr Chatterjee’s submissions.

100 The evidentiary basis for the first allegation – i.e., that the Second Respondent disclosed MT’s HIV status to the Third Respondent – is the testimony by MT and IC to the effect that on 25 October the Third Respondent conveyed information of this nature to them, indicating that the disclosure had been made around the beginning of October. The Second Respondent denied having made any such disclosure to the Third Respondent. The Third Respondent denied both receiving this information from the Second Respondent and telling MT that the Second Respondent had given him this information. According to the Third Respondent, he had heard ‘from a few people in town’ that MT was HIV+ and that at his request IC confirmed this for him.

101 Mr Franks submitted that we should not believe IC’s evidence on this matter. The reason that he advanced for disbelieving her was that at the time when she made her statutory declaration on the matter – namely, on 14 November 2007 – she would have had feelings of sympathy for MT, who had been a friend for many years, and feelings of antipathy towards the Third Respondent, who had recently broken off a relationship with her.

102 Mr Franks referred also to IC’s oral testimony that she separately discussed MT’s HIV status with the Third Respondent and that she could not remember whether this was before or after the conversation between the three of them on 25 October. She acknowledged this under some pressure during cross-examination, appearing reluctant to acknowledge the possibility that, as the Third Respondent himself said, she was the person who confirmed prior suspicions on his part that MT was HIV+.

103 We observe also that although in cross-examination IC identified the information which (she said) the Third Respondent claimed to have received from the Second Respondent as MT’s HIV+ status, her statutory declaration, sworn soon after the relevant events, referred to a claim that MT had AIDS. Remarkably, this significant discrepancy received no attention during the hearing. Because she was not asked to explain it, we cannot attach too much weight to it. But equally we do not think that it should be ignored when assessing her evidence.

104 In view of the aspects of IC’s evidence that we have just outlined, we consider that it should be treated with caution. Having regard to this and to the doubts that we have already expressed (at [62], [64]) about MT’s evidence, our conclusion is that he has failed to discharge the onus of proving that the Third Respondent revealed to both of them on or about 25 October that the Second Respondent had told him of MT’s HIV status.

105 Even if, contrary to what we have just said, we preferred the evidence of MT and IC on this matter to that given by the Second Respondent and the Third Respondent, we would still consider that MT had failed to establish all the ingredients of a breach of section 49D(2)(d) by the Second Respondent. In forming this view, we take account particularly of the evidence given by IC in cross-examination and of certain evidence given by MT.

106 This evidence given by MT is to the following effect: (a) that since his return to the Town in 2004 there had been rumours that he might be HIV+, stemming probably from his appearing unwell at the time of his return; (b) that during September and October 2007 he had told people that the reason why his head was shaved was that he had ‘a cancer-like disease’, though not cancer; and (c) he knew that during these two months at least seven people working at or frequenting the Hotel were aware of his HIV status.

107 In the light of this evidence, the balance of probabilities favours the proposition that any disclosure of this status by the Second Respondent to the Third Respondent either (a) took place after the Third Respondent had found out about it from other sources (eg from IC) or (b) did no more than confirm a strong suspicion that he already held.

108 In these circumstances, we hold that such disclosure, if it occurred, did not ‘subject’ MT to any ‘detriment’ within the meaning of section 49D(2)(d). The authorities on ‘detriment’ in the context of this provision and of section 50 – see in particular Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [40 – 41] – make it clear that a ‘detriment’, while defined broadly as an ‘loss, damage or injury’, must be ‘real and not trivial’, must be defined objectively and not subjectively and must something which a reasonable person would consider to be a detriment. While MT may have felt disappointed and indeed angry that the Second Respondent appeared to have passed on to her son a piece of information about him that (on his account of events) he communicated to her in confidence, any harm done to him was, on the balance of probabilities, either non-existent or insignificant.

109 By virtue of the foregoing rulings, we do not need to consider whether the requirement of ‘less favourable’ treatment in section 49B(1) was satisfied with regard to this alleged breach by the Second Respondent of the AD Act.

The Second Respondent’s allegedly inadequate response to MT’s complaints

110 The fourth and final breach of the AD Act that MT alleged against the Second Respondent was that by failing to take appropriate action in response to (a) his verbal claim of have been harassed by the ‘Mr Important’ annotation and (b) his subsequent written complaint about her inaction, made in his letter of 30 October 2007, she engaged in unlawful discrimination subjecting him to a detriment, in contravention of section 49D(2)(d).

