Appeal Panel - Internal CITATION: Lyons Road Pty Ltd v The Owners Strata Plan 38722 (No.2) (RLD) [2008] NSWADTAP 47 This decision has been amended. Please see the end of the decision for a list of the amendments. APPELLANT Lyons Road Pty Ltd PARTIES: RESPONDENT The Owners Strata Plan 38722 FILE NUMBER: 079048 HEARING DATES: On the papers SUBMISSIONS CLOSED: 1 July 2008 DATE OF DECISION: 30 July 2008 BEFORE: Chesterman M - Deputy President; Rickards K - Judicial Member; Weule B - Non Judicial Member CATCHWORDS: Costs MATTER FOR DECISION: Costs DECISION UNDER APPEAL: Lyons Road Pty Ltd v The Owners Strata Plan 38722 [2007] NSWADT 163 FILE NUMBER UNDER APPEAL: 065111 DATE OF DECISION UNDER APPEAL: 07/27/2007 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977Retail Leases Act 1994 Trade Practices Act 1974 (Cth) Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Inc (1991) 100 ALR 568 Baltic Shipping v Dillon (1991) 22 NSWLR 1 Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31 Collier v Sunol (No 2) [2006] NSWADT 88 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 Davies v Lyndhurst Developments Pty Ltd [2001] NSWADT 9 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 CASES CITED: Kolavo v Pitsikas and Conomos [2003] NSWCA 59 Laws v Burns (EOD) [2007] NSWADTAP 72 Lyons Road Pty Ltd v The Owners Strata Plan 38722 [2007] NSWADT 163 Lyons Road Pty Ltd v The Owners Strata Plan 38722 (RLD) [2008] NSWADTAP 28 Sarip Investments Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27 Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58 Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43 Sunol v Collier [2006] NSWADTAP 51 Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65 Wood & Anor v Bergman (No 2) [2003] NSWADT 175 Zouk v Lyons Road Pty Ltd [2005] NSWADT 143 APPELLANT S Phillips, barrister REPRESENTATION: RESPONDENT A S Mueller, solicitor ORDERS: The Respondent's application for the costs of this appeal is dismissed. REASONS FOR DECISION Introduction 1 This decision relates to the costs of appeal proceedings that have been heard and determined. 2 The appeal raised a general issue concerning the limits of the Tribunal's jurisdiction under the Retail Leases Act 1994 ('the RL Act'). Specifically, the question was whether the Tribunal's jurisdiction under the Act may extend in appropriate circumstances to proceedings in which the respondent is a 'stranger' to the lease: that is, neither a party, a former party, a guarantor nor a covenantor under a lease or former lease falling within the definition of 'retail shop lease' in section 3 of the RL Act. 3 In the decision under appeal (Lyons Road Pty Ltd v The Owners Strata Plan 38722 [2007] NSWADT 163), the Tribunal held that it had no jurisdiction to determine proceedings of this nature instituted by the Appellant against the Respondent. The Appellant then appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). 4 In a decision delivered on 5 May 2008 (Lyons Road Pty Ltd v The Owners Strata Plan 38722 (RLD) [2008] NSWADTAP 28), we dismissed the appeal. We also gave directions regarding any application for the costs of the appeal that might be made. These directions provided for written submissions to be filed and stipulated that, unless reasons were advanced for a hearing to be conducted, the question of costs would be resolved 'on the papers', pursuant to section 76 of the ADT Act. 5 The Respondent applied for its costs of the appeal. Both parties filed submissions. Neither of them sought a hearing. Relevant facts 6 The Appellant, Lyons Road Pty Ltd, is the registered proprietor of two lots in Strata Plan 38722, being Shops 13 and 14 within a property in Drummoyne ('the Premises'). The Respondent is the owner of the common property of Strata Plan 38722. 7 In 2004, the Appellant granted a lease of the Premises, governed by the RL Act, to Ms Emelie Zouk (hereafter 'the Lease'). Soon afterwards, Ms Zouk alleged that because there was asbestos in the roof of the Premises and water had penetrated them, she was unable to complete her fit-out or commence trading. On account of these problems, she withheld payment of the rent. Early in 2005, the Appellant purported to terminate the Lease. This prompted Ms Zouk to file an application in the Tribunal and the Appellant to file a cross application against her. 8 Ms Zouk's application was determined in part on 28 June 2005: see Zouk v Lyons Road Pty Ltd [2005] NSWADT 143. The Tribunal held that the Appellant had not been entitled to terminate the Lease, but also that by the time of the hearing the Appellant was no longer in breach of any obligations in respect of asbestos contamination or water penetration within the Premises. 9 The necessary repairs had been carried out on the instructions of the Appellant. It had then obtained reimbursement from the Respondent for the cost of these repairs. 10 Subsequently, in an amended application Ms Zouk claimed damages from the Appellant for the loss of profits allegedly suffered in the period when she was unable to occupy the Premises. 