Trad v Jones (No 5)
[2013] NSWADT 127
•05 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Trad v Jones (No 5) [2013] NSWADT 127 Hearing dates: 30 April 2013 Decision date: 05 June 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: The respondents are to pay the applicant's costs from 6 June 2007 as agreed or assessed.
Catchwords: COSTS - complaint of racial vilification by Keyser Trad against Alan Jones and radio station 2 GB - part of complaint substantiated and part dismissed - each party applied for costs - operation of doctrine of res judicata - whether fair to award costs - unreasonable refusal to accept an offer of settlement - relative strengths of the claims Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977Cases Cited: Trad v Jones & Anor [2008] NSWADT 272
Trad v Jones (No 2) [2009] NSWADT 206
Trad v Jones & anor (No. 3) [2009] NSWADT 318
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13
Chand v Railcorp of NSW (No.2) [2011] NSWCA 80
Trad v Jones (No 4) [2012] NSWADT 265
Trad v Jones (No 3) (EOD) [2012] NSWADTAP 33
AT v Commissioner of Police, NSW [2010] NSWCA 131
Tu v University of Sydney (No 2) [2002] NSWADTAP 25
De Luca & Anor v Scuccimarra & Anor (No 2) [2007] NSWADT 245
Denmeade v Kempsey Shire Council & Ors (No.3) [2004] NSWADT 54;
Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263;
Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 at [28];
Hughes v Narrabri Bowling Motel Limited (No 2) [2012] NSWADT 260.
Calderbank v Calderbank [1975] 3 ALL ER 333
Multicon Engineering Pty Ltd v Federal Airports Corp (1996) 138 ALR 425
Assaf v Skalkos [2000] NSWSC 935
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Sunol v Collier (EOD) [2006] NSWADTAP 51
Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24
Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12
Khan v Commissioner, Department of Corrective Services [2002] NSWADT 209Texts Cited: Butterworths, Concise Australian Legal Dictionary, 2nd edition, Butterworths, 1998 Category: Costs Parties: Keyser Trad (Applicant)
Alan Jones (Respondent)
Harbour Radio Pty Ltd (Respondent)Representation: Counsel
K Nomchong SC (Applicant)
K Eastman SC (Respondents)
Turner Freeman (Applicant)
Baker & McKenzie (Respondents)
File Number(s): 071036
REASONS FOR DECISION
Introduction
In December 2009, the Tribunal found that broadcaster Alan Jones and the licensee of radio station 2 GB, Harbour Radio Pty Limited, had breached the racial vilification provisions of the Anti-Discrimination Act 1977. Comments made by Mr Jones on 28 April 2005 were found to have vilified Lebanese Muslims on the ground of their race (the Schedule A broadcast). Other comments made on 26, 27 and 28 April 2005 (the Schedule B broadcasts), were found not to constitute racial vilification because they were directed to Muslims and, in the context of the broadcast, Muslims were being characterised as a religious, not a racial group. The applicant, Mr Trad, has applied for the respondents to pay his costs of the whole proceedings. Alternatively, he applies for the costs relating to the Schedule A broadcast. Mr Jones and Harbour Radio have applied for their costs relating to the Schedule B broadcasts.
The normal rule is that each party pays their own costs. Costs may only be awarded if it is fair to do so. I have decided to order the respondents to pay the applicant's costs from 6 June 2007 because the applicant made a reasonable offer to settle the entire proceedings by way of an on-air and a written apology before any significant legal costs had been incurred. The respondents unreasonably rejected that offer which expired on 6 June 2007. The terms of the offer were more favourable to the respondents than the orders that the Tribunal ultimately made.
It is a fundamental human right recognised by the Anti-Discrimination Act 1977 (AD Act) that every person should be able to live free from racial vilification. High profile public figures like Alan Jones have ready access to legal advice. If, either inadvertently or intentionally, Mr Jones vilifies a person or a group of people on the ground of race he should, at least, respond quickly and acknowledge and apologise for any wrongdoing. That did not happen in this case. Despite the seriousness of the allegations neither respondent answered the President's letter enclosing the complaint or the Tribunal's letter requiring them to attend the first case conference. It was in that context that Mr Trad made a reasonable offer to settle the entire complaint by way of an on-air and a written apology in relation to the Schedule A broadcast only. Despite the efforts to settle the matter after 6 June 2007, it is fair for the respondents to pay the applicant's costs from that date.
Constitution of Tribunal
The Judicial Member who presided at first instance is no longer a member of this Tribunal. The Tribunal was re-constituted to hear the costs application in accordance with s 79 of the ADT Act. Because the Tribunal is exercising an ancillary function, one judicial member now constitutes the Tribunal: Administrative Decisions Tribunal Act 1997, s 24A.
