Burns v Cunningham (No 2)
[2012] NSWADT 53
•26 March 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Burns v Cunningham (No 2) [2012] NSWADT 53 Hearing dates: On the papers Submissions Closed 13 March 2012 Decision date: 26 March 2012 Jurisdiction: Equal Opportunity Division Before: R J Wright SC, Judicial Member
N Hiffernan, Non-Judicial Member
J Schwager AO, Non-Judicial MemberDecision: The Tribunal orders:
1.the Respondent's application for costs be dismissed.
2. there be no order as to costs on this application.
Catchwords: Costs - Discrimination - Vilification - Homosexual Vilification - Unsuccessful Substantive Application Legislation Cited: Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)Cases Cited: Burns v Cunningham [2011] NSWADT 240
KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8
AT v Commissioner of Police [2010] NSWCA 131Category: Costs Parties: Gary Burns (Applicant)
John Lawrence Cunninghan (Respondent)Representation: G Burns (Applicant in person)
M Cunningham (Respondent)
File Number(s): 101130
REASONS FOR DECISION
EQUAL OPPORTUNITY DIVISION (R J Wright SC, Judicial Member, N Hiffernan, Non-Judicial Member, J Schwager AO, Non-Judicial Member): The Tribunal has before it an application by the Respondent that the Applicant pay its costs of this proceeding.
On 17 October 2011 the Tribunal ordered that the Applicant's complaint be dismissed in whole, under s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW) ("the ADA") - see Burns v Cunningham [2011] NSWADT 240. It might be noted at this point that on reviewing its reasons for decision of 17 October 2011, the Tribunal has noticed a persistent typographical error in those reasons. In many instances, but not all, instead of referring to s 49ZT or s 49ZS of the ADA, the Tribunal's reasons refer to s 45ZT or s 45ZS of the ADA. There is no s 45ZT or s 45ZS in that Act. In all cases the Tribunal intended to refer to s 49ZT or s 49ZS or some subsection or paragraph of those sections. The Tribunal proposes to reissue the original decision with the section references corrected.
At the hearing of the substantive matter on 20 and 21 September 2011, no application for costs was made or foreshadowed by either party.
By letter dated 15 February 2012 to the Tribunal, the Respondent submitted an application for costs under s 88 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") together with written submissions and two bundles of correspondence, some of which was in evidence on the substantive hearing and some of which is before the Tribunal for the first time. The Applicant has responded to the application for costs by letter dated 20 February 2012, sent to the Tribunal. In his letter the Applicant asked that the costs application be dealt with on the papers and he enclosed his written submissions opposing the awarding of costs. By letter dated 5 March 2012, the Respondent noted that he was content for the costs application to proceed on the papers and made certain submissions in reply. Finally, the Applicant added to his written submissions in reply by a letter dated 9 March 2012 but received by the Tribunal on 13 March 2012.
Each party is content for this application being dealt with on the papers. The Tribunal considers it appropriate in this case to proceed under s 76 of the ADT Act and will do so.
Relevant Statutory Provisions
Section 88 of the ADT Act provides:
88Costs
(1)Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A)Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a)whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i)failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii)failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii)asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv)causing an adjournment, or
(v)attempting to deceive another party or the Tribunal, or
(vi)vexatiously conducting 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)any other matter that the Tribunal considers relevant.
(2)The Tribunal may:
(a)determine by whom and to what extent costs are to be paid, and
(b)order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act2004 or on any other basis.
(3)However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4)In this section, "costs" includes:
(a)costs of or incidental to proceedings in the Tribunal, and
(b)the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
In respect of s 88(3) of the ADT Act, s110 of the ADA provides:
110Tribunal may award costs
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint.
Accordingly, the Tribunal has power to award costs in the present matter, which involved a complaint under the ADA.
Relevant History of the Proceedings
On 5 August 2010, the Applicant lodged a complaint with the Anti-Discrimination Board about articles which appeared in the City Voice's print edition of 4 August 2010 concerning the views of candidates standing for election in the Federal election which was to be held on 21 August 2010. The Respondent was a candidate for election for the Federal electorate of Kingsford-Smith and comments apparently made by him were reported in those articles. The Applicant found the Respondent's comments offensive and believed they amounted to vilification of homosexuals which was unlawful under s 49ZT(1) of the ADA.