11 The proceeding with which this appeal was concerned was a cross application instituted by the Appellant against the Respondent ('the cross claim'). In the cross claim, the Appellant sought (a) an indemnity from the Respondent with respect to the amended claim brought against the Appellant by Ms Zouk; (b) damages for loss of rent during the period when Ms Zouk did not pay rent; and (c) the amount of the expenses incurred by the Appellant in repairing the Premises, except in far as it has already been reimbursed. 12 In pre-trial proceedings, the Respondent contended that the Tribunal had no jurisdiction over the cross claim. By consent, this question was set down for hearing as a preliminary matter. 13 In the two decisions already mentioned, this contention of the Respondent was upheld by the Tribunal at first instance and by us on appeal. General principles regarding costs 14 If costs are to be awarded, the requirement of 'special circumstances warranting an award of costs' set out in section 88(1) of the ADT Act must be satisfied. Section 77A of the RL Act makes this provision applicable in retail tenancy proceedings conducted in the Tribunal. 15 The case-law on section 88(1) in its application to proceedings under the RL Act includes one Court of Appeal decision (Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81) and a considerable number of Tribunal decisions, both at first instance and in appellate proceedings (see for example Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150, Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164, Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31, Wood & Anor v Bergman (No 2) [2003] NSWADT 175, Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58 and Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43). 16 It is clear from this case law that the requirement of 'special circumstances' applies both to decisions made by the Tribunal at first instance and to Appeal Panel decisions. 17 'Special circumstances' are defined in the case law as 'circumstances that are out of the ordinary, but without having to be extraordinary or exceptional'. It is not enough that the circumstances are 'special': they must also 'warrant' an order for costs. On account of the 'commerciality' of the Retail Leases Division, the interpretation of 'special circumstances' differs significantly from the interpretation that might be adopted in any other Division of the Tribunal. Where costs are sought following the disposal of an appeal, the matters to be taken into account include factors connected with the nature of Appeal Panel proceedings. While various categories of 'special circumstances' have been identified in the case law, these categories are not closed. 18 In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the Court of Appeal held that the costs of proceedings in the Tribunal under the RL Act, both at first instance and on appeal, should be awarded against the lessors. At [60], Santow JA (with whom Mason P and Brownie AJA agreed) stated that the lessors 'so acted as by their conduct to give rise to special circumstances; that is circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned'. He pointed out that by virtue of this conduct, the tenant was 'forced to pursue this litigation'. He also said: 'While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.' 19 One situation that has been held to constitute 'special circumstances' in retail leases cases is where the proceedings instigated, or the grounds of defence raised, by the party against whom a costs order is sought are found to have lacked any real prospect of success and therefore to have been unmeritorious. This includes, but is not limited to, cases where an appeal has suffered a threshold rejection because no 'sufficiently arguable question of law' was disclosed. In the Tribunal's Practice Note on Costs (Practice Note No 12, October 2006) at paragraph 12, the following statement appears: Parties should note that where a review appeal is lodged and the Appeal Panel considers the review appeal was without any real prospect of success this may be regarded as a special circumstance justifying an award of costs. 20 In such circumstances, the purpose of a costs order has been said to be that of preventing the gross abuse of the RL Act by frivolous, vexatious and misconceived proceedings. 21 In addition, as indicated in the Practice Note, 'special circumstances' may be discernible through an examination of the way in which the case has been conducted in the Tribunal. Costs may be awarded, for instance, where a party has been responsible for prolonging unreasonably the time taken to complete the proceeding. The application of these general principles 22 The parties' submissions included statements from which it could be inferred that, in broad terms, neither of them would quarrel with the foregoing outline of the general principles to be applied. Each set of submissions then drew attention to particular aspects of those principles. 23 In the Respondent's submissions, prepared by Mr Mueller, emphasis was placed on the use of the word 'significantly' in the proposition (stated, for example, in Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58 at [12]) that on account of the 'commerciality' of the Retail Leases Division, the interpretation of 'special circumstances' differs significantly from the interpretation that might be adopted in any other Division of the Tribunal. While acknowledging that this did not mean that in the Retail Leases Division costs should simply 'follow the event', Mr Mueller argued that in this Division the Tribunal should be prepared to find 'special circumstances' in a significantly wider range of cases than in other Divisions. 