Background
The complaint
On 29 April 2005 Mr Trad lodged a complaint of racial vilification with the President of the Anti-Discrimination Board. The complaint was about various comments Mr Jones had made when presenting a programme on Radio 2 GB between 26 and 29 April 2005.
The so-called Schedule A broadcast took place on 28 April 2005 from 9.20 am. Mr Jones referred to Lebanese males and Lebanese Muslims. Because it is relatively short, I will reproduce the Schedule A broadcast in full:
ALAN JONES: Yes, it's 20 past nine. I've just received this letter, which has just been sent to me by a listener. "Frightening" he says: I watched in horror as Lebanese males -- this is in relation to the Channel 9 program last night -- openly taunted police who were sent there to try and shift these idiots from the area. The camera clearly showed Lebanese males swearing and challenging police to fight, openly humiliating them. Singing 'pig songs' and walking up to the window of the police car and hurling abuse at the police inside. What did the police do? Nothing? They drove off to the cat calls and abuse of a clearly out-of-control crowd.
Remember, these people announced themselves as Lebanese Muslims. Were police reinforcements called to make arrests? No. He says: If ever there were clear examples of the offence 'intimidate police' that was captured on film. But the police involved just meekly drove away. It was sickening. But more was to come. A number of these mongrels then pretended to hold a minute's silence for Anzac Day. Obviously this film was - this segment was filmed on the 24th of April. They then bowed their heads and pretended to cry and began to laugh and make jokes about our fallen heroes. It was absolutely gut-wrenching to watch and listen to these mongrels desecrate our national memory. If ever there was a clear example that Lebanese males in their vast numbers not only hate our country and our heritage, this was it. They have no connection to us. They simply rape, pillage and plunder a nation that's taken them in. I can't believe what I'm seeing. What did we do as a nation to have this vermin infest our shores? What about the sacrifices that our war dead gave to this country to make it what it is today, and these mongrels laugh at them on national TV.
Tell me we don't have a national security problem in the making. And that show last night would have shown Bob Carr for what he is - a liar. 'We have delivered safer streets for the community', he shouts. He continues to talk about how his government have made the New South Wales Police Force the number one force in the country. What we saw last night was a graphic example of the Carr Government deception, and the incredible failures of not only Ryan but now Moroney. We have a Police Force that allows itself to be humiliated and assaulted by mobs of rampaging youths at Redfern, Macquarie Fields and anywhere else in Sydney. This is the age of the academic trained police, who are taught to turn the other cheek and cop whatever comes their way. When police simply back down and absorb the insults and the humiliation that I saw last night then I know we've lost control of the streets.
Well, we pay government to be able to address these issues and yet again they don't. And as I said before, if there's someone out there who can't do the job, turn over your badge and give it to someone who can.
The so-called Schedule B broadcasts occurred over 3 days in April 2005. The transcript of those broadcasts is lengthy. The Tribunal described them as having the following themes:
. . a speech by a Lebanese-Australian Muslim cleric called Sheik Faiz Mohammed; the allegedly inflammatory nature of that speech which Mr Jones interpreted as an excuse for or incitement of sexual assaults by Muslim men upon non-Muslim women and as blaming the victims for the crimes committed against them; the fact that the speech was given to a large audience of Muslim people in the Bankstown area; the alleged reaction or lack of reaction by the audience and, in particular, people identified by Mr Jones only as "the Muslim leadership"; the fear of non-Muslim women;
In the last two days, after apparently receiving hundreds of emails from Muslim listeners, a theme also developed that many of the "Muslim rank-and-file" had disowned their "leadership" in favour of the type of leadership offered by Mr Jones. Trad v Jones & anor (No. 3) [2009] NSWADT 318 at [5].
Racial vilification unlawful
Under s 20C(1) of the Anti-Discrimination Act:
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 race of the person or members of the group.
Race is defined in s 4:
Race includes colour, nationality, descent and ethnic, ethno-religious or national origin.
A significant issue in relation to the Schedule B broadcasts was whether any incitement to hatred, serious contempt for or severe ridicule of a person or group was on the ground of the "ethno-religious" origin of that group.
Various exceptions are set out in s 20(C(2):
(2) Nothing in this section renders unlawful:
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
Brief procedural history
Three days after receiving the complaint the President of the Anti-Discrimination Board advised the owners of Radio 2 GB of the complaint and issued a Notice under the Broadcasting Services Act 1992 (Cth). The President required Radio 2 GB to keep a recording of the relevant broadcasts and to provide a copy to the Anti-Discrimination Board. The owners complied promptly providing CDs of selected items from the Alan Jones' programme from 26-29 April 2005. The President had the CDs transcribed and, in September 2005, asked Mr Trad to identify the comments that were of the most concern. Mr Trad replied on the same day.