The Applicant lodged a second complaint with the Anti-Discrimination Board on 11 August 2010 in respect of an article which appeared in the Southern Courier, 9 August 2010 online edition, and which contained, among other things, an additional comment by the Respondent addressed to homosexuals. On 18 August 2010, the Anti-Discrimination Board notified the Respondent of the complaints and sought his written response to the allegations. He replied at some length by letter which was received by the Board on 29 September 2010. In addition to responding to the allegations made by the Applicant, the Respondent sought to rely on the defence available under s 49ZT(2)(c) of the ADA and raised the implied constitutional right to freedom of political communication referred to in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The Applicant provided his reply by a letter received on 21 October 2010 (although it was dated 26 October 2010).
The Respondent wrote another letter to the Board which was received on 11 November 2010. Conciliation was attempted unsuccessfully through arms length negotiation. On 16 November 2010, the Applicant requested the President of the Anti-Discrimination Board to refer the matters to the Tribunal. The President of the Anti-Discrimination Board referred both matters as one complaint to the Tribunal under s 93C of the ADA. The President's Report was filed in the Tribunal on 24 November 2010.
Referral under s 93C amounts to institution of the proceeding in the Tribunal under s 95(3) of the ADA. That section provides:
95Referral of complaints to Tribunal
(1)A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C.
...
(3)For the purposes of the Administrative Decisions Tribunal Act 1997, the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act.
The first case conference in the Tribunal occurred on 19 January 2011 and a timetable for the filing of points of claim, a reply and evidence was set. The Applicant failed to comply with the timetable. This necessitated the fixing of a new timetable at the second case conference which occurred on 13 April 2011. On that occasion, the Respondent reserved his rights to seek costs against the Applicant in respect of his failure to comply with the original timetable and the resultant delay. Eventually the matter was set down for hearing commencing on 20 September 2011.
The matter was heard on 20 and 21 September 2011 and the Tribunal's decision was published on 17 October 2011. In the result, the Applicant was unsuccessful.
Submissions
The substance of the Respondent's submissions can be summarised (even though this may not reflect the full extent the written submissions) in the following way: it would be fair to award costs in his favour having regard to a number of matters, namely:
(a)the Applicant was "a serial litigant before the Tribunal on the issue of homosexual vilification";
(b)the Applicant delayed the hearing of the matter by failing to comply with the timetable set at the first case conference;
(c)the Applicant's steps to have the Respondent's comments republished, the complaint under the ADA and these proceedings were pursued primarily for the Applicant's "own promotion, seemingly regardless of the effect of such serious allegations on the respondent";
(d)the Applicant asserted that his activities in obtaining republication of the comments and bringing these proceedings were not done in order to gain compensation but to gain a remedy in the public interest and this required those matters, especially his seeking $20,000 in compensation from various persons, to be addressed at some considerable length during the hearing both in cross examination and by the calling of additional witnesses;
(e)these proceedings were "vexatious", in a technical sense - see Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215;
(f)the comments the subject of the complaint "could never amount to the requisite level for the offence provision" and were made in circumstances where the defence provisions of s 49ZT "were bound to succeed regardless of the content of the communication by the respondent";
(g)the Applicant did all of this without regard to "the expense, personally or financially to the respondent".
On these bases the Respondent submitted that the requirements of s 88(1A)(a)(i) and (vi) [the reference to s 88(1A)(i)(v) in the Respondent's submissions appears to be a mistake], (b), (c) and (d) have been made out. In addition, it is said that s 88(1A)(e) is engaged in relation to the fact that the Respondent was an 82 year old man who was exercising his civic right and responsibility to engage in the political process and the Applicant was a "serial litigant".