24 The Appellant's submissions, prepared by Mr Philips, drew attention to the proposition that 'special circumstances' justifying an award of costs in appeal proceedings arise when the appeal lacked any real prospect of success and could therefore be characterised as 'unmeritorious' or 'unarguable'. The converse of this proposition, according to Mr Philips, was that when the resolution of an appeal was difficult, some other basis for finding 'special circumstances', such as 'improper conduct, or lack of propriety or diligence in the conduct of proceedings' would have to be established. 25 Mr Philips cited in this context the following dictum in Sarip Investments Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27 at [25]: Arguments by an unsuccessful party that are put forward in good faith and have a reasonable basis do not of themselves entitle a successful party to an order for costs. It may be different if the unsuccessful party had persisted with an unarguable case. 26 Mr Philips pointed out that in our decision on the appeal ( Lyons Road Pty Ltd v The Owners Strata Plan 38722 (RLD) [2008] NSWADTAP 28), we said at [77]: 'We have not found this an easy appeal to determine.' At [89], we referred to this statement, then said, with reference to the question of costs: One consequence of this is that it does not fall within a well-recognised category of 'special circumstances' – namely, where an appeal has been instituted without any reasonable prospect of success. 27 On reconsidering the matter, we see no reason to depart from this last statement. Although this may be a Division of the Tribunal in which 'special circumstances' are more readily discerned than in other Divisions, it is not a Division where costs 'follow the event'. A party who, having succeeded in the substantive aspects of the proceedings, seeks to rely on the comparative merits of the cases put before the Tribunal as a ground for claiming costs will fail in this claim if, as indicated in Sarip Investments , the unsuccessful party's case was 'put forward in good faith' and had 'a reasonable basis'. Those conditions were manifestly satisfied in the present appeal. 28 Mr Mueller also maintained that these appeal proceedings had six 'distinguishing features' which were 'out of the ordinary'. These features, he said, provided a further basis for a finding of 'special circumstances warranting an award of costs'. 29 We will now discuss these 'distinguishing features', recording the arguments on both sides and our response to them. 'The wrong forum' 30 Mr Mueller argued that the cross claim, because it was instituted against a 'stranger' to the Lease, 'was not and never was' within the jurisdiction of the Tribunal. It had been brought in 'the completely wrong forum'. It should therefore, he maintained, be characterised as 'untenable'. By instituting this 'untenable' claim and, moreover, appealing against the Tribunal's adverse decision, the Appellant had caused the Respondent to incur substantial legal costs. 31 In support of this submission, Mr Mueller cited the following dicta of the Tribunal in Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65 at [43 – 44]: 43 The categories of special circumstances are not closed by any means. One of those categories is commencement of proceedings that are untenable at law and the Court of Appeal in Kolavo v Pitsikas and Conomos [2003] NSWCA 59 has made that perfectly clear … 44 … The commencement of proceedings against a party should only be carried out after the greatest of consideration to ensure that proceedings are not commenced in circumstances where they should not have been commenced … 32 For reasons already outlined, however, we agree with the submission by Mr Philips that the Appellant's contention in this case that the Tribunal had jurisdiction to determine the cross claim was not 'untenable'. The premise underlying Mr Mueller's contention on this matter seems to have been that any failure at all to persuade the Tribunal that it has jurisdiction over a claim is enough, without more, to render the claim 'untenable'. But an unsuccessful claim, in the present context, is to be regarded as 'untenable' when it manifestly lacks merit, not simply because the reason for its failure is a determination by the Tribunal that jurisdiction is lacking. 33 We also attach weight to a submission by Mr Philips that the Appellant's decision to file the cross claim was motivated by an understandable desire to have all issues arising out of Ms Zouk's prior claim against the Appellant determined, if that were possible, in the same forum. We acknowledged in our judgment dismissing the appeal (see Lyons Road Pty Ltd v The Owners Strata Plan 38722 (RLD) [2008] NSWADTAP 28 at [73], [86]) that the desirability of minimising inconvenience to the parties in this way was a relevant consideration. 