The President wrote to the owners of 2 GB again on 27 November 2006, more than a year later, asking for a response to the complaint itself. Although a response was requested within 28 days, no response was received in that time and, on 17 January 2007, Mr Trad asked the President to refer the complaint to the Tribunal. The President referred the complaint on 22 March 2007 together with the President's Report attaching all relevant correspondence.
The Tribunal wrote to each of the parties enclosing a copy of the President's Report and advising that they should attend a case conference on 9 May 2007. Mr Trad attended the conference but neither of the respondents attended. The Tribunal directed that the matter be listed tentatively for mediation on 7 June 2007 and that a further case conference be held on 2 July 2007 if the matter did not settle. The Judicial Member requested that the Registrar write to each respondent advising that the applicant had consented to the matter proceeding to mediation. The letter set out alternative directions if the respondents did not consent to mediation.
On 22 May 2007, two weeks after the first case conference, the applicant's solicitors wrote to Mr Jones offering to settle the complaint by way of an "on air" and a written apology. Neither Mr Jones, or any other person on his behalf, replied to that letter at the time.
Mediation did not take place on 7 June 2007 but, by arrangement between the parties, it was held on 23 October 2007. It was adjourned to 7 November 2007. There was further correspondence between the parties after that date regarding settlement offers. Both parties made a significant effort to resolve the complaint, but it did not settle. A copy of the correspondence between the parties in relation to the settlement negotiations was Confidential Exhibit A 12 in the proceedings. That exhibit was also before me.
By the time of a further case conference on 6 February 2008, the matter had not settled and it was set down for hearing on 29 and 30 July 2008. Prior to that hearing, the Tribunal heard an interlocutory application by the respondents to confine the scope of the complaint to certain specified comments and to strike out those parts of the Points of Claim which were said to allege religious, rather than racial vilification. The Tribunal rejected the applications and permitted the applicant to amend the Points of Claim in one respect: Trad v Jones & Anor [2008] NSWADT 272.
The applicant filed Amended Points of Claim but there was disagreement as to whether that document reflected the Tribunal's decision. The parties then had discussion on the issue of whether further evidence was required to address the applicant's new point. On 11 May 2009, the first day of hearing, the applicant applied to further amend the Points of Claim to deal with the issue of whether Muslims constitute an ethno-religious group in the context of the Schedule B broadcasts. The Tribunal gave the applicant leave to further amend the Points of Claim and to file new evidence: Trad v Jones (No 2) [2009] NSWADT 206. The Tribunal noted at [27] that it was within the Tribunal's power to cure any unreasonable prejudice to the respondents by making a costs order in their favour. The matter was ultimately heard on 12 and 13 August 2009.
Tribunal's decision at first instance
The Tribunal found the complaint of racial vilification in respect of the Schedule A broadcast substantiated. The complaint in so far as it related to the Schedule B broadcasts was dismissed. The Tribunal found that the group being referred to in the Schedule B broadcasts, was Muslims and that they are a religious group, not an ethno-religious group. Any incitement which may have occurred was not on the ground of race: at [166]. The Tribunal ordered the respondents to pay $10,000 in damages, to conduct a 'critical review of its policies and practices on racial vilification' and staff training and to apologise in terms to be agreed. The Tribunal also directed both parties to make any application for costs within 28 days. The precise orders were:
1. The complaint of racial vilification as against the first and second respondents in respect of Schedule A of the Points of Claim is substantiated. The balance of the complaint is dismissed
2. The respondents are to pay the applicant within 21 days, damages in the sum of $10,000, for which they are jointly and severally liable.
3. Within six months of the date of these orders the second respondent is to conduct review in accordance with [245] of these Reasons.
4. The parties are directed to confer about the time, form, extent and manner of publication of the apology to be issued in accordance with these Reasons. If the Tribunal is not notified within eight weeks of the date of these orders that agreement has been reached directions will be issued under s 108(2)(d) of the Anti-Discrimination Act 1977 about the details of the apology.
5. Any application for costs in relation to these proceedings, together with supporting submissions, must be filed and served within 28 days of the date of these reasons. Within a further 28 days, the opposing party is to file and serve submissions in reply.
Before the costs application was determined or the details of the apology agreed upon, the respondents appealed to the Appeal Panel and Mr Trad cross-appealed.
Issues
The issues can be summarised as follows:
1) Are the costs applications barred because of the doctrine of res judicata or issue estoppel?
2) If not, is it fair in all the circumstances to order the respondents to pay all the applicant's costs or, alternatively, the costs relating to the Schedule A broadcast?
3) Is it fair in all the circumstances to order the applicant to pay the respondents' costs relating to the Schedule B broadcasts?
Are the costs applications barred because of the doctrine of res judicata or issue estoppel?
