Burns v Laws (No 3)

[2007] NSWADT 164

CITATION:	Burns v Laws (No 3) [2007] NSWADT 164
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT John Laws
FILE NUMBER:	051044
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	1 May 2007
DATE OF DECISION:	27 July 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); Mooney L - Non Judicial Member; Quayle C - Non Judicial Member
CATCHWORDS:	Vilification - Homosexual
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Anti-Discrimination Act 1977 Supreme Court Act 1970
CASES CITED:	Battenberg v The Union Club (No 3) [2005] NSWADT 126 Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Burns v Dye [2002] NSWADT 32 Burns v Laws [2005] NSWADT 229 Burns v Laws (No 2) [2007] NSWADT 47 Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Collier v Sunol (No 2) [2006] NSWADT 88 Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4 Sunol v Collier (EOD) [2006] NSWADTAP 51 Wentworth v Wentworth, unreported, Court of Appeal, NSW, 21 February 1996 (BC9600215) Williams v Spautz (1992) 174 CLR 509 Y v W and X (EOD) [2003] NSWADTAP 44
REPRESENTATION:	APPLICANT N Llewellyn, solicitor RESPONDENT G Renolds SC and P Kulevski, barrister
ORDERS:	1. The Respondent is to pay to the Applicant the costs of the Respondent’s application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.; 2. There will be no order as to the costs of this application by the Applicant.

Introduction

1 This judgment relates to an application for costs by the Applicant, Mr Gary Burns. In the complaint to which these proceedings relate, Mr Burns alleged that the Respondent, John Laws, who is a high-profile radio commentator, unlawfully vilified homosexual men in the course of a radio program broadcast on Radio 2UE, a Sydney radio station, and on an associated network of radio stations across Australia.

2 The program in question was broadcast on the morning of 3 November 2004. On 17 November 2004, Mr Burns forwarded his complaint to the Anti-Discrimination Board. On 31 March 2005, the President of the Board, having determined that the matter could not be resolved through conciliation, referred the complaint to the Tribunal.

3 On 10 June 2005, Mr Burns filed Amended Points of Claim in which he asserted that statements made by Mr Laws in the broadcast on 3 November 2004 and set out in an annexed transcript constituted unlawful homosexual vilification under s. 49ZT of the Anti-Discrimination Act 1977 (‘the AD Act’).

4 These statements made no reference to Mr Burns. They related in large measure to an American man called Carson Kressley, who had appeared in television program broadcast in Sydney on the evening of 2 November 2004 and who in the course of that program had more than once drawn attention to his own homosexuality.

5 Section 49ZT(1), which is qualified by a number of defences set out in s. 49ZT(2), provides:-

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

6 In the Amended Points of Claim, Mr Burns stated that he was a homosexual man and was entitled to bring these proceedings. He alleged that Mr Laws, by virtue of the ‘substance, tone of voice and/or manner of presentation’ in the broadcast, had ‘incited hatred towards, serious contempt for and/or severe ridicule of a person or group of persons (of whom the Applicant was one), on the ground of the homosexuality of the person or members of the group’. He alleged further that he had suffered damage to feelings, distress, anger, insult and mental suffering in consequence of the broadcast. He sought from the Tribunal orders that Mr Laws should pay damages totalling $25,000 and costs, and should apologise for his statements, both in the radio session that he presented each morning and in various newspapers.

7 On 16 June 2005, Mr Laws applied to the Tribunal for an order summarily dismissing the complaint under s. 102 of the ADT Act. The ground put forward was that the predominant purpose of Mr Burns in instituting and maintaining these proceedings was an improper or collateral purpose, namely, that of obtaining publicity for himself.

8 Section 102 states that the Tribunal, at any stage in proceedings relating to a complaint, may dismiss the complaint on any ground on which the President of the Anti-Discrimination Board may decline a complaint under s. 92(1)(a)(i) or (ii) or s. 92(1)(b). Under s. 92(1)(a)(i), a ground on which the President may decline a complaint is that it is ‘frivolous, vexatious, misconceived or lacking in substance’.