34 We would make the following observations regarding the dicta in Trust Company of Australia Ltd v Craig [2005] NSWADT 65. They appear within a decision awarding costs against a party that had commenced proceedings in the Tribunal, then subsequently withdrawn them 'for commercial reasons'. It was on this ground, not the ground of lack of jurisdiction, that the Tribunal characterised the proceedings as 'untenable'. We might add that Kolavo v Pitsikas and Conomos [2003] NSWCA 59, the Court of Appeal case to which the Tribunal referred, does not on our reading of it bear directly, if at all, on the meaning of 'special circumstances' under section 88 of the ADT Act. Duplicity of proceedings 35 Mr Mueller submitted that a distinguishing feature of this case was that, even though the Appellant had been unsuccessful at first instance and on appeal, its cross claim against the Respondent was still 'live'. Accordingly, the Respondent, having incurred costs in these two sets of Tribunal proceedings, could still be confronted with the same claim by the Appellant in a civil court. This, he argued, would be 'seriously unfair'. 36 Relying on a dictum of the Appeal Panel in Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43 at [8], Mr Mueller submitted that 'serious unfairness' of this nature was well recognised as a basis for a finding of 'special circumstances'. 37 Mr Philips's response was to point out that if the Appellant, having paid the Respondent's costs of this appeal, were later to succeed in civil court proceedings against the Respondent, it could not ask that the costs of this appeal be included in any costs order made in those proceedings. In consequence, it would be paying its own costs and the Respondent's costs in this appeal even though it was ultimately successful in the cross claim. Mr Philips argued that this outcome would be 'unfair' vis-à-vis the Appellant. 38 While it is clear that 'seriousness unfairness' is, at the very least, a 'highly relevant consideration' (see the reference to Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [18] above), we do not think that the Respondent has established that our rejection of its application for the costs of the appeal would subject it to 'serious unfairness', even in the circumstances described by Mr Mueller. 39 The possibility that a party might have to pay extra costs because a defect of jurisdiction becomes apparent is an ever-present risk of litigation. Prima facie, under section 88 of the ADT Act, this risk must be borne by both parties. As we have already said, the fact that a defect of jurisdiction is involved does not of itself constitute 'special circumstances'. The nature of the proceedings 40 Under this heading, Mr Mueller developed an argument based on the fact that these proceedings (a) arose out of a commercial dispute, (b) required the resolution of complex legal issues and (c) included appeal proceedings. 41 With reference particularly to the first of these factors, Mr Mueller relied on cases mentioned above (notably Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164) for the proposition that by virtue of the 'commerciality' of proceedings in the Retail Leases Division, costs in that Division should more readily be awarded in favour of successful parties. 42 Mr Mueller also cited a passage from another case mentioned above, Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31. At [13], the Appeal Panel said: It may be that more use of costs orders should be made where there is an appeal and it is dismissed. At the appeal level, there would seem to be a stronger case for recognising the complexity of retail leases disputes and their commercial character as relevant factors amounting to 'special circumstances'. 43 A further matter emphasised by Mr Mueller was that, on account of the complexity and difficulty of the issues arising in the appeal (he pointed out here that the reasons for our decision 'run for some 91 paragraphs across 23 pages and contain a detailed analysis of the lengthy written submissions filed by the parties'), both parties were compelled to incur the expense of retaining legal counsel. In contrast to many other cases in the Tribunal, this was not a proceeding in which the parties could adequately represent themselves. 44 Mr Philips sought to rebut this argument by contending that while the dispute between the parties had a commercial flavour, the matters resolved in the appeal did not. The appeal, he said, was 'more akin to' appeals in other divisions of the Tribunal where construction of the legislation empowering a decision-maker was 'commonly the central issue'. The legal issues involved were complex, but this was a common feature of appeal proceedings in the Tribunal. 45 We recognise that, as a general principle, 'special circumstances' should be interpreted more sympathetically towards successful parties applying for costs when the proceedings in question arise under the RL Act and/or are appeal proceedings. The fact that appeal proceedings are frequently complex and usually necessitate legal representation is one of the reasons why this is so. But in our judgment these factors do not of themselves constitute 'special circumstances'. Novelty, importance and public interest 46 The last three 'distinguishing features' asserted by Mr Mueller were that the appeal proceedings were 'novel', that they contributed in an important way to the development of retail tenancy law and that a significant element of public interest attached to them. It is convenient to consider these three contentions together, as there are clear links between them. 47 Mr Mueller's submission on the first of these factors was that the proceedings were 'far removed' from the normal proceedings conducted within the Retail Leases Division. They involved the determination of issues (notably, whether the Tribunal had jurisdiction over claims against 'strangers' to a lease) that had not been traversed previously in Tribunal decisions. In his submission, this characteristic of the proceedings rendered them 'out of the ordinary' and amounted to 'special circumstances warranting an award of costs'. 