Leech v Sydney Water Corporation

[2010] NSWADT 198

CITATION:

Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198

DIVISION:

Equal Opportunity Division

PARTIES:

Applicant:
Sam Ekermawi

Respondent (file 061083):
Harbour Radio Pty Ltd

First Respondent (files 071003, 071004):
Nine Network Australia Pty Ltd

Second Respondent (files 071003, 071004):
Harbour Radio Pty Ltd

FILE NUMBER:

061083; 071003; 071004

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

21 July 2010

 
DATE OF DECISION: 

4 August 2010

BEFORE:

Chesterman M - Deputy President; Kelleghan D - Non-Judicial Member; Schneeweiss J - Non-Judicial Member

CATCHWORDS:

Costs – equal opportunity – racial vilification

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED:

AT v Commissioner of Police [2010] NSWCA 131
Comcare v Fiedler [2001] FCA 1810
Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226
Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351
Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145
Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334
Ekermawi v Nine Network Television Pty Ltd and anor [2007] NSWADT 295
Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335
Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263
Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548
Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71
Tu v University of Sydney (No 2) [2002] NSWADT 22

REPRESENTATION:

Applicant Representative:
In person

Respondents Representative:
A Stewart, solicitor

ORDERS:

The Applicant is to pay the Respondents’ costs of these proceedings incurred after 9 November 2009, as agreed or assessed.

REASONS FOR DECISION

Introduction

1 These three Tribunal matters, which were heard in conjunction, concerned complaints made by the Applicant, Mr Sam Ekermawi, under the Anti-Discrimination Act 1977 (‘the AD Act’) against two Respondents, Harbour Radio Pty Ltd and Nine Network Australia Pty Ltd. The grounds of his complaints were that the Respondents, by broadcasting certain statements in radio or television programs within New South Wales during July and August 2005, contravened the provisions against racial vilification contained in section 20C of this Act.

2 The hearing of the complaints before us took place on 31 November, 1 December and 2 December 2009. At the conclusion, we gave directions for the filing of supplementary submissions.

3 In a decision delivered on 10 June 2010 (Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 – hereafter ‘the principal decision’), we dismissed Mr Ekermawi’s complaints.

4 In this decision at [75], we noted that the Respondents, if successful, wished to be heard on the matter of costs. We gave directions for submissions on this matter to be filed and served and indicated that we would determine this matter ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

5 On 30 June 2010, the Respondents filed submissions in support of an application for an order that Mr Ekermawi pay their costs. On 1 July, they filed a formal application to this effect. Mr Ekermawi filed submissions in reply on 21 July.

6 The present decision relates to this application for costs made by the Respondents.

Relevant aspects of the principal decision

7 In the principal decision at [3 – 24], we outlined the relatively complex procedural history of this matter. For present purposes, it is sufficient to refer here to the following elements of this history:-

(a) These Tribunal proceedings stemmed from a complaint made by Mr Ekermawi to the Anti-Discrimination Board (‘the Board’) on 26 July 2005 and two further complaints made by him to the Board on 19 August 2005.

(b) In the Reports of the President of the Board on these complaints (‘the President’s Reports’), the President declined each complaint under section 92(1) of the AD Act, on the ground that it was lacking in substance.

(c) In two separate determinations, however, the Tribunal subsequently granted leave under section 96 for the complaints to proceed, as files 061083, 071003 and 071004 respectively.

(d) The first of these determinations, relating to the first complaint, was given at a case conference on 8 November 2006.

(e) The second determination, relating to the second and third complaints, was given in a decision published on 12 December 2007 ( Ekermawi v Nine Network Television Pty Ltd and anor [2007] NSWADT 295).

(f) T he Tribunal, having dismissed the first complaint on 18 July 2007 on the ground of want of prosecution, decided on 7 February 2008 that on grounds of procedural fairness it should be revived (see Ekermawi v Harbour Radio Pty Ltd trading as 2GB Radio [2008] NSWADT 49).