The Applicant, in reply, raised the question of whether the correct timeframe for making an application for costs had been followed in the present case. In addition, he submitted in substance that:
(a)the Applicant had initiated the proceedings in the "public interest" in that he "was seeking a remedy that would promote tolerance and understanding for homosexual people";
(b)his case was arguable;
(c)he pursued the media and publicised the Respondent's comments to "raise awareness in the media of the issue of homophobia in the community and people in powerful positions responsibility to the Anti-Discrimination Act (NSW)(1977)";
(d)the Respondent refused to engage in arms length negotiation in the Anti-Discrimination Board and was "belligerent and argumentative" during a mediation in the Tribunal;
(e)the making of a costs order against the Applicant might cause a complainant not to pursue a case "for fear of losing and having costs awarded against him or her".
In response, the Respondent noted that he had engaged in good faith in the Tribunal's mediation process and was not "belligerent and argumentative" but rather strove to defend his position vigorously. He also said he had not refused to participate in arms length negotiations in the Anti-Discrimination Board and drew attention to what he perceived as the Applicant's unwillingness to compromise. The Respondent in effect accepted the fairness of the principle that costs orders should not become a disincentive to complainants with a legitimate grievance but drew attention to aspects of the present case that he described as the Applicant's "vexatious behaviour". He rejected the idea that he was a person in a "powerful position" and drew attention to the publicity that he said the Applicant sought in relation to this matter.
The Applicant made some further submissions in his letter dated 9 March 2012 reiterating his reliance on the public interest nature of his complaint in the light of the fact that the Respondent was a candidate in a Federal election. In addition, the Applicant raised what he perceived to be an instance where the Respondent had sought to delay the hearing of this matter by having it referred to the Supreme Court. He noted that the issue of compensation was not relevant to the question of liability and again raised the public interest component of his case.
Time for Making Costs Applications
The issue of when a costs application should be made was raised by the Applicant. In this regard, the Tribunal's Practice Note Number 22, "Costs: Guideline" is relevant. Paragraph 9 of that Practice Note provides:
Parties should tell the Tribunal and the other party that they will be applying for a costs order as soon as they become aware of circumstances which justify an order for costs. If the matter goes to hearing and the application for costs is pursued, the person applying for costs should file and serve a precise statement of the amount of costs actually sought and its components.
Parties are encouraged to advise the Tribunal at the conclusion of the hearing if they wish to make an application for costs. Any such application should be made at the time, even if that application is based on an assumption as to the outcome of the proceedings. The Tribunal will determine the application in the reasons for decision.
Parties are not encouraged to apply for costs after receiving the reasons for decision. Such an application leads to unnecessary delays in the finalisation of the matter. If such an application is made, it should set out the reasons that an application for costs was not made at the conclusion of the hearing. The Tribunal may list the application for an oral hearing or determine the application 'on the papers' that is, without a hearing (see s 76 of the ADT Act).
It will be noted, however, that the Practice Note does not preclude the making of an application for costs after the delivery of a reserved decision, although this practice is not encouraged.
It is not clear to the Tribunal whether the covering letter from the Respondent dated 15 February 2012 was intended to constitute a statement of the reasons that an application for costs was not made at the conclusion of the hearing. If so, it appears to be inadequate. In addition, there is no "precise statement of the amount of costs actually sought and its components" as referred to in paragraph 9 of the Practice Note.
Notwithstanding these apparent failures to comply with the Practice Note, however, the Tribunal is of the view that it has power to award costs, if that should be appropriate in all the circumstances and having regard to the terms of s 88 of the ADT Act.
The Ordinary Rule under s 88
Section 88(1) of the ADT Act has been held to establish the "ordinary rule" (KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8 at [26]) or the "general principle" (AT v Commissioner of Police [2010] NSWCA 131 at [33]) that each party should be bear its own costs in respect of proceedings in the Tribunal.
Nonetheless, under s 88(1A), the Tribunal does have power to award costs "but only if it is satisfied that it is fair to do so having regard to" what is in effect, given the terms of s 88(1A)(e), a non-exhaustive list of relevant factors.
In relation to the application of this section, the Court of Appeal has held in AT v Commissioner of Police [2010] NSWCA 131 at [33]:
That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.