48 With regard to the second factor, he argued that the decision in the appeal, by providing guidance as to the limits of the RL Act, contributed in an important way to the development of retail tenancy law. The submissions put to the Tribunal by the Respondent corporation, which had been compelled to instruct counsel, had assisted significantly in this development. Mr Mueller maintained that this feature too constituted a 'special circumstance'. 49 The final 'distinguishing feature' asserted by Mr Mueller was that a substantial element of public interest attached to this appeal. He indicated that in New South Wales there were nearly 65,000 strata schemes, containing more than 650,000 lots. Many of them contained premises that were subject to retail shop leases. These numbers were increasing. For these reasons, the decision in the appeal, establishing the limits of the Tribunal's jurisdiction in relation to these leases, was of importance to the parties to these leases and to the corporate owners of the buildings involved. 50 Mr Mueller pointed out that in cases where a significant public interest was involved, the courts often made 'special' costs orders. He illustrated this by referring to a Federal Court decision, Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Inc (1991) 100 ALR 568. 51 In that case, the applicant sought an order for indemnity costs after having obtained injunctions against the respondent restraining breaches of section 52 of the Trade Practices Act 1974 (Cth). In deciding in the applicant's favour, Morling J said (at 571-572): What is relevant is that the proceedings were brought for the purpose of restraining the respondent from making misleading or deceptive statements on important matters of public health. I would have taken the same approach to the question whether a special order for costs was justified in the present proceedings if the applicant had not been a public interest group, but, say, a medical society whose members were concerned about the respondent's advertising … The applicant must have incurred very considerable costs in prosecuting these proceedings. In a real sense, the costs were incurred in the public interest. It is very much in the public interest that the respondent be restrained from making statements which might mislead members of the public on matters affecting their health. I do not think it would be in the public interest for a litigant in the position of the applicant to be heavily out-of-pocket in consequence of the public-spirited action it has taken … In Baltic Shipping v Dillon [(1991) 22 NSWLR 1] the court was concerned with the question whether it was appropriate to make an order for costs on a solicitor and client basis in an Admiralty matter … Kirby P (with whose reasons Gleeson CJ concurred) was of the opinion that it was not a prerequisite of the making of an order for costs on a solicitor and client basis in an Admiralty matter that the unsuccessful party's conduct of the litigation had been unmeritorious. He thought that it was appropriate, in that case, that an order for costs should be made on a solicitor and client basis because the proceedings were in the nature of a test case. With respect, I agree with Kirby P's reasoning. 52 By analogy with the approach adopted by Morling J, Mr Mueller argued that we should regard the implications of the decision in this case for the public interest as a 'special circumstance' and should therefore award costs in favour of the successful Respondent. 53 Mr Philips' stance on these matters was as follows. 'Novelty' was in fact a reason why costs should not be awarded against the unsuccessful Appellant. The Appellant, by bearing its own costs of the appeal, had already contributed to the resolution of a previously undecided question and to the development of the law governing the scope of the Tribunal's jurisdiction in cases under the RL Act. To require it to contribute further by paying the Respondent's costs would be unfair, particularly since (a) its conduct in the appeal was proper and appropriate and (b) it was compelled now to incur further costs in pursuing the cross claim in another forum. 54 Our conclusions regarding these three related factors are as follows. 55 We agree that the primary issue raised in the appeal was 'novel', in the sense that it had not been resolved in any prior decision and, as we pointed out in our decision at [77], the RL Act did not clearly indicate how it should be resolved. Accordingly, this aspect of the appeal might well be regarded as constituting a 'special circumstance'. 