9 This application was heard on 1 and 2 August 2005, before the case had been set down for a substantive hearing. The Tribunal was constituted by Deputy President Chesterman, Non-judicial Member Houlahan and Non-judicial Member Quayle.

10 In a decision delivered on 10 October 2005 (Burns v Laws [2005] NSWADT 229), the Tribunal dismissed the application. It ordered that the costs of the application be reserved.

11 Before the substantive hearing of the case, Ms Houlahan ceased to be a member of the Tribunal. She was replaced on the Panel by Non-judicial Member Mooney.

12 On 1 March 2007, the Tribunal delivered its judgment on the substantive aspects of the case (Burns v Laws (No 2) [2007] NSWADT 47). By majority, it dismissed Mr Burns’ complaint. At [287], it gave directions for the filing of costs applications and supporting submissions, indicating that the matter of costs would be resolved ‘on the papers’, pursuant to s. 76 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) unless either party applied, giving reasons, for a hearing to take place.

13 This judgment of the Tribunal is the subject of an appeal by Mr Burns to an Appeal Panel.

14 On 27 March 2007, Mr Burns filed an application, with short supporting submissions, for an order that Mr Laws pay the costs of the summary dismissal proceedings that had been determined by the Tribunal on 10 October 2005. On 1 May 2007, Mr Laws filed short submissions, referring both to the costs of the summary dismissal proceedings and (very briefly) to the costs of the substantive proceedings. In neither of these sets of submissions was a request made for a hearing.

15 The issue of costs in proceedings under the AD Act is governed by s. 110 of that Act, which states:-

(1) Each party to an inquiry is to pay his or her own costs, except as provided by this section.

(2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

16 It is apparent from the wording of this section that the presumption governing costs awards in most civil proceedings – i.e., that ‘costs follow the event’ – is not applicable.

The scope of the present judgment

17 In this judgment, we deal only with the application filed by Mr Burns, relating to the costs of the interlocutory proceedings in which the Tribunal rejected Mr Laws’ application for summary dismissal of the complaint. We do so even though the arguments put to us by Mr Laws include a contention that ‘the appropriate order in relation to costs is one that considers the result in terms of the entirety of the proceedings in which he was ultimately successful’.

18 We consider the approach that we have outlined to be appropriate after taking due account of the principle, applying in cases where costs ‘follow the event’, that prima facie ‘the effect of reserving the costs of interlocutory proceedings is to make them recoverable as the costs of the successful party in the proceedings’: Ritchie’s Uniform Civil Procedure, para [42.7.15]. But the interlocutory application by Mr Laws for summary dismissal of the complaint was, in our judgment, ‘collateral to the main proceedings’. In this situation, as stated in the same paragraph of Ritchie and by Clarke JA in Wentworth v Wentworth, unreported, Court of Appeal, NSW, 21 February 1996 (BC9600215) at para 42, it will or may be appropriate for a court or tribunal to make ‘a contrary order’.

19 In this context, a further factor of prime importance is that our decision in the interlocutory proceedings, in contrast to our decision in the main proceedings, is not the subject of an appeal.

20 We would add that we are not in a position to deal with the costs of the substantive hearing. The only argument put to us by either party on this question was the following sentence at the conclusion of Mr Laws’ submissions: ‘In the alternative, if the Tribunal decides to depart from the prima facie position in respect of the interlocutory hearing then it would be appropriate to make a similar order in favour of Mr Laws in respect of the main proceedings.’

21 It is for these reasons that we believe it to be appropriate now to deliver a decision on Mr Burns’ costs application and to confine our decision to that application.

Relevant principles regarding costs

22 We have already set out the terms of s. 110 of the AD Act. Most of the Tribunal’s decisions interpreting this provision and its predecessor (s. 114) have been in cases concerned with discrimination in areas such as work, education, accommodation or the provision of goods and services. In relatively few of them has the sole or principal complaint been one of vilification. In none of them, as far as we have been able to ascertain, has it been suggested that the principles to be applied in vilification cases should differ from those generally applicable under the Act.