8 Having set out in the principal decision at [25] the provisions of the AD Act (i.e., sections 20B, 20C and 88 and the definition of ‘race’ in section 4) that were of direct relevance to the proceedings, we described (at [26 – 34] and [37]) the evidence that we admitted at the hearing. This principally comprised extracts from the transcripts of broadcasts given on radio or television by three well-known presenters: Mr Alan Jones, Mr Chris Smith and Mr Ray Hadley. (We should add that recordings of the relevant parts of the broadcasts had been played during the hearing.) It also included the President’s Reports and some oral testimony by Mr Ekermawi, to the effect that he had been born in Palestine, he was a Muslim and he considered himself to belong to a long-standing ethnic and religious community that had its origin in Palestine and the Middle East.

9 At [36], we noted that ‘the issue of race was a major topic of contention between the parties’. At [38 – 51], we outlined the competing submissions of the parties on a number of questions arising from the definition of ‘race’ in section 4 of the Act, the use of that term in section 20C(1) (in which the ingredients of unlawful racial vilification are specified) and the provisions of section 88 (in which relevant limits are placed on the range of persons who may make a vilification complaint).

10 At [52 – 55], we set out in the following terms our reasons for dismissing Mr Ekermawi’s complaints of unlawful racial vilification:-

52 Although we do not accept all of the arguments that Mr Stewart [who appeared for the Respondents] advanced, we agree with him that Mr Ekermawi has failed in each of his complaints to satisfy key requirements of the [AD] Act in which the definition of ‘race’ is involved and that for this reason the complaints must be dismissed. Our conclusions in this regard stem from three propositions, which we will now state and explain.

53 First, vilification of Muslims does not fall within section 20C(1), because Muslims are not a ‘race’ as defined in section 4 of the Act. The reason, as the Tribunal said in Khan [i.e., Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131] at [18], is that Muslims ‘do not share common racial, national or ethnic origins’ and are therefore not an ethno-religious group such as the definition embraces. In so ruling, we follow the decisions, commencing with Khan , that are listed above at [44]. We are unaware of any recent authority to the contrary. It follows that any statements broadcast by the Respondents that generated negative feelings towards Muslims generally, or any group of Muslims, on the ground of their being Muslims could not amount to unlawful racial vilification.

54 Secondly, Mr Ekermawi does not belong to the one category of Muslims – Muslims of Pakistani origin – that (a) was targeted in the Respondents’ broadcasts and (b) might well constitute an ethno-religious group within the definition in section 4. Accordingly, any statements broadcast by the Respondents that generated negative feelings towards Muslims of Pakistani origin, or any group within this category, on the ground of their being Muslims of Pakistani origin, cannot provide the basis for a claim by Mr Ekermawi that section 20C(1) was contravened. Not being a Muslim of Pakistani origin, he does not have, and could not claim to have, ‘the characteristic that was the ground for the conduct that constitutes the alleged contravention’, as required by section 88.

55 Thirdly, none of the statements broadcast by the Respondents focused on the one category of Muslims that (a) included Mr Ekermawi and (b) might constitute an ethno-religious group under section 4. This category comprises Muslims of Palestinian origin. Mr Ekermawi would have standing under section 88 to sue with respect to any broadcast statements that generated negative feelings towards Muslims of Palestinian origin, or any group within this category, on the ground of their being Muslims of Palestinian origin. But no such statements were broadcast.

11 In reaching these conclusions, we rejected two reasons, put to us by Mr Ekermawi, why Muslims should be recognised as an ethno-religious group under the AD Act. These reasons, outlined in the principal decision at [40 – 42], were (a) that Jews had been held to have a common ethnic origin under Commonwealth racial discrimination legislation, and (b) that in the Second Reading Speech for legislation amending the AD Act in 1994 the Attorney General had referred to Muslims, as well as Jews and Sikhs, as instances of ethno-religious groups under the Act.

12 The remaining paragraphs of the principal decision chiefly comprised observations by us on a number of other questions that had been dealt with in the parties’ submissions: for example, whether any, and if so which, of the statements broadcast by the Respondents answered the specifications of ‘vilification’ contained in section 20C(1) of the AD Act.

13 We indicated (at [62]) that we did not need to resolve these questions because for the reasons set out in the passage just quoted we had concluded that Mr Ekermawi’s complaints must be dismissed. We added (at [63]) that we could have chosen to resolve them, but had decided not to do so, on grounds mainly arising from the considerations that he was unrepresented at the hearing, his first language was not English and he lacked legal qualifications.