The respondents applied for the applicant's costs application to be dismissed because the Tribunal does not have jurisdiction to entertain it. The respondent conceded that if this submission was accepted it would also mean that their costs application could not proceed. The submission was made on the basis that when the Appeal Panel was hearing the appeals against the Tribunal's decision, it decided that it had no jurisdiction to hear the application for costs in relation to the proceedings below. According to the respondents, that means that the application for costs at first instance has been finally determined. In my view, that submission is not supported by the facts.
The doctrine of res judicata or cause of action estoppel is that "if a dispute is judged by a court of competent jurisdiction, the judgement of the court is final and conclusive as to the rights and duties of the parties involved": Butterworths, Concise Australian Legal Dictionary, 2nd edition, Butterworths, 1998. The aim is to ensure finality and non-duplication of litigation. A related principle is issue estoppel. The most authoritative statement of that principle is in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, per Dixon J, at 531-2:
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties... The estoppel covers only those matters which the prior judgment...necessarily established as the legal foundation or justification of its conclusion, . . . Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.
When handing down its decision, the Tribunal directed the parties to make any application for costs within 28 days. Each party applied for costs and replied to the other party's application. On 12 February 2010, before the Tribunal had determined those applications, the Registrar wrote to the parties saying that the costs applications would not be determined at that time because an appeal and cross appeal had been lodged and the outcome of those appeals may have some bearing on the issue of costs at first instance.
In the course of hearing the appeals, the Appeal Panel considered the applicant's submission that it could determine his application for costs in relation to the proceedings below. The respondents submitted that the Appeal Panel did not have the power to determine applications for costs at first instance. The Appeal Panel agreed. In any case, the Appeal Panel decided that it was more appropriate for the Tribunal below to hear the costs application:
As to the proceedings at first instance, we apprehend that we have no power to order any such costs: Chand v Railcorp of NSW (No.2) [2011] NSWCA 80. In any case we think it inappropriate for us to entertain that dispute. We do not have the feel for those lengthy proceedings that those still members of the Tribunal who heard it would have, and if we were to decide the question, that might unfairly foreclose any possible appeal as to costs that might be better informed by a decision benefiting from the input of those members. See also the Tribunal's Costs Guideline at para 10, which suggests (with respect, for good reason) that the costs at first instance might have been finalised despite the appeals: Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13 at [2].
.
Incidentally, the applicant's lawyer pointed out that Chand v Railcorp of NSW (No.2) [2011] NSWCA 80 at [28] is actually authority for the proposition that the Appeal Panel does have power to determine an application for costs at first instance. Whether or not it has that power, the Appeal Panel decided that it was more appropriate for the Tribunal at first instance to determine any costs application.
Contrary to the respondents' submission, the Appeal Panel did not finally dispose of the application for costs before the Tribunal below. The passage quoted above makes it clear that it decided that the Appeal Panel lacked jurisdiction, not that the Tribunal below lacked jurisdiction to determine the costs application.
The respondents cannot gain any support for their submission from a statement the Tribunal made in proceedings relating to the form of the apology the respondents should make to the applicant. The background to that submission is that after deciding that the complaint was substantiated in relation to the Schedule A broadcasts, the Tribunal directed the parties to confer about the details of an apology. No agreement was reached and, as each party had lodged an appeal, no order was made about the form of an apology at that time.
After the Appeal Panel handed down its substantive decisions, the matter was re-listed before a differently constituted Tribunal to finalise the apology order. In that decision the Tribunal stated that:
The parties have been unable to come to an agreement and have been directed by the Tribunal to file and serve submissions about the time, form, extent and manner that the apology should take.
Those are the only outstanding issues in these proceedings: (Trad v Jones (No 4) [2012] NSWADT 265 at [2] and [3].
The respondents submitted that because the applicant had not made it clear to the Tribunal that there was also an outstanding costs application, the costs issue must have been finally resolved and the doctrine of res judicata or issue estoppel applies.
Any failure of the applicant to 'correct' a misunderstanding on the Tribunal's part does not affect the Tribunal jurisdiction to determine the costs application. In any case, on 12 December 2012 when the decision was made about the form of the apology, the Appeal Panel had not handed down its decision in relation to the costs on appeal or at first instance. If the Appeal Panel had decided that it had jurisdiction to deal with the application for costs at first instance, the details of the apology would have been the only outstanding issue.
The submission that the Tribunal at first instance does not have jurisdiction to hear and determine the application for costs because of the operation of the doctrine of res judicata or issue estoppel is not supported by the facts and is rejected.
When can costs be awarded?
Section 110 of the Anti-Discrimination Act gives the Tribunal power to award costs under section 88 of the ADT Act. Section 88 states that:
(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 Act 2004 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.
