Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Margan v Manias [2014] NSWCATAP 16 Hearing dates: 3 February 2014 Decision date: 09 May 2014 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President J Wakefield, Senior Member Z Antonios, General Member Decision: 1. Leave is refused for the appeal to extend to the merits of the Tribunal's decision. 2. The appeal is dismissed. Catchwords: STATUTORY INTERPRETATION - meaning of homosexual vilification provisions - s 49ZT Anti-Discrimination Act 1977 - meaning of 'public act' - identification of relevant audience for incitement Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21 Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 Carter v Brown [2010] NSWADT 109 Green v R [1997] HCA 50; (1997) 191 CLR 344 Jones v Trad [2013] NSWCA 389 JM & JN v QL & QM [2010] NSWADT 66 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Sunol v Collier (No 2) [2013] NSWCA 196 Tuffy v Vaughan & ors (No 2) [2009] NSWADT 242 Category: Principal judgment Parties: Simon Margan (Appellant) Danny Manias (Respondent) Representation: Mr Margan (Appellant in person) No appearance (Respondent) File Number(s): 139034 Decision under appeal Citation: Margan v Manias [2013] NSWADT 177 Date of Decision: 2013-08-07 00:00:00 Before: M Chesterman, Deputy President J Newman, General Member P Smith, General Member File Number(s): 111101 reasons for decision Introduction 1Mr Margan has appealed against a decision of the Administrative Decisions Tribunal in relation to two incidents several days apart during which the respondent, Mr Manias, verbally attacked and later physically attacked him. The Tribunal found that the first of these incidents constituted homosexual vilification in breach of the Anti-Discrimination Act 1977 (NSW) but that the second incident did not. 2Mr Manias did not appear before the Tribunal at first instance or before the Appeal Panel on the appeal. We are satisfied that on 16 December 2013 he was served with a notice at his last known place of address specifying the date and time of the hearing. We heard the appeal in his absence. 3Mr Margan lodged the appeal on 16 September 2013 in relation to a decision of the Tribunal handed down on 7 August 2013. The matter was first listed before the Appeal Panel on 13 December 2013 when an application for adjournment was granted. On 1 January 2014 the Administrative Decisions Tribunal (ADT) was abolished and its jurisdiction was taken over by the Civil and Administrative Tribunal (NCAT). In accordance with Schedule 1 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), these proceedings are 'pending', 'part-heard' proceedings. The members of the ADT who constituted the tribunal before 1 January 2014 are to continue to hear and determine the matter sitting as NCAT. The provisions of the Administrative Decisions Act 1997 continue to apply. Background 4Section 49 ZT(1) of the Anti-Discrimination Act 1977 makes homosexual vilification unlawful: It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. 5This appeal concerns two incidents that took place between Mr Margan and Mr Manias - one on, or shortly before, 9 August 2010 which we will refer to as 'the physical conduct', and one on an unspecified date in the week before 9 August 2010 which we will refer to as 'the verbal conduct'. 6The Tribunal accepted Mr Margan's evidence about what happened on these two occasions. The verbal conduct occurred when Mr Margan was putting up same sex marriage posters along Oxford Street, Darlinghurst. Mr Manias was following him and appeared to be keeping pace with him even when he stopped to put up a poster. Mr Margan heard Mr Manias shouting the following comments, "I am going to eradicate all gays from Oxford Street" "Do not worry I am doing good work." "There are wicked things taking place on Oxford Street." 7The physical conduct, which occurred on 9 August 2010, also involved Mr Manias. Mr Margan was walking along Oxford Street, Darlinghurst at about 10.30 pm after attending a meeting in the area. When he was outside the 7- Eleven convenience store he felt something swish past his head. His statement goes on to state: 13. . . I realised it was someone's foot. I turned to see who had done this, I saw the respondent, Danny Manias. 14. He appeared to be surprised that his foot had not made contact with me. I asked him, "Did you just try to kick me in the face?" 15. He did not reply and paced around on the spot. I tried to move off, but he shadowed my movement in response. There was an obstruction, which meant moving away from this position up the street would have meant moving closer to him. I backed off towards the '7-Eleven' wall. Danny Manias was in between me and the street. 16. There were two girls, of 'islander' appearance, sitting outside the door of the '7-Eleven'. They were laughing and egging the respondent on. I7. I recognised him from previously and was worried he might have a knife... I screamed for help several times and turned my head to see if there was anyone who could come to my aid or witness what was happening. 18. I realised that I had diverted my gaze from my attacker and looked back catching his foot out of the corner of my eye. I saw the sole of Danny Manias' hard-soled heavy-duty shoe. 19. I tried to move backwards, but his foot contacted with base of my eye socket. I felt immediate pain and fell to the ground. 