14 In the present context, two further passages in the principal decision are significant.

15 The first of them, paragraph [61], is as follows:-

61 Because our conclusions on the issue of race show that Mr Ekermawi’s complaints were misconceived in law, it may be asked why the Tribunal gave leave for them to proceed after they had been declined by the President of the Board. The answers are as follows. Leave relating to the proceedings in file 061083 was given at a case conference, without (it would appear) any reference being made to the issue of race. In the Tribunal’s decision giving leave relating to the proceedings in files 071003 and 071004 ( Ekermawi v Nine Network Australia Pty Ltd and anor [2007] NSWADT 295), the Tribunal expressly stated at [12] that ‘neither respondent submitted that leave should be refused because Muslims are not covered by the definition of race’. It added: ‘In those circumstances, I have not taken into account the prospects of Mr Ekermawi being able to prove that Muslims come within the definition of “race” in section 4.’

16 Secondly, at [67], we said: ‘We incline to the view, however, that a few passages of the transcripts record the broadcast of material which incited hatred or serious contempt of Muslims on the ground of their adherence to the Muslim faith and therefore would have amounted to unlawful vilification under section 20C(1) if Muslims were a “race”.’ At [67 – 71] we quoted in full or summarised the passages in question. They included a passage, at [71], referring specifically to Muslims of Pakistani origin.

General principles regarding costs

17 By virtue of section 110 of the AD Act, awards of costs in Tribunal proceedings under this Act are governed by section 88 of the ADT Act. So far as is relevant here, section 88 provides:-

(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:…

(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 Act 2004 or on any other basis.

18 In a recent decision of the Court of Appeal, AT v Commissioner of Police [2010] NSWCA 131, Basten JA, delivering the judgment of the Court, referred at [33] to ‘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’. He then said:-

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 [ADT Act].

19 The current version of section 88, in which the criterion of ‘fairness’ stated in subsection (1A) has replaced a rule that in the absence of ‘special circumstances’ no costs might be awarded, became operative on 1 January 2009. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 at [72], the Tribunal stated:-

What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant’s entitlement to costs. …[T]he result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.

20 The foregoing dicta may be contrasted with the following observations made in a case (Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226 at [15]) decided in the Equal Opportunity Division under the ‘old’ section 88:-

15 Costs orders are rarely made against unsuccessful applicants in anti-discrimination matters. The Appeal Panel observed in Tu v University of Sydney (No 2) [2002] NSWADT 22 at [42] that:

. . . the sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved.

21 Finally, in decisions within this Division on costs, under both the ‘old’ and the ‘new’ version of section 88, it has been recognised that the rejection of an offer of compromise may provide grounds for an award of costs, provided that (a) the terms offered were more favourable to the rejecting party than the order or orders made by the Tribunal in deciding the case and (b) the rejection was, in all the circumstances, unreasonable. The cases of Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 (see [26 – 30]) and Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263 (see [31 – 36]) provide examples.

The Respondents’ submissions on costs

22 In his written submissions on behalf of the Respondents, Mr Stewart based their claim for costs principally on the propositions that Mr Ekermawi’s claims against them were ‘untenable at law’, within the meaning of paragraph (c) of section 88(1A) of the ADT Act, and that he had persisted with them despite being aware from previous decisions made against him that they were indeed untenable.

23 In support of the first of these propositions, Mr Stewart relied mainly on the passage in the principal decision (paragraphs [52 – 55], quoted above at [10]) in which we stated our reasons for dismissing Mr Ekermawi’s complaints. He maintained that Mr Ekermawi had ‘manifestly failed to satisfy the threshold requirements’ for bringing a claim of racial vilification under the AD Act and that therefore his case was ‘hopelessly flawed’ and ‘misconceived in its entirety’.