The "fairness" test in s 88 came into effect on 1 January 2009. Before that, to depart from the general rule that each party pays their own costs, the Tribunal had to be satisfied that there were 'special circumstances warranting an award of costs'. Although that was the test in 2007 when the 22 May offer of settlement was made, the fairness test applies to this matter because it was commenced but not finally determined before 1 January 2009: ADT Act, Schedule 5, Part 11, Cl 43(2)(i).
In a 2010 decision, after re-iterating the general rule that each party pays their own costs, the Court of Appeal made the following comments about the scope of s 88:
. . .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 subs (1A), but subject to the generality of para (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: AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33].
The nature of the jurisdiction is important. The Tribunal has noted the "chilling effect" of too readily awarding costs against unsuccessful applicants in a jurisdiction which seeks to protect and promote the observance of fundamental human rights: Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [39].
The objectives of the ADT Act are also relevant. They include:
(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...
As the Appeal Panel said, in Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [47]:
The equal opportunity jurisdiction like most of the other jurisdictions of the Tribunal is intended to function as a low-cost, relatively informal, expeditious forum for the resolution of disputes that involve deeply sensitive issues. For those goals to be achieved there must be active co-operation with the case management discipline of the Tribunal.
Applicant's application for costs
Unreasonable refusal to accept an offer of settlement
The applicant relied on all the grounds for an award of costs set out in his written submissions dated 18 January 2010 and 15 February 2010. I will deal first with the ground that the respondents have unreasonably refused to accept an offer of settlement made on 22 May 2007.
The fact that an offer of settlement has been unreasonably refused and the ultimate decision is more favourable to the person who made the offer, is not a factor listed in s 88 as relevant when determining whether it is fair to award costs. But the Tribunal may take into account any matter that it considers relevant: ADT Act, s 88(1A)(e). In costs applications in the Retail Leases Division the Tribunal has taken into account the fact that:
(a) a successful party in proceedings has made an offer of compromise of the dispute before the conclusion of the proceedings;
(b) the unsuccessful party has unreasonably rejected the offer; and
(c) the terms of the offer were more favourable to the unsuccessful party than the orders made by the Tribunal: De Luca & Anor v Scuccimarra & Anor (No 2) [2007] NSWADT 245 (10 October 2007).
Although the decision in De Luca & Anor v Scuccimarra & Anor (No 2) [2007] NSWADT 245 was made when the test for an award of costs was "special circumstances", this principle has also been taken into account in relation to the existing test of fairness in various divisions of the Tribunal including in the Equal Opportunity Division: Denmeade v Kempsey Shire Council & Ors (No.3) [2004] NSWADT 54; Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263; Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 at [28]; Hughes v Narrabri Bowling Motel Limited (No 2) [2012] NSWADT 260.
In the Supreme Court and the Federal Court there is provision for the payment of indemnity, rather than party/party, costs where a so-called "Calderbank" type offer has been made: Calderbank v Calderbank [1975] 3 ALL ER 333; Multicon Engineering Pty Ltd v Federal Airports Corp (1996) 138 ALR 425; Assaf v Skalkos [2000] NSWSC 935; Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602. While the principles followed in these cases come from a different legal and factual context they provide some guidance as to how this Tribunal should approach its task. In particular:
1) when determining whether the offer is 'reasonable' all the surrounding circumstances must be examined including whether the offer is genuine and realistic when it was made and the time given to respond: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [14] - [17];
2) to be reasonable, an offer should contain an element of compromise: Assaf v Skalkos [2000] NSWSC 935 at [61]; and
3) an offer of settlement which includes an apology does not have to correspond exactly with the findings of the ultimate decision maker, the question is whether the terms of the apology were, at the relevant time, reasonable: Assaf v Skalkos [2000] NSWSC 935 at [66] - [71].
22 May 2007 offer
By letter dated 22 May 2007 the applicant's solicitor wrote to Mr Jones offering to settle the proceedings in the Tribunal by way of an "on air" and a written apology. I have reproduced the letter in full:
Mr Alan Jones
Harbour Radio Proprietary Ltd
Macquarie Radio Network Ltd
Level I, Building C
33 - 35 Saunders Street
PYRMONT NSW 2009
Without Prejudice except as to costs
Dear Mr Jones
RE: KEYSAR TRAD
We act for Keysar Trad in respect of the proceedings in the Administrative Decisions Tribunal ("ADT") in respect of file number 071036.
At the present time, Keysar Trad is the complainant, and yourself and Harbour Radio Pty Limited are the respondents.
The matter was listed for its first case conference in the ADT before Deputy President Anne Britton on 9 May 2007. There was no appearance by or for Harbour Radio Pty Ltd or by or for yourself or for any other person who might be involved in the matter, apart from Mr Trad. We appeared for and with Mr Trad.