20. The girls on the step were still laughing and I was under the impression they knew the respondent. They said something particularly unsympathetic to my plight, however, I do not remember what it was now. 21... I summoned up some strength and screamed again. I scream[ed] out "Help me! This is a gay bashing" and "I have been assaulted". 22. I was under the impression he was walking away from the incident down the street... 8Mr Manias was convicted of various assault offences relating to this and other incidents which occurred on the same night. He was sentenced to imprisonment for 18 months. Tribunal's decision 9The Tribunal accepted that Mr Margan is homosexual and has standing to lodge the complaint of homosexual vilification: s 88. 10Mr Margan submitted to the Tribunal that although the verbal conduct and the physical conduct took place on different days, they constituted one public act. A public act is defined in s 49ZS: "public act" includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and 11Mr Margan submitted that Mr Manias' verbal conduct and physical conduct should be regarded as 'combined' because: (a)these two instances of conduct occurred in the same location: Oxford Street, Darlinghurst; (b)the Tribunal has taken judicial notice of the fact that this location is 'predominantly associated with the LGBTI community'; (c)the verbal conduct was a 'reinforcement of' the subsequent physical conduct. That submission was based on the definition of 'public act' which includes both speaking, in s 49ZS(a) and 'any conduct . . . observable by the public including actions and gestures' in 49ZS (b); (d)the test of whether unlawful vilification occurred under section 49ZT requires an assessment of the reactions of a hypothetical, not an actual, observer of the relevant conduct. It is irrelevant, therefore, to determine whether any one or more persons witnessed both the 'verbal' and the 'physical' conduct. What should be assessed instead is the reaction of a hypothetical observer of both these instances of conduct. 12The Tribunal was not persuaded by these arguments and found that the verbal conduct and the physical conduct were two separate public acts. 13In relation to the meaning of 'incite' in s 49ZT the Tribunal referred (at [40] to [43]) to the decision of the Court of Appeal in Sunol v Collier (No 2) [2013] NSWCA 196. The Tribunal concluded in light of that decision that the correct approach is to determine whether the public act is capable (or has the effect) of inciting hatred, serious contempt for or serious ridicule of homosexuals in an ordinary member of the class to whom it is directed. 14When considering the verbal conduct, the Tribunal found that the words said by Mr Manias in a loud voice on Oxford Street had the capacity or effect of inciting ordinary members of the audience to which they were directed (that is the general public) to feel hatred and/or serious contempt for Mr Margan and for homosexual men generally on the ground of their homosexuality. The Tribunal ordered Mr Manias to pay $1000 by way of damages and to publish an apology in the Sydney Star Observer, a local newspaper for the gay and lesbian community. 15But in relation to the physical conduct, the Tribunal was not satisfied that there was any incitement of the relevant kind. The Tribunal's reasons for reaching that conclusion can be briefly summarised as follows: (1)At the time of the assault Mr Manias did not say anything that would have encouraged onlookers to have negative feelings about homosexuals. (2)Mr Manias assaulted five victims, seemingly at random, on the same evening. (3)There was no evidence to suggest that in the week before 9 August 2010 Mr Manias recognised Mr Margan as the person who had been putting up gay marriage posters a few days earlier. (4)The fact that Oxford St Darlinghurst is well known to be an area where homosexual people are to be found is not sufficient to suggest that the public act involved incitement on the ground of homosexuality. The attack on Mr Margan took place outside a convenience store and there was no evidence that such a store is frequented predominantly by homosexuals. (5)Any suggestion that the 'islander girls' (who saw some of Mr Manias' behaviour) might have been prompted by Mr Manias' assault to feel hatred or contempt is not relevant because what matters is the reaction of hypothetical, not actual observers. Orders sought 16Mr Margan identified three grounds of appeal on questions of law and also sought leave to appeal against the merits of the Tribunal's decision. Mr Margan can appeal as of right on a question of law but needs the Tribunal's leave before he can appeal against the merits of the Tribunal's decision: ADT Act, s 113. In relation to appeals on questions of law, the Appeal Panel may make such orders as it thinks appropriate in light of its decision: ADT Act, s 114. In relation to appeals on the merits, the Tribunal may decide to affirm, vary or set aside the decision and make a decision in substitution for the decision set aside: s 115. Finally, Mr Margan asked the Appeal Panel to make an order for costs both in relation to the proceedings at first instance and the appeal. Ground 1 - one public act or two? 17The first ground of appeal, which Mr Margan referred to as 'contextual analysis', was that the Tribunal erred by treating the verbal and physical conduct as two separate events instead of one entire event. Alternatively, even if the two incidents were two separate events, the physical conduct should have been analysed in the context of the fact that the verbal conduct had taken place. 