111 In our judgment, this part of MT’s claim must fail, by virtue of three aspects of the evidence that we have already mentioned (at [93]). First, MT acknowledged that when he first complained to the Second Respondent about the appearance of the ‘Mr Important’ annotation on his timesheet, he did not indicate to her, either expressly or by implication, that he regarded the annotation as in any way connected with his HIV status. Secondly, her testimony that at this time she also did not see any connection between these two issues was not questioned. Thirdly, the letter of 30 October made no attempt to explain how the Second Respondent’s alleged failure to deal properly with his oral complaint amounted to discrimination against him and indeed did not refer, either expressly or by implication, to his HIV status.

112 The only apparent basis on which Mr Chatterjee sought in his submissions to link the Second Respondent’s conduct in response to MT’s complaints to the fact that she knew MT to be HIV+, and thereby to characterise this conduct as unlawful discrimination, was to maintain that she had a ‘discriminatory mindset’ against him. This is clearly insufficient, particularly in view of our finding that she did not, as alleged by him, make the statement that he was ‘a public health risk’.

113 This part of MT’s claim against the Second Respondent must accordingly be dismissed.

114 It follows that MT’s claim against the Second Respondent wholly fails and must be dismissed.

MT’s claim against the First Respondent

115 Relying on the undisputed facts that the First Respondent was at all material times the employer of the Second Respondent and the Second Respondent was authorised by him to manage the Hotel staff, MT claimed that the First Respondent was liable under section 53 of the AD Act for any breaches of the Act established against the Second Respondent. The effect of section 53 is to subject an employer to vicarious liability an authorised act of his or her employee that contravenes the Act unless the employer took all reasonable steps to prevent the contravention.

116 No other ground of liability was alleged against the First Respondent.

117 Since we have determined that MT’s claim against the Second Respondent must be dismissed, the same applies to his claim against the First Respondent.

MT’s claim against the Third Respondent

118 Because MT abandoned his assertion that the Third Respondent was employed by the First Respondent at the Hotel, his claim against the Third Respondent was limited to two grounds. These were that the Third Respondent (a) engaged in conduct amounting to victimisation under section 50 of the AD Act and (b) aided and abetted the Second Respondent in unlawfully discriminating against and victimising MT, thereby contravening section 52.

119 The evidence relied on in support of both these claims comprised testimony by MT (summarised above at [56 – 59]) to the following effect. On a number of occasions between his dismissal on 30 October 2007 and the end of that year, the Third Respondent made threatening gestures towards him (such as drawing his fingers across his throat) and abused him for being homosexual. Furthermore on 31 December, after MT had filed his claim of unlawful discrimination with the Board, the Third Respondent abused him physically and verbally, threatening retaliation if he pursued this claim further. MT gave no precise details of this conduct. His evidence on these matters was not corroborated and the Third Respondent denied having acted as alleged.

120 For reasons already explained (see [62], [64]) we are not inclined to take at face value uncorroborated allegations of this nature by MT, particularly since they impute seriously improper conduct on the Third Respondent’s part.

121 This conclusion is enough of itself to warrant the dismissal of MT’s claim against the Third Respondent. In so far as this claim included an allegation of ‘aiding and abetting’ breaches of the AD Act by the Second Respondent, a further ground of dismissal is that we have decided that she did not in fact breach the Act as alleged.

Our orders

122 For the foregoing reasons, MT’s claims against all three Respondents must be dismissed.

123 In his submissions, Mr Franks indicated that in such event the Respondents would or might wish to seek costs. He furnished brief reasons why they would be entitled to an award. He then suggested, in a sentence that is not wholly clear, that they might not ‘press’ for costs.

124 In submissions in reply, Mr Chatterjee sought leave to reserve arguments regarding costs in the event that the Respondents sought an award.

125 Under section 88 of the Administrative Decisions Tribunal Act 1997, the primary rule is that the parties to proceedings such as these should bear their own costs. The Tribunal, however, may award costs is it is ‘fair’ to do so.

126 We direct as follows. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act.







AMENDMENTS:


22/10/2009 - Decision amended to anonymise parties - Paragraph(s) Throughout decision