During the course of the conference the following directions were made;
1. The matter is listed for another case conference at 9:30 am on 2 July 2007.
2. The matter is listed for mediation at 10 am on 7 June 2007.
3. In the event that further parties are to be joined, an application for joinder of any additional parties as applicants/complainants or respondents be made by 22 June 2007 (10 days prior to next case conference).
4. We have leave to uplift the recordings at the tribunal and listen to them.
As you are aware from your previous involvement in proceedings of this nature in the Equal Opportunity Tribunal, such proceedings can be lengthy, costly and complex. With this in mind and the likely or possible course that the proceedings might take in the ADT, we have been instructed by Mr Trad to make the following offer of settlement in this matter to you:
1. You apologise to Mr Trad in writing in the exact form attached under cover of the letterhead of Harbour Radio Pty Ltd and yourself within 14 days of acceptance of this offer. The letter must be personally signed by you and must be submitted to us for approval beforehand; and
2. You are to broadcast the attached apology in the exact form attached to the people of New South Wales on your morning show at 9:20 am within 14 days of the acceptance of this offer.
The offer is open for acceptance by you for 14 days from the date of this letter. Whilst this timeframe may appear short to you, the complaint was made and investigated by the Anti-Discrimination Board ("ADB") over a period of time commencing in May 2005. There has been correspondence about the complaint from the ADB to Harbour Radio/Macquarie Radio without response. The correspondence about the complaint generated a substantial file at the ADB.
For your information we enclose a copy of the letter of the ADB to Mr Trad of 21 March 2007 together with attachments, including the President's Report, as sent to our client so that you can properly consider the matter and this offer.
In the event that the offer contained in this letter is accepted, then we can notify the ADT prior to the mediation, which is to take place on 7 June 2007. The ADT can then make appropriate orders by consent which provide for the apologies to be made, sent and broadcast by you.
It is implicit in this offer that the time limit for acceptance be complied with. If the offer is accepted, and the apologies made, our client will not be seeking any costs. If the offer is not accepted, our client's position will change in that regard, and he and any other parties will seek costs and other remedies from the ADT as are available under the Anti-Discrimination Act 1977.
Yours faithfully
TURNER FREEMAN
Per: Terence Goldberg
Partner
Enc
The proposed content of the written apology was as follows:
Dear Mr Trad
On 28 April 2005 at 9.20 am, on my morning program, I broadcast comments about the Lebanese community, the Lebanese male community, and the Lebanese Muslim community.
During the course of that program I broadcast remarks which vilified Lebanese males and Lebanese Muslims and which were designed to incite hatred towards, and serious contempt for Lebanese males and Lebanese Muslims. I recognise that the remarks made by me were unlawful and in breach of the racial vilification provisions of the Anti-Discrimination Act 1977 (NSW).
I apologise to you and to the Lebanese people of New South Wales for those remarks. (Underlining added)
It is unlawful for any person, including myself, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or a group of persons on the ground of their race.
Yours sincerely
Alan Jones
The proposed form of the on-air apology was in identical terms except that it did not include the underlined words. The requested apologies related only to the Schedule A broadcast on 28 April 2005.
Mr Jones did not reply to this offer within the14 day period. In fact, there is no evidence that either respondent replied in writing to the offer until two years later on 23 April 2009. During the intervening period, settlement negotiations had occurred.
The applicant set out the history of his attempts to settle the complaint in a letter of 3 April 2009. In particular, the applicant's lawyer stated that:
We note that the applicant would have resolved the matter by way of an apology only in 2005 and in 2007 before he had expended significant costs, and the respondents would not apologise as requested and still will not.
On 23 April 2009, in response to that letter, the respondents wrote:
We note your reference to the request for an apology made in a letter of 22 May 2007. While that letter (which was expressed to be without prejudice) did seek an apology, it did not indicate that your client would settle the matter "by way of an apology and nothing more" as asserted in your letter of 3 April 2009.
On the contrary, your letter of 22 May 2007 required Mr Jones to sign a letter (on the Harbour Radio's headed paper) and to make an on-air statement, both of which had to be in the express terms of the "apology" appended to that letter. That "apology" required Mr Jones to expressly admit that he had racially vilified Lebanese males and Lebanese Muslims . . . and to admit that the remarks broadcast during his programme were "designed to incite hatred towards, and serious contempt for Lebanese males and Lebanese Muslims. . . . In the circumstances, and given our client's position that no racial vilification had occurred, it is not surprising that Mr Jones was not prepared to make a statement that was tantamount to a full admission of guilt (as distinct from a genuine apology).
Further we note that the letter of 22 May 2007 was only sent to Mr Jones and not to Harbour Radio.
The applicant submitted that the respondents' rejection of the offer was unreasonable at the time and the terms of the offer were more favourable to the respondents than the orders ultimately made by the Tribunal.