24 With regard to the second proposition, Mr Stewart submitted that while Mr Ekermawi faced problems such as we had noted in the principal decision at [63] (see [13] above), he was ‘not in the usual position of an unrepresented litigant’ and was ‘no stranger to the Tribunal, nor to the bringing of claims of alleged vilification in similar circumstances’. In recent years, he had in fact brought two claims of racial vilification before the Tribunal, in both of which his application for leave to proceed under section 96 of the AD Act had failed on one of the key grounds on which our dismissal of his present claims was based. Leave had been refused because the alleged vilification was of ‘Muslims’ and, as we held following a line of earlier Tribunal decisions, ‘Muslims’ are not a ‘race’ within the definition in section 4.

25 In the first of these decisions, Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334, the Tribunal said at [7 – 8]:-

7 In response to that argument Mr Ekermawi says that the race, which has been vilified in this case, is Islam and that just as Jews have been said to be protected by racial vilification provisions in the Federal jurisdiction, so adherence to Islam should also be protected. There does indeed seem to be a disparity in the way that courts have classified Jews as members of an ethno-religious group whereas Muslims, who come from diverse ethnic background, have not been characterised as a race. Nevertheless, the authorities are clear that Islam per se is not an ethno-religious origin under the provisions of the Anti-Discrimination Act. Those authorities include the case Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131. I adopt the reasoning of the Tribunal in that case at paragraphs 18 to 20.

8 It is up to Parliament, if it wishes to do so, to amend the Anti-Discrimination Act to protect religious belief from vilification. This Tribunal cannot interpret the legislation and give it a meaning any different from the ordinary or plain meaning of the words in the Act. For that reason alone I would refuse to give Mr Ekermawi leave for his complaint to go ahead because, in my view, there is little or no prospect of him succeeding on the ground of race. Even if he did have some prospect of success on the ground of race it is also my view that it would be highly unlikely that he would be able to prove the other element in dispute which is that the broadcast incites hatred, serious contempt or severe ridicule.

26 In the second of these decisions, Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351 at [10], the Tribunal said:-

Furthermore, while the article is addressed to Muslims, Islam is a religion and is not covered by the definition of race in the Anti-Discrimination Act. Section 4 of the Act defines race to include “colour, nationality, descent and ethnic or ethno-religious or national origin.” This Tribunal has decided in cases including Kahn v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 (31 July 2002) that religion per se is not included in the definition of race. Mr Ekermawi did not nominate any ethno-religious origin as being the subject of the article.

27 Pointing out further that for a significant period in these proceedings (though not during the hearing) Mr Ekermawi was represented by legal aid, Mr Stewart maintained that ‘any consideration that might be extended towards an unrepresented litigant should not be extended in this instance’. He concluded this part of his submissions by arguing that Mr Ekermawi had ‘caused the Tribunal to waste significant time and public resources and the Respondents to incur unnecessary costs in a context where he failed to satisfy basic requirements of the [AD] Act on almost identical grounds as he had on two other occasions before the Tribunal’.

28 In addition to this primary ground, Mr Stewart put forward two subsidiary grounds in support of the Respondents’ application for costs.

29 The first of these was based on paragraph (b) of section 88(1A) of the ADT Act. Mr Stewart submitted that Mr Ekermawi had unreasonably and unnecessarily prolonged the proceedings by making different assertions at different times as to the racial group to which he claimed to belong. In his Points of Claim, he described himself as a member of a group ‘known as Arab, Middle Eastern and Moslem Australians’. But at the hearing, as already indicated, he described himself as a member of a long-standing ethnic and religious community that had its origin in Palestine and the Middle East. In each case, the purpose of his assertion had been to try to show that he had standing to institute proceedings under section 88 of the AD Act.

30 The second of the subsidiary grounds was based on Mr Ekermawi’s rejection of an offer of compromise. This was made to him by the Respondents in an open letter faxed on Tuesday 23 June 2009 to the solicitor then acting for him, Mr Kai Wu of Legal Aid. By way of full and final settlement of his claims, and without admission of liability, they made offers to the following effect:-

1A. Harbour Radio Pty Ltd would donate a total of $20,000 and Nine Network Pty Ltd would donate a total of $5,000 to any two of four designated charities (three of which aimed in different ways to promote better relations between Muslim and non-Muslim Australians).

1B. As an alternative to 1A, the Respondents would make a total ex gratia payment of $2,500 to Mr Ekermawi.