18The only question of law we can glean from this ground of appeal is that the Tribunal erred by treating the verbal conduct and the physical conduct as two separate public acts as defined in s 49ZS rather than as one act. An assertion that "the physical conduct should have been analysed in the context of the fact that the verbal conduct had taken place" does not identify a question of law but it does overlap with the second ground of appeal which is addressed below. 19The Tribunal noted at [31] that one of Mr Margan's main submissions was that the two events should be regarded as a single public act. He based that submission on the following points summarised by the Tribunal at [33]: (a) These two instances of conduct occurred in the same location: Oxford Street, Darlinghurst. (b) The Tribunal has taken judicial notice of the fact that this location is 'predominantly associated with the LGBTI community'. (c) The verbal conduct was a 'reinforcement of' the subsequent physical conduct. (d) The test of whether unlawful vilification occurred under section 49ZT requires an assessment of the reactions of a hypothetical, not an actual, observer of the relevant conduct. It is irrelevant, therefore, to determine whether any one or more persons witnessed both the 'verbal' and the 'physical' conduct. What should be assessed instead is the reaction of a hypothetical observer of both these instances of conduct. 20The Tribunal rejected that submission referring to the decision of JM & JN v QL & QM [2010] NSWADT 66 where the Tribunal treated as separate 'public acts' each of a series of alleged incidents in which the two respondents made loud derogatory comments about the applicants, referring to their homosexuality, in a public place. 21In this case the verbal conduct and the physical conduct occurred several days apart although the exact period is unknown. The Tribunal did not err by regarding them as two separate public acts. We do not accept Mr Margan's submission that treating the two incidents as distinct is "an overtly technical separation and defeats the legislation's intention." There is no basis in the legislation for requiring 'one analysis' of these two acts. We also reject Mr Margan's submission that the events should be regarded as a 'course of conduct'. The 'public act' must be a 'communication to the public' including conduct observable by the public. While a communication may take place on more than one occasion, it is a question of fact to determine whether each occasion constitutes a separate public act. 22Mr Margan also mentioned in submissions relating to this ground of appeal that the respondent could have adduced evidence about his intentions at the time or relied on defences available under s 49ZT(2) of the Anti-Discrimination Act. According to Mr Margan, the Tribunal "should not have considered alternative hypotheses to his claim if no such arguments were pressed." This ground of appeal, if it is a separate ground, does not disclose an error of law because there is no onus on Mr Manias to prove that he has not breached the Anti-Discrimination Act. The legal burden of proof is on the applicant to prove his or her case on the balance of probabilities. Having the burden of proof means that, after hearing all the evidence, if the decision maker is not satisfied as to a particular fact in issue, the party with the burden of proof on that issue will fail. In addition, the fact that Mr Manias did not rely on any defences is irrelevant to the question of whether Mr Margan has substantiated his complaint. Ground 2 - assumed knowledge of the audience 23The second ground, referred to as 'the theoretical test', was that the Tribunal erred when determining whether the physical conduct incited hatred because it excluded the hypothetical ordinary person's knowledge of both the prior verbal comments and Mr Margan's homosexuality. 24This ground raises a question of law, or at least a mixed question of fact and law, because it asserts that the hypothetical ordinary member of the public who saw the physical conduct should be taken to have known about other events. According to Mr Margan, an ordinary member of that audience viewing the physical conduct would have known firstly about the earlier verbal conduct and secondly that Mr Margan is homosexual because he was putting up gay marriage posters at the time. 25In the reasons for decision the Tribunal set out the test for incitement articulated by Bathurst CJ in Sunol v Collier (No 2) [2013] NSWCA 196 at [26]-[34] and [41]. At [41] Bathurst CJ provided the following summary of the principle when determining whether a public act incites the relevant emotion: It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. 