Was rejection of the offer unreasonable at the time?
The points about the unreasonableness of the offer made in the respondents' 23 April 2009 letter were supplemented by oral submissions. In summary, the respondents submitted that it was not unreasonable for them to have rejected the offer because:
1) the offer did not indicate that nothing more than an apology was required - the 'apology' was in fact a full admission of guilt rather than a genuine apology;
2) the offer was only directed to Mr Jones, not to the second respondent, Harbour Radio Pty Ltd;
3) the respondents cannot have unreasonably rejected a settlement offer prior to the filing of Points of Claim on 9 August 2007 because that is when the complaint 'crystallised';
4) there were lengthy negotiations prior to the hearing and the respondents made genuine attempts to settle the matter; and
5) the Schedule A broadcast had nothing to do with Mr Trad.
Firstly, the respondents disagreed with Mr Trad that what he proposed was an apology. It was said to be a full admission of guilt in circumstances where liability was denied.
If the Tribunal finds a complaint substantiated, it may do various things including:
order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both): AD Act, s 108(2)(d).
Under this provision the Tribunal has ordered a respondent to apologise in terms which include an admission of liability: Sunol v Collier (EOD) [2006] NSWADTAP 51; Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24 (16 February 2005).) A similar order was ultimately made in these proceedings. In defamation proceedings in the Supreme Court, an order for indemnity costs was made where the defendants unreasonably refused an offer that they publish an apology which included an acknowledgement that the defendants had "seriously defamed" the plaintiff: Assaf v Skaldos [2000] NSWSC 935.
The respondents' second point was that the offer was directed only to Mr Jones. There was no separate letter to the second respondent. The respondents submitted that even if Mr Jones had accepted the offer, the proceedings would not have concluded against Harbour Radio Pty Ltd. According to the respondents, there is nothing in the letter which indicates that the applicant would have withdrawn his complaint against both respondents.
While it would have been prudent for Mr Trad's lawyer to write separately to the second respondent, I am satisfied that Mr Trad's intention was to make the offer to both respondents in the letter to Mr Jones and for its acceptance to mean that the entire complaint was at an end. Support for that finding comes from the following facts:
(a) the complaint was addressed to Mr Jones at Harbour Radio's address in Pyrmont;
(b) the letter acknowledges that the two respondents are Mr Jones and Harbour Radio Pty Limited;
(c) attached to the letter is a copy of the President's Report naming both Mr Jones and Harbour Radio Pty Ltd as respondents; and
(d) the written apology from Mr Jones was to be on Harbour Radio Pty Ltd's letterhead but otherwise there was no requirement for Harbour Radio Pty Ltd to take any action.
Thirdly, the respondents submitted that they did not unreasonably reject the settlement offer at that time because the complaint did not crystallise until the filing of Points of Claim on 9 August 2007.
The President of the Anti-Discrimination Board referred the complaint to the Tribunal on 29 April 2007. That referral is taken to be an application for an original decision within the meaning of the Administrative Decisions Tribunal Act: Anti-Discrimination Act, s 95(3). An applicant is only directed to file Points Claim where he or she is legally represented and/or the complaint is complex: Equal Opportunity Division Guideline at 5.7. The Points of Claim must be consistent with the complaint as referred by the President. The Respondent unsuccessfully applied to have the scope of the complaint confined to three incidents identified by Mr Trad in his written complaint to the ADB. The Tribunal found that the Points of Claim as filed did not extend the scope of the complaint as originally referred by the President: Trad v Jones & Anor [2008] NSWADT 272 at [29] and [30].
It was not reasonable for the respondents to impliedly reject the offer because Points of Claim had not been filed. The scope of the complaint was apparent from the President's Report.
Fourthly, the respondents submitted that there were lengthy negotiations prior to the hearing and the respondents made genuine attempts to settle the matter. In fact, one of the respondents' grounds for seeking costs was that they had made a settlement offer on 30 April 2008 which the applicant unreasonably rejected.
While I accept that the respondents genuinely attempted to resolve the complaint those negotiations are not relevant to the question of whether, at the time the offer was made in May 2007, it was reasonable for the respondents to reject it.
Finally, the respondents submitted that Mr Trad was not one of the "car hoons" to whom Mr Jones was referring in the Schedule A broadcast and he did not have any personal involvement with this incident. I accept that Mr Trad was not one of the people involved in the Hickson Road incident referred to in Schedule A. One of the terms of settlement was that Mr Jones apologise in writing to him. While that is not a remedy that the Tribunal ultimately ordered, it was not so unreasonably as to justify the respondents rejecting the offer. Mr Trad was born in Lebanon and now lives in Sydney with his family. He has standing to make the complaint and the Tribunal could have made an order that the respondents apologise to him personally.