2. Each Respondent would provide to Mr Ekermawi a private and confidential letter of regret.

3. Each Respondent would grant to Mr Ekermawi access to the materials used in its anti-vilification compliance program and would discuss with him any comments that he might wish to make.

31 The offer was stated to be open until 5 p.m. on Friday 26 June 2009, with the additional indication that any request for an extension of time to consider it would be given consideration. No reply was received to the letter.

32 Mr Stewart submitted that Mr Ekermawi’s rejection of this offer, which was evidently more favourable to him than the final outcome of the proceedings, was unreasonable, and that for this further reason it was ‘fair’ within the meaning of section 88(1A) of the ADT Act that he should pay the Respondents’ costs.

Mr Ekermawi’s submissions on costs

33 Mr Ekermawi’s submissions, which were signed and filed by him, sought first to rebut the primary ground advanced by Mr Stewart by pointing out that the Tribunal had granted him leave under section 96 of the AD Act to bring these proceedings. He cited the following passage at paragraph [16] of the Tribunal’s decision of 12 December 2007 (Ekermawi v Nine Network Television Pty Ltd and anor [2007] NSWADT 295) granting leave with respect to the proceedings in files 071003 and 071004:-

16 The compact disc contains material which has not been transcribed but about which Mr Ekermawi complained. I have taken into account the entire content of the material on the compact disc in deciding to give leave for it to be the subject of proceedings. That material satisfies me that Mr Ekermawi has reasonable prospects of establishing that there has been a breach of section 20C. Similarly, Mr Ekermawi has reasonable prospects of establishing that the Nine Network breached section 20C in relation to their telecast.

34 Mr Ekermawi pointed out also that both this decision and the decision at a case conference on 8 November 2006 granting leave with respect to the proceedings in file 061083 had preceded the two decisions in 2008 cited by Mr Stewart (see [25 – 26] above) in which leave for him to proceed with complaints concerning Muslims had been refused on the ground that Muslims were not an ethno-religious group.

35 According to Mr Ekermawi, the grants of leave with respect to the present proceedings gave him to believe that no objection on this ground was being raised against him. Relying on the Tribunal’s decision in Toll Pty Ltd trading as Toll Express v Abdulrahman(EOD) [2007] NSWADTAP 70, on a House of Lords decision to which he referred at the hearing (Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548) and on the Attorney-General’s Second Reading Speech mentioned above at [11], he claimed not to have understood that Muslims were not a ‘race’ under the AD Act. It was not until a few days before the hearing, when he was ‘given a big bundle of documents’ by the Respondents, that he realised that they intended to contest the issue of standing. Both at this time and during the hearing, he did not have legal representation. After the hearing, he was given time to prepare written submissions, with which he received ‘some help’. But on account of his lack of legal training and qualifications and his difficulties in reading and writing English, it was ‘only now’ that he understood that ‘Muslims are not covered by the definition of race’.

36 A further aspect of the procedural history of this litigation on which Mr Ekermawi relied was that the Respondents, even though they now maintained that his case had been ‘hopelessly flawed’ and ‘misconceived in its entirety’, had never applied for it to be summarily dismissed under section 73(5)(g)(ii) of the ADT Act. This provision empowers the Tribunal to dismiss proceedings at any stage if it considers that they are ‘frivolous or vexatious or otherwise misconceived or lacking in substance’.

37 Mr Ekermawi also drew attention in his submissions to our indication in the principal decision (see [16] above) that some of the broadcast material might well have amounted to unlawful vilification under section 20C(1) if Muslims were a ‘race’ within the meaning of section 4, or might have been actionable by him as vilification of Muslims of Pakistani origin if he had possessed standing under section 88.

38 In response to Mr Stewart’s argument that he had made different assertions at different times regarding the racial group to which he claimed to belong, Mr Ekermawi contended that his assertions did not change substantially and that he had not intended to change them, but did so as the Respondents presented their case at the hearing.

39 Mr Ekermawi’s reasons for rejecting the Respondents’ offer to settle the litigation were, he said, that on account of comments made in a mediation conference preceding the offer he did not believe that it was made ‘in the proper spirit’ and that having regard to amounts awarded to other racial vilification complainants in recent proceedings he had hoped to receive more than $2,500 as compensation. He submitted that for these reasons his rejection of the offer was not unreasonable.