23 In Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 at [63 – 67], the Appeal Panel said of the predecessor to s. 110 that there is ‘a presumption in subsection (1) and a discretion in subsection (2)’. The discretion, it said, must be exercised judicially, taking account of all considerations that may properly be considered to be relevant. To justify a costs order, there must be ‘something over and beyond a normal course of circumstances’.

24 In Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24, a case which like the present one was concerned with homosexual vilification claimed to have occurred in a radio broadcast, the Tribunal awarded costs to the successful applicant. The judgment contains the following discussion of the issue of costs:-

40 There is a presumption against costs being awarded unless, in our view, circumstances justify such an order (s114 Anti-Discrimination Act 1977 ). No authority or rule can determine whether in any particular case an order should be made: Cleary Bros (Bombo) Pty Ltd -v- Cvetko vski (EOD) [2001] NSWADTAP 10 at [69]. A combination of circumstances is required in order to justify an award of costs ( Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 at [21]), such as those set out in Borg at [22].

41 There is no suggestion that the manner in which the respondent has conducted the proceedings in this matter justify a costs order. Other considerations do, however, arise.

42 As no amount of damages has been awarded, costs that the applicant is liable to meet necessarily exceed an award. That an award of damages was not made does not reflect adversely on the merits of the complaint; rather it is a function of the public interest nature of the complaint, itself a consideration in whether a costs order is justified.

43 The matter has required us to decide what we consider to be an important public interest consideration. As news media reports provided to the Tribunal by the respondents show, the respondents have themselves said that the matter is one that pits a conception of freedom of speech against Parliament’s attempts to limit what can lawfully be said in public.

44 It will often be the case that a vilification complaint deals with such a tension, and it cannot be that costs would ordinarily be awarded in such matters. But it is not necessarily the case that a vilification complaint, although involving a public act, will itself raise matters of public interest. The ‘freedom of speech’ issue in this matter is particular in that it arises in relation to public radio, and concerns the way in which high profile public commentators can conduct themselves within constraints on their right to express opinions publicly. There has been only one previous vilification complaint about a radio broadcast decided in this Tribunal, and this decision addresses the likelihood of high profile public commentators inciting serious ridicule.

45 The matter has as well required us to consider an important matter of legal interpretation that has been a matter of some uncertainty in this jurisdiction, relating to the ordering of an apology, a remedy that is arguably particular to vilification complaints.

46 We are satisfied that the circumstances justify the making of a costs order.

25 Both the substantive decision of the Tribunal in the applicant’s favour in Burns v Radio 2UE and its decision regarding remedies and costs are subject to appeal.

26 In Collier v Sunol (No 2) [2006] NSWADT 88, also a case concerned with homosexual vilification, the Tribunal listed at [34] the following factors as relevant to a decision under s. 110:-

Whether the applicant’s costs exceed or are disproportionate to the amount of damages awarded.

The manner in which the parties have conducted the proceedings.

Whether the case raises any important public policy or public interest considerations.

Whether the proceedings determine or clarify an important question of law.

27 In referring to these factors, the Tribunal relied on Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35. That decision was approved by an Appeal Panel in Y v W and X (EOD) [2003] NSWADTAP 44 at [39]. The Tribunal’s decision in Collier v Sunol (No 2) that costs should be awarded was upheld on appeal: see Sunol v Collier (EOD) [2006] NSWADTAP 51 at [55 – 58].

28 In other decisions relating to s. 110 or its predecessor (see e.g. Battenberg v The Union Club (No 3) [2005] NSWADT 126 at [9 – 10]), it has been held that the criteria to be applied are similar to those governing awards of costs pursuant to the requirement of ‘special circumstances’ in s. 88(1) of the ADT Act, and that it is therefore appropriate to take account of factors listed in the Tribunal’s Practice Note on Costs (Practice Note 12, reissued October 2006). Those factors are as follows:-

whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as -
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

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.

29 We refer finally to the Appeal Panel’s decision in Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4. In that case, the applicant, having lodged a complaint alleging unlawful sexual discrimination and victimisation, subsequently withdrew it. Before she did this, the respondent applied for an order under s. 111 of the AD Act, which is the predecessor to s. 102, that the complaint be summarily dismissed. This application was listed for hearing and the applicant attended on the day stipulated. The respondent then withdrew the application. Following the later dismissal of the complaint as a whole on account of its being withdrawn, the applicant applied for the costs of the aborted application by the respondent for summary dismissal.