There are several other matters not raised by the respondents which are relevant to the reasonableness of the rejection.
Firstly, the offer contained a significant element of compromise because it did not include any terms relating to the payment of damages or the future conduct of the respondents.
Secondly, the 14 day period given to respond was reasonable in the circumstances. The respondents had not responded within time to the President's letter seeking an answer to the complaint nor had they attended the first case conference before the Tribunal.
Thirdly, in relation to the timing of the offer, it was made very early in the proceedings before the Tribunal but long after the complaint had been made. The offer was made prior to the parties incurring any significant costs.
Were the terms of the offer more favourable to the respondents than the orders ultimately made by the Tribunal?
Not only did the Tribunal order an "on air" apology, it ordered the respondents to pay damages of $10,000 and to develop and implement a program or policy aimed at eliminating unlawful discrimination. Despite these additional remedies, the respondents submitted that the terms of the offer were less favourable than the orders made by the Tribunal. The basis for that submission was that:
1) the on-air apology ordered by the Tribunal was not in similar terms to that proposed by the applicant in 2007;
2) the Tribunal did not order that the respondents should apologise in writing to Mr Trad personally; and
3) the apology ordered by the Tribunal was confined to the "Hickson Road" incident.
At the hearing in relation to the details of the apology, the applicant put forward a very similar version of the apology to that which was proposed in the 22 May 2007 offer of settlement. The terms of the order that the Tribunal ultimately made about the on-air apology were that:
Mr Alan Jones read the following apology on air between 8.00 and 8.30 am on any day during the week commencing 17 December 2012:
On 28 April 2005 on my breakfast program on Radio 2GB I broadcast comments about Lebanese males including Lebanese Muslims. The comments were made following a Channel Nine television current affairs show about the conduct of young Lebanese men in Hickson Road at the Rocks.
The Administrative Decisions Tribunal has found that my comments incited serious contempt of Lebanese males including Lebanese Muslims. Those comments were in breach of the NSW Anti-Discrimination Act. I apologise for making those comments which I recognise were unlawful. I also apologise on behalf of Radio 2 GB."
This version contained the same elements as Mr Trad's version - some background information, an acknowledgement that the comments were unlawful and an apology. One insignificant difference between the apology offered by the applicant and that ordered by the Tribunal was that the latter included an extra sentence describing and further identifying the background to the events. That sentence mentioned the "Hickson Road" incident which was the scene of the conduct on which Mr Jones had commented.
The Tribunal also ordered Mr Jones to apologise on behalf of Radio 2 GB. Unlike the May 2007 offer, the Tribunal did not order Mr Jones to apologise personally to Mr Trad. It accepted the respondents' submission that he was not vilified personally by the broadcast in Schedule A: Trad v Jones (No 4) [2012] NSWADT 265 at [5]. Despite that finding, the Tribunal had the power to order the respondents to apologise personally to Mr Trad. The absence of such an order does not make the Tribunal's orders as a whole less favourable than the offer.
As with Mr Trad's 22 May offer, the apology related to the Schedule A broadcast only.
Is it fair to award costs?
The unreasonable rejection of a Calderbank type offer will not necessarily make it fair to award costs, but it does in this case. The Equal Opportunity Division is a jurisdiction which, through the resolution of complaints under the Anti-Discrimination Act, seeks to protect and promote the observance of fundamental human rights. Freedom from racial vilification is one such right. Alan Jones knows that his comments are broadcast to a large audience and that racial vilification is unlawful. An object of the ADT Act is to enable proceedings to be determined informally and expeditiously. That cannot happen if Mr Jones and Harbour Radio Pty Ltd do not respond to a reasonable offer of settlement.
It is fair for the respondents to pay the applicant's costs from 6 June 2007, the date the offer of settlement expired. This conclusion makes it unnecessary to consider any other basis on which the applicant or the respondent sought costs.
Amount of costs
The Tribunal's Costs Guideline (re-issued on 30 April 2010) encourages parties to file and serve a precise statement of the amount of costs actually sought and its components. If that is done, further costs of assessing the costs can be avoided. The applicant filed such a document at the hearing. The costs were estimated to be $180,946.17. That estimate comprised disbursements and expenses, including counsel's fees, as well as solicitor's costs. The respondents submitted that it was difficult for them to comment on the estimate because they do not know when the costs were incurred. The respondents went on to say that if the Tribunal is minded to order costs, additional details of the applicant's costs should be provided to the Tribunal.
Given those circumstances, and to avoid the costs of any further submissions, it is appropriate in this case to order that the respondents pay the applicant's costs as agreed or assessed.
Orders
The respondents are to pay the applicant's costs from 6 June 2007 as agreed or assessed.
Decision last updated: 05 June 2013
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