40 Finally, Mr Ekermawi included in his submissions a number of observations to the effect that public comments against Muslims generally should not be permitted by the law and that it was both his duty, and in the public interest, to ‘speak out’ against them by bringing proceedings such as these.

Our conclusions

41 In summary, our view of this matter is that an order for costs should be made against Mr Ekermawi on the primary ground put forward by the Respondents, but that it should relate to the costs of only a part of the proceedings.

42 We agree with Mr Stewart that Mr Ekermawi’s case suffered from fundamental defects of which he should have been fully aware by the time when the hearing commenced. It was clear law at that time that Muslims were not a ‘race’ within the meaning of the AD Act. It should also have been clear to him that the only ‘ethno-religious group’ (Pakistani Muslims) that was the target of adverse comment in the broadcast material of which he complained was not a group to which he belonged, and that he therefore lacked standing under section 88 of this Act to make a vilification complaint alleging vilification of a group so defined.

43 For these specific reasons, which are in essence those on which our dismissal of Mr Ekermawi’s complaints was based, we conclude that these complaints ‘had no tenable basis in fact or law’ within the meaning of paragraph (c) of subsection 88(1A) of the ADT Act. This conclusion provides grounds for a ruling under this subsection that it would be ‘fair’ to make a costs order against him.

44 Mr Ekermawi’s arguments stemming from the Tribunal’s decisions granting leave for his complaints to proceed do, however, have some force when considering whether an order that he should pay all of the Respondents’ costs, or some lesser order, is appropriate.

45 Our own examination of these decisions, along with the President’s Reports, the Tribunal’s decision ‘reviving’ the complaint in file 061083 and the three files maintained by the Registry, shows that until the Respondents filed and served their Points of Defence in the proceedings, which was on 6 November 2009, they appeared to accept that Muslims did or might constitute a ‘race’ and that Mr Ekermawi did not lack standing under the AD Act.

46 The principal factors warranting this conclusion are as follows:-

1. Nine Network Australia Pty Ltd, in a letter written to the Board dated 16 November 2006 in the course of the Board’s investigations, set out several submissions in a section headed ‘Comments did not constitute vilification’. They did not argue in this section that Muslims were not a ‘race’; indeed, they implicitly accepted that if the broadcast satisfied all the other criteria of vilification set out in section 20C of the AD Act, it would amount to vilification of ‘Muslims as a race’. The question of Mr Ekermawi’s standing seems not to have been raised.

2. At no other point did either of the Respondents, in their correspondence with the Board, refer to the question whether Muslims were a ‘race’ or to the issue of Mr Ekermawi’s standing.

3. In the decision granting leave for the complaint in files 071003 and 071004 to proceed ( Ekermawi v Nine Network Television Pty Ltd and anor [2007] NSWADT 295), the Tribunal, as already mentioned, noted at [12] that ‘neither respondent submitted that leave should be refused because Muslims are not covered by the definition of race’. Also, at [13], [14] and [15], it used phrases implying that the publication of material inciting hatred, serious contempt or severe ridicule of Muslims would constitute racial vilification.

4. In the decision ‘reviving’ the complaint in file 061083 ( Ekermawi v Harbour Radio Pty Ltd trading as 2GB Radio [2008] NSWADT 49), it was not argued in the submissions by Harbour Radio Pty Ltd (these are summarised at [24]) that Muslims are not a ‘race’ or that Mr Ekermawi lacked standing.

5. Nowhere in documents received from the Respondents and retained the Registry’s files contain is either of these contentions to be found, except in the Points of Defence filed on 6 November 2009.