What the Respondent is in effect asking the Tribunal to do is to depart from the ordinary rule or general principle that each party bear its own costs because it is fair to do so having regard to the Respondent's success in the proceedings and:
(a)the Applicant having conducted the proceedings in a way that unnecessarily disadvantaged the Respondent to the proceedings by
(i)failing to comply with an order or direction of the Tribunal without reasonable excuse - s 88(1A)(a)(i); or
(vi)vexatiously conducting the proceedings - s 88(1A)(a)(vi);
(b)the Applicant being responsible for prolonging unreasonably the time taken to complete the proceedings - s 88(1A)(b);
(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 - s 88(1A)(c);
(d)the nature and complexity of the proceedings - s 88(1A)(d);
(e)any other matter that the Tribunal considers relevant being the Respondent's age and the fact that he was engaging in the political process as was his right and responsibility and has been put through these proceedings by a "serial litigant" - s 88(1A)(e).
The Applicant has disputed each of these bases for departing from the general rule.
Is it "Fair" to Depart from the Ordinary Rule?
In addition to the factors identified in s 88(1A) which may justify a departure from the general rule, the Court of Appeal in AT v Commissioner of Police also referred to the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the ADT Act as being relevant.
In the present case, it is the Tribunal's jurisdiction under the ADA in relation to conduct which was alleged to vilify homosexuals which has been invoked. In this regard, it is appropriate to bear in mind the serious and important object at which such laws are aimed. The Appeal Panel in Burns v Laws [2008] NSWADTAP 32 held at [67]:
67.Anti-vilification laws seek to furnish a degree of protection to groups of people historically the subject of unlawful discrimination and deep-seated prejudice resulting in them being treated unequally as compared to other members of the community not having those characteristics. A number of Members of Parliament who spoke in support of the law under notice in this case saw a direct link between the making of vilifying statements about homosexual persons and the occurrence of unprovoked assaults on homosexual persons ('gay bashing') and, sometimes, outright murder. See for example Second Reading of the Bill (a Private Member's Bill), Ms Moore (Member for Bligh), Hansard (Legislative Assembly), 11 March 1993, 657; and the subsequent debate reported 13 April, 29 April, 16 September, 17 November 1993.
It appears to the Tribunal that as a result of this the Tribunal should not by its orders put unnecessary obstacles in the way of potential complainants who legitimately wish to make a complaint under a provision such as s 49ZT of the ADA.
As to the objects of the ADT Act, s 3(b) to (g) of the ADT Act provide:
3Objects of Act
The objects of this Act are as follows:
...
(b)to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
(c)to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,
(d)to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal,
(e)to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,
(f)to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,
(g)to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.
Of those objects, the Tribunal considers that, in matters arising under the ADA, the most significant are (b) and (c). In particular, it is essential that the Tribunal be accessible to persons who wish to raise a complaint of unlawful discrimination.
Having regard to both the nature of the jurisdiction invoked and the objects of the Act, the Tribunal considers it important to bear in mind that if it became a general practice to award costs against unsuccessful applicants in ADA matters, this might well inhibit potential complainants from seeking to invoke the Tribunal's jurisdiction under the ADA and constitute at least a partial barrier to legitimate access.
In addition, the costs orders of the Tribunal should also seek to promote and ensure the efficient, effective, fair, informal and expeditious conduct of matters by the parties and their representatives. This is primarily achieved by awarding costs against a party whose conduct is not conducive to that end.
It is now appropriate to turn to the specific provisions of s 88(1A) upon which the Respondent relies.
The Respondent submits that s 88(1A)(a)(i) applies because the Applicant failed to file and serve his material in accordance with the directions given at the first case conference in this matter. While it does appear that the Applicant did not comply with the first timetable, it is far from clear to the Tribunal why this occurred and whether this had any serious consequences for the Respondent beyond some delay in having the matter ready for hearing. Nor is there sufficient material before the Tribunal for it to be able to conclude that the failure to comply was "without reasonable excuse". Moreover, whilst the Tribunal does not condone a failure to comply with the Tribunal's directions, the Tribunal does not believe that the failure to comply on the part of the Applicant in the present case was so egregious that it could be concluded that the Respondent was thereby "unnecessarily disadvantaged" in its preparation or conduct of the proceedings. As a result, the Tribunal does not accept that the circumstances of the present case fall within s 88(1A)(a)(i).