30 This application for costs was rejected by the Tribunal. In short oral reasons, it stated that the applicant should have sought costs at the time of the hearing of the application for summary dismissal and that the costs application had ‘no merit’. The applicant appealed against this decision.

31 At the time of this case, costs in AD Act proceedings were governed by s. 114, the predecessor to s. 110. Its wording was as follows:-

(1) Except as provided by section 111(2) and subsection (2), each party to an inquiry shall pay his or her own costs.

(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

32 Section 111(2), one of the subsections mentioned in s. 114(1), provided that where a complaint was dismissed under s. 111(1), the Tribunal might make an order for costs against the complainant. (No such provision appears in s. 102, the current equivalent.)

33 The Appeal Panel dismissed the applicant’s appeal, on the ground that the Tribunal had not been shown to have erred in law. In its judgment (Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4) at [25] and [30], it made the following observations:-

25… The making of an application for summary dismissal is one that could be argued to lie outside the ordinary course of preparing a matter for hearing. Where a respondent’s summary dismissal application proves to be wholly without merit then that may provide a circumstance warranting an order for costs in favour of the complainant.

30… we note that the ADA in s 111 provides for respondents who succeed in an application to apply for a costs order against the complainant. But the provision is silent in relation to unsuccessful summary dismissal applications. That in our view supports an interpretation that the legislature saw unsuccessful summary dismissal applications as ones to be dealt with by reference to the general principle found in s 114.

34 The arguments made in Mr Burns’ submissions were these: (1) that preparation for and attendance at the hearing of Mr Laws’ unsuccessful application for summary dismissal (for which Mr Laws had engaged senior counsel) exposed Mr Burns to liability for substantial legal fees, which he was not in a position to pay from his own funds; (2) that the question raised in the application could have been left to the substantive hearing of the complaint; (3) that the grounds put forward in the application were ‘hurtful’ to him; (4) that in making the complaint he had acted ‘in relation to the broader public interest giving meaning and spirit to’ the terms of the AD Act; and (5) that the fact he was unsuccessful in the substantive proceedings (subject to appeal) should not debar from recovering the costs of this failed application by Mr Laws.

35 In maintaining that ‘the prima facie position’ (i.e., no costs order) should apply, the submissions filed by Mr Laws contended (a) that there had been no suggestion that his application for summary dismissal was ‘not brought for good reason’ or that there was no reasonable basis for it; and (b) that he had in fact succeeded in showing that Mr Burns had ‘partly acted with the collateral purpose of attracting publicity for himself in bringing the proceedings’.

36 In advancing the latter contention, Mr Laws’ submissions referred to paragraphs [80] and [84] of the Tribunal’s judgment (Burns v Laws [2005] NSWADT 229) rejecting his application for summary dismissal. It is useful here to quote those two paragraphs, the first of which sets out the principal ground for the Tribunal’s decision:-

80 Although the material assembled by Mr Reynolds [counsel for Mr Laws] clearly showed a desire on Mr Burns’ part that his conduct in instituting and maintaining these proceedings should attract a significant amount of publicity, we consider that Mr Laws has not discharged the ‘heavy onus’ of proving to the requisite standard that Mr Burns’ predominant purpose was or is that of garnering publicity for himself. Our jurisdiction to grant Mr Laws’ application for summary dismissal on the ground of improper or collateral purpose is, as the High Court said in Williams v Spautz (1992) 174 CLR 509 at 529, ‘one to be exercised only in the most exceptional circumstances’. Our decision must for these reasons be that the application fails.

84 On our reading of the totality of this evidence, Mr Burns’ purposes in instituting and maintaining these proceedings have included the purpose of garnering publicity for himself, but have included a number of other purposes as well.

37 In accordance with principles already set out (see [18] above) with reference to costs regimes where costs ‘follow the event’, we agree with the proposition in Mr Burns’ submissions that the fact he was unsuccessful in the substantive proceedings (subject to appeal) is not enough of itself to debar him from recovering the costs of Mr Laws’ unsuccessful application for summary dismissal. This proposition is consistent, to say the least, with a comment of the Appeal Panel in Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4 at [25] (see [33] above).