47 In assessing the significance of this failure by the Respondents to raise these contentions until a date (6 November 2009) less than one month before the hearing, we have obtained useful guidance from the following passage in the Appeal Panel’s judgment in Toll Pty Ltd trading as Toll Express v Abdulrahman(EOD) [2007] NSWADTAP 70 at [9 – 11]:-

9… Mr Abdulrahman [the Applicant] had the onus of proving his case. That includes proving that he is a member of a “race” as defined in section 4 of the AD Act if that fact was not expressly or impliedly conceded. We do not accept Mr Abdulrahman’s submission that this is a case where Toll [the Respondent] has forfeited its right to raise this issue on appeal because it did not raise it at first instance: Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [51]. Membership of a group with an ethno-religious origin was a fact that Mr Abdulrahman had to prove, not an argument or defence available to Toll. However, in our view, Toll impliedly conceded that Mr Abdulrahman was a member of an ethno-religious group. Although no formal pleadings were filed which would have given Toll the opportunity to admit or deny ethno-religious origin, when making its final submissions Toll’s representative did not raise the issue of Mr Abdulrahman’s race. Rather, it submitted that the Tribunal should accept the evidence of its employees that the alleged comments were not made. Toll’s conduct in failing to raise Mr Abdulrahman’s race as an issue, amounts to an implied concession that he came within the definition of a person having an ethno-religious origin. That concession made it unnecessary, in hindsight, for Mr Abdulrahman to adduce evidence of that fact and it also made it strictly unnecessary for the Tribunal to determine that issue.

10 In Comcare v Fiedler [2001] FCA 1810 at [40], the Full Federal Court said, in relation to the Administrative Appeals Tribunal, that:

The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision.

11 In this case, there was no reason for the Tribunal to question Toll’s implied concession that Mr Abdulrahman was a member of ethno-religious group. It could merely have noted that Mr Abdulrahman’s race was not an issue….

48 These dicta relate specifically to the issue of the standing of a person making a complaint of racial vilification, not to the separate question whether the group allegedly vilified constitutes a ‘race’. But in our opinion, they provide support for the view that until the Respondents filed their Points of Defence on 9 November 2009 Mr Ekermawi could legitimately have assumed (as he claimed to have assumed) that in these proceedings the question of his standing, at least, was ‘not an issue’. If an implicit concession by the Respondents that he possessed standing remained operative, it would have been open to him to argue at the hearing that the Respondents should be held liable because some of the material broadcast by them vilified an ethno-religious group (i.e. Muslims of Pakistani origin) to which he did not belong. He could have maintained this argument even though the proposition that Muslims are not a ‘race’ (the correctness of which had been made manifestly clear to him in the two Tribunal decisions, adverse to him, delivered in 2008) would undoubtedly have been applied so as to undermine his case in relation to the remainder of the broadcast material.

49 The outcome of this reasoning is that the characterisation of Mr Ekermawi’s complaints as having ‘no tenable basis in fact or law’ only applies as from 9 November 2009. On the issues other than the definition of ‘race’ and his standing to sue, he had, in our opinion, at least an arguable case. We took the view, for instance, that some of the broadcast material may well have had the effect of inciting hatred, serious contempt or severe ridicule, within the meaning of section 20C(1) of the AD Act, against the group to which it referred (see our observations in the principal decision at [67 – 71], referred to above at [16]).

50 Our conclusions regarding the two subsidiary grounds argued by Mr Stewart are as follows.

51 With regard to the first of them, we do not consider that Mr Ekermawi unreasonably and unnecessarily prolonged the proceedings by making different assertions at different times as to the racial group to which he claimed to belong. This may well have been attributable to the Respondents’ own change of position on the matters that we have been discussing. Furthermore, it was not a matter of particular prominence at the hearing.

52 With regard to the second, it is relevant that the rejection of the Respondents’ offer of settlement occurred at a time when Mr Ekermawi’s standing and the proposition that Muslims constituted a race were not being contested. Having regard to this factor, we do not think that his rejection of this offer was unreasonable.

53 None of our rulings regarding the period before 9 November 2009 undermines our conclusion that from this date onwards Mr Ekermawi’s complaints had ‘no tenable basis in fact or in law’. As it happens, it was shortly before this date that he ceased to have the benefit of Legal Aid. But the Points of Defence made it quite clear that two key matters which previously appeared to be conceded were now being contested. The reason why he still persisted with his complaints may have been (as he claimed) that he did not appreciate the significance of this change. But his apparent failure to obtain appropriate advice about it is a matter for which he must bear the consequences.

54 For the foregoing reasons, our order is that Mr Ekermawi is to pay the Respondents’ costs of these proceedings incurred after 9 November 2009, as agreed or assessed.