The Respondent also complains that the Applicant's complaint and the proceedings were "vexatious". This term is not defined in the ADT Act but it has been considered in the context of s 88 in the Tribunal's decision in Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215 where it was held at [14]:
Both parties made allegations that the opposing party had vexatiously conducted the proceedings in terms of s 88(1A)(a)(vi). The term "vexatiously" is undefined. In the absence of any definition, the approach expressed by Roden J in Attorney-General (Vic) v Wentworth [(1988) 14 NSWLR 481] (at 491) provides guidance in determining whether an application is vexatious. His Honour first noted that proceedings may properly be regarded as vexatious on either objective or subjective grounds. His Honour then proceeded to express the test, three alternative bases, in the following terms:
1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
2.They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise;
3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
While there is some force in the Respondent's contention that the Applicant's proceedings should be seen as having been brought for the purpose of annoying or embarrassing the Respondent and in order to publicise the Respondent's comments which caused the Applicant to feel "violated and highly offended" as well as "very upset and hurt", the Tribunal believes it would be a mistake to conclude that the proceedings were not primarily brought for the purpose of having the Tribunal adjudicate on whether or not the Respondent's comments contravened s 49ZT of the ADA. Although it may be correct to find that the Applicant did engage in some self-promotion in relation to his publicising his complaints and the proceedings, this would not deprive the proceedings in this case of their legitimacy because the Applicant's case was not "so obviously untenable or manifestly groundless as to be utterly hopeless" and the proceedings were brought for the purpose of having the Tribunal adjudicate on the complaint. For these reasons, the Tribunal does not find that the Applicant's proceedings were vexatious or that the Respondent was "unnecessarily disadvantaged" thereby, within s 88(1A)(a)(vi).
Section 88(1A)(b), upon which the Respondent also relies, requires that the Tribunal consider "whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings". The Tribunal does not consider that it could conclude on the material before it that the Applicant could be said to have unreasonably prolonged the time taken to complete the proceeding. The President's Report was filed in the Tribunal in November 2010 and the hearing of the matter was completed in 2 days during September 2011. This length of time from institution of proceedings to final hearing does not bespeak unreasonable delay on any party's behalf. The actual hearing time, while it was extended by evidence concerning whether the Applicant sought monetary compensation for himself or not, was not excessive. Moreover, that issue of monetary compensation had some relevance to relief, if the Tribunal had found that s 49ZT had been contravened. Furthermore, the Tribunal does not accept that an order for costs against the Applicant would be necessary or appropriate to promote the objects of the ADT Act identified above.
Another factor specifically identified by the Respondent as justifying an order for costs in his favour was s 88(1A)(c), namely, "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". In the light of the evidence adduced, the detailed and helpful submissions made by senior counsel for both parties and the reasons for the substantive decision in this matter (Burns v Cunningham [2011] NSWADT 240), it could not legitimately be said that the Applicant's complaint, although ultimately unsuccessful, had no tenable basis in fact or law.
Although the Respondent identified s 88(1A)(d) as a further ground upon which a departure from the ordinary rule would be justified in this case, the Tribunal does not believe that there was anything in the nature and complexity of the proceedings which would justify making an order for costs against the Applicant.
The factors which may be taken into account by the Tribunal in deciding whether to award costs under s 88, include other matter that the Tribunal considers relevant - s 88(1A)(e). In this case, the Respondent draws attention to his age and circumstances, the fact that, in making the comments the subject of the complaint, he was exercising his right to participate in our democratic, political processes, his successful defence of the proceedings and the trouble and expense to which he has been put by the Applicant's complaint. It is also noted that instead of treating the complaint confidentially, the Applicant appears to have sought to publicise not only the comments complained of but also the Applicant's part in bringing it to light. Moreover, the Respondent submits that the Applicant is, in regard to such complaints, a "serial litigant" who is interested in self-promotion. It was also suggested that a denial by the Applicant that he had ever sought money from anyone as a result of Respondent's comments and the Applicant's complaint was "inexplicable" and that in some way this reflected badly upon the Applicant and his genuineness in bringing the proceedings.
