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A tribunal has determined whether a Queensland lawyer should have to pay for his failed discrimination lawsuit, with his former employer arguing his repeated absences from hearings, lengthy material, and irrelevant allegations drove up its legal costs.
Senior member Peter Roney KC and general member Steven Davison of the NSW Civil and Administrative Tribunal (NCAT) have dismissed an application by Southern Cross University (SCU) to recover approximately $130,000 in legal fees from a former tutor.
In January, SCU successfully had a discrimination lawsuit struck down, with the tribunal finding the university did not directly or indirectly discriminate against the tutor by its alleged failure to accommodate his disability with the purchase of an ergonomic chair.
The tutor – now a principal lawyer in Queensland – also failed to make out his claim that he was victimised and subjected to various detriments because he complained to the vice-chancellor.
“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 one on 11 September 2020,” the members said.
In a follow-up application, the SCU asked the tutor be ordered to pay the $129,642.13 it incurred between September 2024 and September 2025. It submitted narrowing the costs order to only this 12-month period “reflects a commitment to fairness and reasonableness”.
In determining the application, Roney and Davison noted the tutor’s points of claim included a “large number of matters which were demonstrably outside of the scope of the original complaint”.
The points of claim was also 117 pages long, “largely lacking focus on the factual and legal issues to be determined”, and made numerous allegations which were outside those referred to the tribunal by the president of the NSW Anti-Discrimination Board (ADNSW).
This was in addition to the large number of statements and the approximately 2,000 pages of documents in various folders.
The tutor also elected not to attend the second part of a hearing in September 2025, which followed multiple failures to comply with deadlines and extensions back in February 2023.
While Roney and Davison accepted that this conduct resulted in delay and expense to the university, they were not satisfied that it equated to the additional costs incurred during the final year of the proceedings.
Although the September hearing proceeded without the tutor’s presence, Roney and Davison said the relevant matters were still addressed, save for cross-examination and his oral submissions.
SCU submitted that the tutor had unreasonably prolonged the proceedings, but Roney and Davison said there were “many reasons” why the matter took so long to determine, and most of this delay occurred in the proceedings’ earlier years.
The university’s claim that it was “put to great expense” for defending a claim that was misconceived and lacking in substance was also dismissed, with the members clarifying that the original claim was not found to be 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,” Roney and Davison said.
Having found a lack of special circumstances to warrant a costs order, Roney and Davison dismissed the university’s application.
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