Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Trad v Jones (No 8). [2015] NSWCATAD 64 Hearing dates: On papers after 6 March 2015 Decision date: 07 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy, LCM Deputy President M Bolt, General Member J Schneeweiss, General Member Decision: The Respondents are to pay the Applicant's costs of these remitted proceedings, apart from the costs thrown away by the adjournment of 11 May 2014, as agreed or, if not agreed, as assessed in accordance with the Legal Profession Act 2004 (NSW). Catchwords: COSTS – proceedings under Anti-Discrimination Act 1977 remitted from Court of Appeal and re-determined – whether fair to award costs – unreasonable refusal to accept offer of settlement – basis on which matter remitted – orders on remittal substantially the same –fair to award costs Legislation Cited: Administrative Decisions Tribunal Act 1997, s 88(1A), s 3 (repealed) Anti-Discrimination Act 1977 (NSW), s 20C Civil and Administrative Tribunal Act 2013 (NSW) Sch1, cl 6 and 7 Cases Cited: Fairburn v Cummins [1961] VR 105 Field v Great Northern Railway Co (1878) 3 Ex D 261 Jones Trad [2013] NSWCA 389 Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 Jones and Harbour Radio Pty Limited v Trad (No 2) [2011] NSWADTAP 62; Trad v Jones (No. 3) [2013] NSWADTAP 13 Trad v Jones (No 3) [2009] NSWADT 318 Trad v Jones (No 4) [2012] NSWADT 265 Trad v Jones (No 5) [2013] NSWADT 127 Trad v Jones (No 7) [2014] NSWCATAD 225 Category: Costs Parties: Keysar Trad (Applicant) Alan Jones (First Respondent) Harbour Radio Pty Ltd (Second Respondent) Representation: Counsel: File Number(s): 131126 REASONS Introduction 1. The Applicant, Mr Keysar Trad, has applied for the Respondents, Mr Alan Jones and Harbour Radio Pty Ltd, to pay his costs of the first instance and the remitted proceedings relating to the same complaint of racial vilification under the Anti-Discrimination Act 1977 (NSW). The complaint is about comments Mr Jones made on Radio 2 GB in April 2005. 2. Because an order has been made for the Respondents to pay the Applicant's costs of the first instance proceedings, the Tribunal has no power to confirm that order or make another costs order in relation to those proceedings. 3. In relation to the proceedings that were remitted by the Court of Appeal, for the reasons we give below, it is fair for the Respondents to pay the Applicant's costs of those proceedings. 4. The Applicant also applied for the costs of making the costs application. The Respondent applied for the costs of responding to the costs application. Costs have not been awarded in relation to either of those applications. History 1. The Applicant complained that the Respondents had breached s 20C of the Anti-Discrimination Act which states that: 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 persons or members of the group. 1. The Respondents denied liability and relied on the 'public interest' exception in s 20C(2)(c): (2) Nothing in this section renders unlawful: (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.. 1. The first instance proceedings took place in the Administrative Decisions Tribunal (ADT) in 2009: Trad v Jones (No 3) [2009] NSWADT 318. The Tribunal found that the Applicant's complaint of racial vilification against the Respondents in relation to what has been called the Schedule A broadcast, had been substantiated. The Tribunal ordered the Respondents to pay the Applicant $10,000 in damages, to apologise on Radio 2 GB and to review their policies and practices on racial vilification. In a separate decision, the Tribunal ordered that, in the absence of agreement between the parties in relation to the wording of an apology, the Respondents should apologise in certain terms: Trad v Jones (No 4) [2012] NSWADT 265. 2. Following the first instance hearing the ADT directed that any application for costs would be determined 'on the papers', that is, without the need for a hearing. 3. Both parties appealed against the first instance decision to the Appeal Panel. The determination in relation to costs was stood over until after the Appeal Panel had determined the appeal. The Appeal Panel determined the appeal broadly speaking in favour of the Applicant, but declined to make any costs orders in relation to the first instance hearing, leaving that matter to be dealt with by the Tribunal at first instance: Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19; Jones and Harbour Radio Pty Limited v Trad (No 2) [2011] NSWADTAP 62; Trad v Jones (No. 3) [2013] NSWADTAP 13 at [2]. 4. The Respondents then appealed to the Court of Appeal. 5. Before the Court of Appeal handed down its decision, the ADT heard and determined the costs application in respect of the first instance hearing: Trad v Jones (No 5) [2013] NSWADT 127. The Tribunal found that it was fair that the Respondents pay the Applicant's costs from 6 June 2007. 