Burns v Media Options Group Pty Ltd and Ors (No.2)

This matter concerned an application for costs by the respondents, Media Options Group Pty Ltd and Ors, against the applicant, Burns, following substantive proceedings. The dispute arose from allegations made by the applicant against the respondents, which were ultimately unsuccessful. The application for costs was heard by Judge Nicholls.

The primary legal issue before the Court was whether the respondents were entitled to an order for costs, and if so, on what basis. This involved considering the conduct of the applicant and the respondents during the proceedings, particularly in light of findings made in the substantive judgment regarding the applicant's evidence and the second respondent's admissions about a document provided to the Australian Human Rights Commission. The Court also had to assess whether the applicant's pursuit of the proceedings was "desultory" and based on untruthful allegations, as suggested by the respondents.

Judge Nicholls considered the principles governing costs orders, referencing the decision in *Wong*, which held that an unsuccessful applicant who pursued a case in a "desultory way" and with untruthful allegations should be dismissed with costs and that the court should express its disapproval. The Court noted that the applicant referred to findings in the substantive judgment that the second respondent's evidence was not to be believed and that the second respondent admitted a document sent to the AHRC was "not correct" despite relying on it in the hearing. The Court observed that the respondents' submissions continued an approach of making "counter allegations" against the applicant's conduct rather than directly addressing the applicant's assertions, particularly concerning the second respondent's admissions about the document and its reliance during the hearing. The Court found that some of the respondents' submissions were unhelpful to the consideration of costs and appeared intended to argue that the applicant unnecessarily prolonged the hearing.