56 It does not follow, however, that an award of costs is 'warranted'. In Davies v Lyndhurst Developments Pty Ltd [2001] NSWADT 9 (a retail tenancy case) at [35], the Tribunal appeared in fact to treat this same factor as a reason for rejecting an application for costs. We know of no other decision on costs under the RL Act in which the element of 'novelty' has been explicitly dealt with. 57 We are inclined to doubt Mr Mueller's assertions that, compared to other decisions under the RL Act, the decision in this appeal stands out as one of particular importance and as possessing a substantial public interest dimension. A significant proportion of court and tribunal decisions on this Act resolve questions arising from its interpretation, or from the interpretation of common-form retail lease documents. They do not merely apply settled law to findings of fact made following the receipt of conflicting testimony. Decisions of this nature are potentially important for all retail lessors and lessees in New South Wales, who constitute a distinctly larger proportion of the population than those involved in the retail leasing of premises within properties held on strata title. 58 We are not aware of any court or Tribunal decision on costs under the RL Act in which the fact that a decision made an important contribution to the development of retail tenancy law or had a significant public interest dimension was treated as a factor suggesting that costs should be awarded. 59 We are, however, aware of Tribunal proceedings in the Equal Opportunity Division (or on appeal from that Division) in which these matters have been so treated. 60 Under section 110 of the Anti-Discrimination Act 1977, the parties to Tribunal proceedings pay their own costs unless, in the Tribunal's opinion, there are 'circumstances that justify' the making of a costs order. It is established that the criteria to be applied under this section are similar to those applicable under section 88 of the ADT Act. 61 Examples of decisions in which the importance of a disputed point of law and/or an element of public interest have been held to be factors suggesting that costs should be awarded are Collier v Sunol (No 2) [2006] NSWADT 88 (appeal on this issue dismissed in Sunol v Collier [2006] NSWADTAP 51) and Laws v Burns (EOD) [2007] NSWADTAP 72. 62 These decisions were concerned with unlawful homosexual vilification under section 49ZT of the Anti-Discrimination Act 1977. In each of them, it was pointed out that the remedies provided under this section may operate for the benefit of a specified class of people falling within a range defined within the section: that is, not just the complainant. In these cases, the element of public interest was therefore an inherent aspect of the relief sought, not merely an incidental aspect (as here) of the particular question resolved in the litigation. In Collier v Sunol (No 2) [2006] NSWADT 88, emphasis was also placed on the fact that the successful complainant had not sought or obtained any remedy (such as an award of damages) that would benefit him alone. The present proceedings do not, however, have any of these features. 63 These aspects of costs awards in the Equal Opportunity Division draw attention to a matter on which Mr Mueller in his own submissions has placed emphasis. This is that as between the different divisions of the Tribunal, different approaches, appropriate to the subject matter of the claims being brought, must be taken to the interpretation of criteria restricting the awarding of costs, such as the requirement of 'special circumstances'. 64 Although Mr Mueller implicitly sought to liken these proceedings to a 'test case', we do not view them in that way. Unlike the claim instituted in Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Inc(1991) 100 ALR 568, the Respondent in the present case did not raise its objection to the Tribunal's jurisdiction in the knowledge or expectation that some identifiable group within the community stood to derive benefit if the objection prevailed. It did so (it may be presumed) as a common-form measure adopted in order to contest the proceedings that had been instituted against it. 65 We might add that in one of the cases on costs under the Anti-Discrimination Act 1977 to which we have referred – Laws v Burns (EOD) [2007] NSWADTAP 72 – the observation was made at [34] (citing the recent High Court case of CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64) that in test cases, 'courts following the costs-follow-the-event rule have sometimes wholly or partly immunised unsuccessful parties from liability for costs by reference to public interest considerations …' (emphasis added). 66 For these reasons, we reject the Respondent's submissions based on these last three 'distinguishing features'. Our overall conclusions 67 Considered individually, none of the matters urged by the Respondent amounts in our view to 'special considerations warranting an award of costs' under section 88 of the ADT Act. 68 We take the same view when these matters are considered in conjunction with each other. Accordingly, the Respondent's application for the costs of this appeal is dismissed. 30/07/2008 - Body of text completely revised since intial publication of decision on 28 July 2008 - Paragraph(s) All paragraphs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.