26At [34] Bathurst CJ explained his preference for the term "ordinary member" of the class, rather than an "ordinary reasonable" member or simply a "reasonable member": [T]o determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation. 27Mr Margan accepted that the relevant test when considering incitement is whether the public act has the capacity or effect of inciting the ordinary member of the audience to whom the public act is directed, to hatred, serious contempt or severe ridicule of a person or group of people on the ground of their homosexuality. His point was that, in relation to the physical conduct, the ordinary member of that class would have been aware of the verbal conduct and would have known by the fact that Mr Margan was putting up gay marriage posters that he is homosexual. The basis for this view was threefold: (1)in cases of provocation, an ordinary person's sensitivity to sexual abuse is relevant: Green v R [1997] HCA 50; (1997) 191 CLR 344; (2)there was no doubt about the factual circumstances of the verbal conduct and the physical conduct and on both occasions the conduct took place in public; and (3)both parties had knowledge of each incident. 28In relation to the first point, the test for provocation involves asking whether an 'ordinary person' in the position of the accused could have been deprived of the power of self-control to the extent of inducing him or her to form an intent to kill or inflict grievous bodily harm. In Green v R, McHugh J stated at 369 that '[a]ll of the accused's attendant circumstances and sensitivities are relevant in determining the effect of the provocation on an ordinary person in the position of the accused'. In particular the ordinary person's sensitivity to sexual abuse is relevant. 29This case does not advance Mr Margan's submission that the 'ordinary person' in relation to a complaint of homosexual vilification should be assumed to know about something that took place in the same vicinity days earlier. The issue is whether the particular public act has the capacity or effect of inciting ordinary members of the audience to which they were directed (that is the general public) to feel hatred and/or serious contempt for Mr Margan and for homosexual men generally on the ground of their homosexuality. 30The audience in relation to any public act is the person or group of people to whom the public act is directed. That person in this case is a hypothetical member of the public who was a witness to the public act: Jones v Trad [2013] NSWCA 389 at [63]. That person may be taken to be aware of significant current affairs and events. But the hypothetical onlooker is not omniscient. He or she is not deemed to know about other events that have taken place between the same two people on another occasion even if those events took place in public. The Tribunal did not make an error of law in relation to what was in the mind of hypothetical members of the audience. Ground 3 - 'on the ground of' homosexuality 31The third ground, referred to as 'independent operation' was that the Tribunal should have found that the assault itself had the capacity or effect of inciting ordinary members of the audience to which they were directed (that is the general public in the vicinity of Oxford Street at the time) to feel hatred and/or serious contempt for Mr Margan and for homosexual men generally on the ground of their homosexuality. While we are unable to identify a question of law in this ground of appeal, we will nevertheless explain why, in our view, it is misconceived. 32Mr Margan made the point that a public act need not involve any verbal communication. It includes 'conduct observable by the public'. The Tribunal accepted that proposition. 33Mr Margan has misunderstood the Tribunal's reasoning when he says that it decided that vilification generally requires an 'articulated homophobic intention'. The Tribunal's decision was not based on a finding of lack of intention on Mr Manias' part. It was based on an objective finding that the conduct did not have the capacity or effect of inciting hatred or serious contempt in a hypothetical ordinary member of the public. Mr Margan acknowledged in other parts of his submissions that the alleged perpetrator's intention is irrelevant. Contrary to Mr Margan's submission, the Tribunal did not find that the physical conduct had to be accompanied by verbal comments to link the attack with Mr Margan's homosexuality. 34We accept that one of the Tribunal's reasons for finding that there had been no incitement in relation to the physical conduct was that Mr Manias did not say anything that would have encouraged onlookers to have negative feelings about homosexuals. But there were several other reasons for that conclusion including those set out by the Tribunal at [59]-[62]: In his submissions, Mr Margan placed strong reliance on his contention that Oxford Street, Darlinghurst - in particular, the section of this street where the assaults occurred - was well known to be an area where homosexual people were often to be found. He maintained that this was a fact of which the Tribunal had taken judicial notice in the past. He also emphasised that the Tum Nak Thia Restaurant, where the first assault occurred, was well