6. The basis on which the ADT ordered costs in relation to the first instance hearing was summarised at [2] of the reasons: 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. 1. The ADT noted that one of the remedies ordered following the first instance hearing was an apology. By the time of the costs decision in relation to the first instance hearing, the wording of that apology had been determined by the Tribunal in similar terms as had been sought in the offer of settlement. The apology has now been broadcast. 2. On 1 July 2013 the Respondents appealed to the Appeal Panel against the first instance costs order. That application was stood over pending the Court of Appeal's decision. 3. The Court of Appeal handed down its decision on 20 November 2013: Jones Trad [2013] NSWCA 389. The Respondents submitted to the Court of Appeal that the Tribunal's costs order in relation to the first instance hearing should be set aside as this would dispose of their appeal to the Appeal Panel in respect of that order. Ward J (with whom Emmett and Gleeson JJA agreed) rejected that submission holding at [60] that the costs order was 'in fact already the subject of appeal and should be dealt with by the Appeal Panel in the ordinary course'. 4. The Court of Appeal set aside the Tribunal's order substantiating the complaint in relation to the Schedule A broadcast and remitted that part of the complaint to the Tribunal for determination in accordance with law. The remitted matter was heard by the Civil and Administrative Tribunal in 2014: Trad v Jones (No 7) [2014] NSWCATAD 225. 5. To comply with the Court of Appeal's decision, the Tribunal needed to identify the audience to whom the Schedule A broadcast had been directed. The Tribunal found at [43] that: . . .the audience comprised those people listening to Mr Jones' commercial talk-back radio program at 9.20 am on 28 April 2005, either on the radio or via other means such as the internet. They were approximately 151,000 to 157,000 in number and the vast majority lived in the Greater Sydney metropolitan area. We also know the approximate percentages of males and females, those over and under 55 years old and whether they were listening at home, while driving or while at work. 1. The Tribunal then needed to consider the likely effect of the broadcast on an ordinary member (or perhaps an ordinary reasonable member) of that audience. The Tribunal found at [76] that the words Mr Jones used, in context, urged or stimulated listeners to hatred or, at least, serious contempt of Lebanese males and that there was no doubt that it would have reached the mind of the audience as something which had that effect. At [100] –[106] the Tribunal considered whether the Court of Appeal's decision made any difference to the application of the 'public interest' exception to either Respondent and decided that it did not. 2. The Tribunal found the complaint to be substantiated and made orders which were the same as, or similar to, the orders the Tribunal had made at first instance. The Tribunal ordered the Respondents to pay the Applicant $10,000 in damages and to report to Mr Trad and the Tribunal within 6 months of the outcome of a critical review of its 2005 programs and policies on the prevention of racial vilification. The Tribunal also ordered the Respondents to pay the Applicant's costs thrown away by the adjournment of the remitted hearing on 14 May 2015. 3. The Tribunal made directions in relation to the filing and service of any application for costs. This decision relates to those applications. Costs of the first instance hearing 1. The Applicant applied for costs in relation to the remitted hearing and also submitted that it was appropriate that the Tribunal now confirm the costs order made in his favour by the Tribunal in relation to the first instance hearing. 2. The rule at common law is that where a new hearing is ordered, the court that ultimately gives the decision following the new hearing ordinarily retains its discretion to award costs in relation to both the aborted and the new hearings: Field v Great Northern Railway Co (1878) 3 Ex D 261; Fairburn v Cummins [1961] VR 105. 3. That rule cannot apply to the Tribunal in these proceedings because the Tribunal has made a costs order in relation to the first instance hearing which is still in force. The Appeal Panel has not yet determined the Respondents' appeal from that decision. The Tribunal, as presently constituted, has no jurisdiction to confirm or otherwise entertain an application for costs in relation to the first instance hearing. Costs of the remitted proceedings 1. In its decision following the remittal of the matter by the Court of Appeal, the Tribunal ordered the Respondents to pay the costs thrown away by the adjournment on 11 May 2014: Trad v Jones (No 7) (2014) NSWCATAD 225. The Applicant applies for costs to be awarded in relation to the remainder of the remitted proceedings. 