38 At the same time, it is clear to us that the ‘prima facie position’ as regards the costs of this application for summary dismissal is, as Mr Laws submitted, that each party should pay his own costs. This follows from the express terms of s. 110 of the AD Act, as interpreted in Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10, and from the Appeal Panel’s comments in Graham at [30], albeit that the relevant statutory provisions at the time of these decisions differed in wording from their present equivalents.

39 Having regard to the foregoing discussion (at [22 – 28]) of the circumstances in which it is or may be appropriate to depart from ‘the prima facie position’, we discern two features of the present case that are of particular relevance to our decision.

40 The public interest components of the proceedings. The first is what the Tribunal in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 called (at [42]) ‘the public interest nature’ of the complaint made by Mr Burns. This matter was briefly mentioned in his submissions to us.

41 As indicated in the Amended Points of Claim and the accompanying transcript (see [3 – 6] above), Mr Burns did not portray himself – and indeed could not have portrayed himself – as the specific target of the statements by Mr Laws alleged to have constituted vilification. His case, as subsequently formulated in the substantive proceedings (see Burns v Laws (No 2) [2007] NSWADT 47 at [38 – 47]), was based on a claim that these statements, which were disseminated to the public at large by public radio, incited severe ridicule of homosexual men generally, on the ground of their homosexuality. The nature and potential scope of the harms that widely disseminated vilification will or may inflict on a target group such as homosexual men are well recognised (see eg the discussion of this topic with reference to racial vilification in Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia, 2002, 22- 24).

42 Similarly, although in the Amended Points of Claim Mr Burns sought an award of damages on account of alleged damage to his feelings, distress, anger, insult and mental suffering, he also sought the remedy of an order requiring apologies by Mr Laws to be published on Radio 2UE and its associated network and in newspapers distributed both nationally and in Sydney. The persons standing to benefit principally from this remedy, if it were granted, would be homosexual men within the areas to which the apologies were published.

43 In its judgment dismissing the application for summary dismissal (see Burns v Laws [2005] NSWADT 229 at [85 – 90]), the Tribunal in fact drew attention to the element of public interest inherent in these remedies that Mr Burns claimed. It pointed out that the conduct relied on by Mr Laws in trying to demonstrate that Mr Burns’ predominant purpose in suing was to garner publicity for himself included steps taken by Mr Burns (notably, the steps described in the judgment at [30 – 35]) to persuade Mr Laws to engage in broadcast debates with him and/or with other representatives of the homosexual community about the harm that homosexual vilification in the media inflicts or may inflict upon homosexual people.

44 The Tribunal found, at [86], that the purposes underlying such conduct included ‘seeking to induce high-profile, influential and powerful persons, such as Mr Laws, to act in the future in what Mr Burns regards as a responsible manner towards homosexual people and… educating the community generally about the role that, in his opinion, vilification of homosexuals plays in encouraging homophobic conduct’. The Tribunal expressed the opinion (at [90]) that these purposes motivating Mr Burns ‘could fairly be regarded as purposes within the scope of the remedy of public apology that he seeks in these proceedings’.

45 In these ways, both the legal ground of Mr Burns’ complaint – incitement of severe ridicule of homosexual men generally – and a remedy on which he placed major emphasis – that of apologies published in the media – had an important public dimension. Although not suing as a representative, in a technical legal sense, of a class or group defined by reference to homosexuality, Mr Burns both alleged a wrong inflicted on such a class or group and sought a remedy designed to redress the harm done, so far as possible. In this respect, the present case is to be distinguished from some of the past cases in the Tribunal involving homosexual vilification (for example, Burns v Dye [2002] NSWADT 32) and from the majority of Tribunal cases in which unlawful discrimination in areas such as work, education or accommodation has been alleged.