known to be frequently visited by homosexuals. It is significant, however, that the next assault, on Mr Margan himself, took place outside a convenience store. There is no immediate reason to believe (and no evidence) that the customers of this store would solely or predominantly constitute homosexuals. The same observation may be made about the location of the three subsequent assaults. We can accept that each of these assaults occurred in a street where homosexuals are often found, but not (in the absence of evidence) where they predominate to such an extent that any victim of an assault taking place there would be assumed to be homosexual. A proposition on which Mr Margan's argument depends is that 'ordinary' members of the public who witness a serious assault on a person will feel 'prompted' or 'spurred on' by what they see to feel 'hatred' or 'serious contempt' for the victim. We cannot subscribe to this proposition, even if the circumstances are such that onlookers might believe that the victim belongs to a group within society (such as homosexual people) that has often been the target of public hostility. It would mean that any assault on a person occurring in a public place where homosexual people are often found would constitute an act of unlawful homosexual vilification, unless the evidence suggests that onlookers would discern a motivation other than homophobia for the assault. Finally, the evidence in this case suggesting that the 'islander girls' might actually have been 'prompted' by Mr Manias's assault on Mr Margan to feel hatred or contempt towards homosexual men is not relevant because, as Mr Margan himself argued, what matters is the reaction of hypothetical, not actual, observers. 35The incitement must be 'on the ground of' homosexuality. Mr Margan needed to demonstrate a connection between the physical conduct and his homosexuality. The Tribunal did not err in finding that, in the circumstances of this case, there was insufficient evidence of such a connection. Extension to merits 36We have found no error of law but that does not prevent the Appeal Panel from considering whether leave should be granted under section 113(2)(b) of the ADT Act for the appeal to extend to the merits of the Tribunal's decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. 37Mr Margan's reasons for asking the Tribunal to extend the appeal to the merits were so that the Appeal Panel could re-assess the damages of $1000 which he regarded as unreasonably small given the impact that the conduct had on him and the loss he suffered. He also said that the jurisdictional limit has been raised from $40,000 to $100,000 so awards of damages should be increased proportionately. Finally, because Mr Manias has not apologised, the Appeal Panel should order that, in default of compliance with that order, further damages should be awarded. 38Mr Margan pointed to other proceedings where significantly higher damages had been awarded. In Carter v Brown [2010] NSWADT 109 (6 May 2010) for example, the Tribunal awarded the applicants a total of $35,000 for complaints of homosexual vilification and victimisation. The Tribunal's reasoning is summarised at [166]: We have no difficulty in finding that the incidents which we have found constitute homosexual vilification and victimisation in relation to Rodney Fisher and homosexual vilification in relation to Jason Brown caused the applicant distress, humiliation, and embarrassment. In doing so, we have had regard to the applicant's oral and written evidence, the strength of the language used, the violence implicit and explicit in that language, that the words were spoken in public, and in the presence of others on occasion, including the applicant's mother and stepfather and son. We also take into account that these acts occurred in and around the complex in which the applicant lived. In relation to Jason Brown the discriminatory conduct took place over many months and in relation to Rodney Fisher over 12 months. 39Damages under s 108(2)(a) of the Anti-Discrimination Act are to be assessed on the basis that they are awarded to compensate the person for loss or damage suffered as a result of the unlawful act. While the equivalent principles within tort and contract law provide a guide, they are not 'controlling': Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [23 - 27], [48]). The cases provide very little guidance on the approach to be adopted where there is no economic loss and damages are to compensate for injury to feelings. 