The Applicant accepts that he has tried to publicise what he saw as a contravention of s 49ZT but he said he did this in the public interest not for his personal gain. The issue of whether and how the Applicant sought compensation in the sum of $20,000 or some other amount from the Respondent or officers of the One Nation Party and some of the Applicant's denial do give rise to some concern on the part of the Tribunal. In all the circumstances, however, the Tribunal believes that the parties may to some extent have been at cross purposes in this regard. The Applicant's point was apparently that he had not sought the $20,000 for himself but rather for a charity whose aims he supported. The Respondent's witnesses gave evidence of demands for the payment of such a sum in order to resolve the complaint or make it go away, to put it colloquially. These two positions are not necessarily contradictory. In any event, the Tribunal would not conclude on this material that the Applicant was not genuinely seeking to have the matter determined by the Tribunal but was rather seeking only to advance his own pecuniary and publicity interests.
It is the case that the Applicant has been a party to proceedings before the Tribunal and the Appeal Panel in relation to a number of matters arising under the ADA. These include: Burns v Dye [2002] NSWADT 32 (12 March 2002), Burns v Laws (No 3) [2007] NSWADT 164 (27 July 2007), Burns v Laws (No 4) [2007] NSWADT 220 (25 September 2007), Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267 (10 November 2010), Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 (22 November 2004), Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24 (16 February 2005), Burns v Laws (EOD) [2008] NSWADTAP 32 (16 May 2008) and Burns v Nine Network Australia Pty Ltd (GD) [2011] NSWADTAP 25 (20 May 2011). Whether or not this makes the Applicant a "serial litigant" and what flows from this is another matter.
It is perhaps relevant to note here the comment by Logan J in the Federal Court of Australia in Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305 at [2] in relation to a person described as a "serial litigant" in that Court, that "there is no quota on the number of justiciable grievances a person may bring to court". It is seeking to reagitate matters already decided against a party which might legitimately attract criticism rather than the mere fact of bringing a large number of proceedings. In all the circumstances, the Tribunal in this instance accepts that the Applicant's complaint was not an attempt in substance to reagitate matters already decided against him.
It might be observed here that if the Applicant continued to make complaints of homosexual vilification on grounds that were substantially the same as those rejected in other cases in circumstances which justified the conclusion that, although he knew he was going to fail, he pursued the complaint only to cause embarrassment, expense and annoyance to the respondents in those cases, he might well be ordered to pay costs in those cases.
As the Tribunal's decision in this matter demonstrates, not every comment disagreeing with or disapproving of the homosexual lifestyle constitutes homosexual vilification within s 49ZT. It is worthwhile to note the Speech of the Member of Parliament who moved that the Anti-Discrimination (Homosexual Vilification) Amendment Bill be read a second time, the Hon Clover Moore MP. Hansard for the Legislative Assembly, 11 March 1993 at page 658 records her words as follows:
The bill will not make it illegal for people to talk about homosexuality. It will not prevent people from stating that they disagree with or disapprove of lesbian or gay lifestyles. The bill will not affect people who state their belief that homosexuality is a sin or who quote from the Bible to support their argument.
Finally, the Tribunal notes that on one of the Respondent's principal grounds of defence, namely that there was no "public act" by the Respondent within the meaning of s 49ZT(1) of the ADA, he was unsuccessful.
In the light of the ordinary rule in cases arising under the ADA, the public interest in ensuring access to the Tribunal in such matters and not inhibiting the making of complaints by the inappropriate threat of costs orders against unsuccessful applicants and in all the circumstances referred to above, the Tribunal is not satisfied under s 88(1A) of the ADT Act that it would be fair to award costs against the Applicant in respect of these proceedings.
Accordingly, the Tribunal proposes to dismiss the application for costs.
Orders
Accordingly, the order of the Tribunal will be:
1.the Respondent's application for costs be dismissed.
2.there be no order as to costs on this application.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 26 March 2012
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