46 One final observation should be made in this context. If the applicant to the Tribunal had been another homosexual man, entitled (as Mr Burns was) to bring the proceedings, and this applicant had not been susceptible at all to a claim that his sole or predominant purpose in suing was ‘collateral’ or improper, Mr Laws would have had no basis at all for the type of application that he in fact made with a view to cutting short the present proceedings. Unless some other type of interlocutory application having the same outcome had been available to Mr Laws, the Tribunal could have proceeded directly to the merits of a complaint that alleged harm to a substantial group within the community and sought the remedy of apologies published widely within the community.

47 Prolonging the proceedings. As indicated above (see [26] and [28]), a factor to be taken into account in deciding whether costs should be awarded under s. 110 of the ADT Act is whether the party against whom an award is sought has engaged in conduct unreasonably prolonging the proceedings.

48 There is no doubt that the unsuccessful application by Mr Laws for summary dismissal had the effect of both prolonging the proceedings and rendering them more costly to the parties. The question is whether it did so unreasonably or improperly, so as to warrant, or strengthen the case for, awarding costs against him.

49 We agree with the submission by Mr Laws that the Tribunal, in its judgment dismissing the application, did not indicate that it considered the application to be unmeritorious. The evidence adduced by Mr Laws led to a finding, at [84], that ‘Mr Burns’ purposes in instituting and maintaining these proceedings have included the purpose of garnering publicity for himself’, alongside other purposes.

50 Nevertheless, as the Tribunal pointed out at [80] (see the passage quoted above at [36]), the onus placed on Mr Laws was a heavy one and the jurisdiction that he sought unsuccessfully to invoke was one ‘to be exercised only in the most exceptional circumstances’.

51 Furthermore, as the Tribunal made clear at [10 – 11], his endeavour to obtain an order by the Tribunal dismissing Mr Burns’s complaint through the exercise of this ‘exceptional’ jurisdiction did not rely on any claim that the complaint lacked merit. By contrast, most applications for summary dismissal under s. 102, such as the Appeal Panel had in mind when commenting on them in Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4, do call into question the merits of the complaint. In contrast, therefore, to the situation normally arising when an unsuccessful application for summary dismissal is made, the applicant in this case (Mr Burns) was required to assess evidence and prepare submissions that had virtually no relation to the evidence and submissions that were relevant later to the prosecution of his complaint in the substantive hearing.

Our conclusions

52 This is a case, as we have said, in which an application for summary dismissal of a complaint under the ADT Act was unsuccessful but did not wholly lack merit. Normally each party in such circumstances would pay his or her costs of the application. But the present case is unusual, by virtue particularly of the two matters that we have just described. On account of these factors, we are more inclined than we would normally be to view unfavourably the respondent’s decision to make the application.

53 Our decision is that Mr Burns should be awarded his costs incurred in defending successfully the application by Mr Laws for summary dismissal of the complaint. The order should be for costs on a party-party basis, as agreed or assessed.

54 In summary, our reasons for finding that there are ‘circumstances that justify’ an order for costs within the meaning of s. 110(2) of the ADT Act, and for therefore departing from the ‘prima facie position’ set out in s. 110(1), are as follows.

55 The application by Mr Laws prolonged the proceedings significantly and rendered them more costly to the parties. It sought unsuccessfully to invoke a jurisdiction that is exercisable by the Tribunal only in ‘exceptional’ circumstances. Its aim was to bring to an immediate close, on grounds unrelated to the merits of the case against Mr Laws, proceedings based on a complaint alleging that he had engaged in unlawful conduct (vilification) causing harm to a substantial section of the public (homosexual men) and should therefore be made subject to remedies including an order designed to repair this harm, so far as was possible (i.e., the dissemination of apologies to the public). While the complaint itself was ultimately dismissed, it undoubtedly had merit (as is demonstrated simply by the fact that our decision to dismiss it was a majority decision). Another homosexual man, instead of Mr Burns, might well have brought before the Tribunal a complaint against Mr Laws which was in the same terms as the complaint lodged by Mr Burns and therefore contained the same public interest components. In such event, it is probable that there would have been no grounds whatsoever for an application such as Mr Laws made in this case and the Tribunal could have proceeded without delay to a determination of the merits of the complaint.

56 Neither party applied for the costs incurred in relation to this application by Mr Burns. We make no order as to these costs.