40Given that the incident for which the Tribunal awarded Mr Margan $1,000 took place on a single occasion and the Tribunal found at [69] that the words were only address "in part" to Mr Margan, we are not persuaded on the basis of the much higher awards of damages in Carter v Brown, that we should interfere with the Tribunal's assessment. Because the Tribunal did not find that the second incident constituted homosexual vilification, no damages were awarded in relation to that incident. As the Tribunal explained at [67] and [68]: The fact that we have rejected the complaint in relation to the physical conduct of Mr Manias has particularly strong implications for Mr Margan's claim for damages. But for this, an award in the vicinity of the substantial amount that he sought might well have been justified. As indicated above at [25], the injuries that he sustained were serious and have caused him to suffer continuing disabilities. He also provided evidence of a substantial loss of earning capacity, for which, he said, a claim successfully brought by him under victims' services legislation did not compensate him. These matters fall, however, outside the range of compensation that may be awarded with respect to the claim in respect of the verbal conduct. They fall more naturally within the scope of common law proceedings for damages for trespass to the person. (In this connection, we note that, subject to some exceptions that might be relevant on the facts of this case, the standard limitation period of three years for such proceedings is close to expiring.) 41The fact that the jurisdictional limit has been raised from $40,000 to $100,000 is irrelevant. The compensatory principle must be applied. 42Finally, Mr Margan submitted that the Tribunal should have made an order under s 108(7): If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order. 43The provisions referred to in s 108(7) include an order that the respondent publish an apology. There is no provision for default orders where the respondent does not pay damages. 44It would have been open for the Tribunal to make a default order for payment of an amount in damages if the respondent failed to apologise as ordered. That is a discretionary matter for the Tribunal to determine. The Tribunal did not make an error of law in deciding not to do so, nor do we consider that its failure to do so justifies extending the appeal to the merits of the Tribunal's decision. Fresh evidence 45Mr Margan sought to tender fresh evidence in relation to the attitudes of ordinary members of the public to homosexuals and to make submissions based on that evidence. The evidence was said to be relevant because of the findings of the Court of Appeal in Jones v Trad [2013] NSWCA 389, a decision handed down in November 2013, about three months after the Tribunal's decision at first instance. In that case the Court considered the meaning of the word "incite" in relation to s 20C(1), the relevantly identical racial vilification provision: Jones v Trad [2013] NSWCA 389. Ward JA, with whom Gleeson JA and Emmett JA agreed, considered at [53] that the "nub of the dispute in the present case goes to the identification, or more precisely the contended absence thereof, of the relevant audience to which the . . . broadcast was directed." 46The Court concluded at [61] to [63] that the Tribunal at first instance had erred in law. The first error was failing to make a finding identifying the audience in relation to which the likely effect of the public act could be assessed. The second error was failing to consider the likely effect of the public act on an ordinary member of that audience. Her Honour quoted Bathurst CJ's view in Sunol v Collier (No 2) that the decision maker should consider the particular class to whom the speech or other public act is directed. 47Given this decision, Mr Margan sought to tender fresh evidence identifying the relevant audience. 48Section 49ZT(1) relates to public acts. By definition, the relevant audience is members of the public. The purpose of identifying the particular audience is so that the likely effect of the public act on a hypothetical, ordinary member of that audience can be assessed. Attributes or characteristics of the audience which may inform an assessment of the likely effect of the public act are relevant but there is no requirement that, in order for a complaint to be substantiated, formal evidence must be adduced of those matters. Similarly, a complaint will not fail merely because an applicant does not identify the number of people who became aware of the public act or where they were located in New South Wales when that happened. 49The Tribunal at first instance found at [49] and [61] that the relevant audience was ordinary members of the public. The Tribunal correctly assumed that those members of the public were people 'hearing' the words spoken on the first occasion and 'observing the assault' on the second occasion (See [49] and [58]). The Tribunal identified the relevant audience and considered the likely effect of the public act on an ordinary member of that audience. The Tribunal also made the point at [62] that it is the reaction of hypothetical, not actual, observers that is being assessed. 50In relation to the admission of further evidence, the Appeal Panel has summarised the relevant principles in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 (12 March 2008) at [52] to [57]. The second of those principles is the most relevant to this case: 54 Secondly, if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be 'affirmatively satisfied' that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was 'likely to have produced a different result'. This criterion appears in the paragraph just quoted from CDJ v VAJ. The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an 'opposite result would have been produced' or it would have been 'unreasonable to suppose the contrary' (see the passage from Council of the City of Greater Wollongong v Cowan that the Appeal Panel in Young quoted at [21]). But it is not enough merely to show that the further evidence is 'useful', or that its admission would have given rise to a 'real chance' that the Tribunal would have reached a different decision (see CDJ v VAJ at [151]; Young at [31]). 51Mr Margan did not tender any evidence at first instance in relation to the demographic composition of the hypothetical audience or the attitudes that such members would have to homosexuality. But we do not understand the Court of Appeal in Jones v Trad [2013] NSWCA 389 to have decided that a complaint of vilification cannot be substantiated unless such evidence is adduced. The test is to be applied to an ordinary 'hypothetical' member of that audience. 52In any case, Mr Margan has not persuaded us that if this evidence had been before the Tribunal it was 'likely to have produced a different result'. 53In relation to the first incident, the Tribunal found that the following words, in context, constituted homosexual vilification: "I am going to eradicate all gays from Oxford Street" "Do not worry I am doing good work." "There are wicked things taking place on Oxford Street." 54Regardless of the particular demographic characteristics or attitudes of a hypothetical person in Oxford Street at the time, the words would have 'reached the mind' of an ordinary member of that audience as something which would encourage the requisite emotion. The question is not whether a person would have hated or had severe contempt for homosexuals after hearing those words. The question is whether the words would have the effect of inciting or encouraging the requisite emotion. 55The Tribunal's decision in relation to the physical conduct was based on a finding at [55] that there was no incitement of the relevant kind. Regardless of the particular demographic characteristics or attitudes of a hypothetical person in Oxford Street at the time, the conduct would not have 'reached the mind' of an ordinary member of that audience as something which would encourage the requisite emotion. That is because of the context in which that conduct occurred. Mr Manias did not say anything about homosexuals at the time, he assaulted five victims on that night, seemingly at random and there was no evidence that Mr Manias recognised Mr Margan. Even if there had been evidence as to the demographic composition or attitudes of a hypothetical ordinary member of the audience, the Tribunal's decision would have been the same. 56For these reasons the Appeal Panel refuses leave for Mr Margan to adduce further evidence on appeal. Costs 57Even though he did not make a formal application for costs at first instance, Mr Margan applied to the Appeal Panel both for those costs and for his costs on appeal. We are satisfied that the Appeal Panel has jurisdiction to make an order in relation to costs at first instance even if no such application was made at the time: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21 (6 April 2010) at [75]. We also find that although Mr Margan was not legally represented in either proceedings he is entitled to claim costs such as filing fees and photocopying. For a recent review of the principles that may apply to an application for costs and expenses by a litigant in person, see Tuffy v Vaughan & ors. (No 2) [2009] NSWADT 242. 58The Tribunal may award costs under section 88 of the ADT Act in respect of proceedings before the Tribunal in relation to a complaint. (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 include: (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.' 59Section 88(1) reflects the principle that each party is to bear its own costs. Unlike the situation in some other jurisdictions, the winner cannot expect to receive his or her legal costs from the loser. The Tribunal may only vary this principle if it considers it 'fair to do so' having regard to the matters in s 88(1A). The reasons Mr Margan gave for applying for costs were that the respondent gave a 'fraudulent address' for service. 60Even if Mr Manias provided a false address, costs are not to be awarded as a penalty for bad behaviour. The Tribunal has previously acknowledged that the costs power should not be used as a "sanction to punish agencies for poor administration": Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56 at [57]. Similarly, it should not be used as a sanction to punish applicants for any improper conduct unless that conduct has led to the other party incurring unnecessary costs. 61As well as his expenses associated with the proceedings, Mr Margan submitted that the Appeal Panel should award: (1)the costs of enforcing the Tribunal's decision that the respondent pay him $1,000 in damages in the sum of $10,000; and (2)'punitive' damages for non-compliance with the Tribunal's orders in the sum of $30,000. 62Neither of these matters is a proper subject for a costs order. Costs on appeal 63Mr Margan made no submissions as to why it would be fair to award costs on appeal and we decline to do so. Orders 1. Leave is refused for the appeal to extend to the merits of the Tribunal's decision. 2. The appeal is dismissed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 09 May 2014