2. Section 110 of the Anti-Discrimination Act gives the Tribunal power to award costs under s 88 of the Administrative Decisions Tribunal Act. Those provisions, which have since been repealed, continue to apply because these proceedings were remitted to the ADT in 2013, before that Tribunal was abolished and became part of the NSW Civil and Administrative Tribunal. The transitional provisions in relation to proceedings that were pending but unheard prior to 1 January 2014 provided that the Civil and Administrative Tribunal may exercise all the functions the abolished Tribunal had immediately before its abolition. The legislative provisions that applied at that time continue to apply: Civil and Administrative Tribunal Act 2013 (NSW) Sch1, cl 6 and 7. 3. Section 88 of the Administrative Decisions Tribunal Act provides 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. Submissions 1. The Applicant submitted that the basis for the costs order in the first instance hearing also applies to the remitted hearing. A positive response to the offer of an apology made by the Applicant prior to 6 June 2007, would have avoided all the costs the Applicant has incurred since that date. The Applicant also highlighted the fact that that offer was significantly more beneficial to the Respondents than the ultimate orders made following the remitted hearing which included $10,000 in damages and orders requiring a review of policies and procedures. Consequently, the Applicant submitted that it is "fair" for the Tribunal to award costs in the remitted proceedings. 2. According to the Respondents, their refusal to accept the offer of settlement which expired on 6 June 2007 is not a proper basis for determining whether it is fair to award costs in the remitted proceedings because: 1. none of the factors in s 88(1A)(a)-(d) is present; 2. the Applicant conducted the proceedings in a way that unnecessarily disadvantaged the Respondents; 3. following the remittal of the proceedings by the Court of Appeal, the Applicant did not renew his offer of compromise and did not respond to an offer the Respondents made; 4. the remitted hearing was conducted in an efficient and timely manner; 5. the Respondents should not be punished by an award of costs for being unsuccessful on the narrow issues the Tribunal considered in the remitted hearing; and 6. the Applicant did not provide a 'precise statement of the amount of costs actually sought and its components' in accordance with the ADT's Costs: Guideline. Consideration 1. The general rule is that each party is to pay his or her own costs. It is only where the Tribunal is satisfied that it is fair to do so that the Tribunal should exercise its discretion to award costs. 2. We do not accept the Respondents' submission that we should give significant weight to the fact that the Applicant has relied on the 'catch all' factor - "any other matter that the Tribunal considers relevant", rather than on any of the specific matters in s 88(1A)(a)-(d). No authority was cited for the Respondents' submission and we are not aware of any principle of statutory construction that supports it. The Court of Appeal held in AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33] that s 88(1A)(e) must be "read in its context." That does not mean that any consideration under s 88(1A)(e) should be given less weight than any other consideration. 3. The Tribunal referred to the Court of Appeal's decision when summarising the principles relating to orders for costs under s 88 of the Administrative Decisions Tribunal Act in the decision relating to costs of the first instance proceedings: Trad v Jones (No 5) [2013] NSWADT 127 at [35] – [38]: [35] 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]. [36] 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]. [37] 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... [38] 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. 1. In Jones v Ekermawi (No 2) [2013] NSWADTAP 18 the Appeal Panel of the ADT considered an application for costs of internal appeal proceedings under the Anti-Discrimination Act. In reaching a decision on that issue, the Appeal Panel differentiated between exercising the discretion to award costs at first instance and on appeal when the issue was the strength of the case: s 88(1A)(c). The Appeal Panel expressed the view that the Tribunal should 'exercise great circumspection around making first instance costs orders.' The considerations on appeal were said to be somewhat different. We agree that, in general, it is more likely to be fair to award costs against an unsuccessful party because of the weakness of the case on appeal than because of the weakness of the case at first instance. That is not the situation in these proceedings. 2. There is a rule in jurisdictions where costs generally 'follow the event', that the costs of an abortive trial should be consistent with (or "abide") the costs of the new trial and are paid by the party who is eventually unsuccessful: Malpas v Malpas (1895) 11 VLR 670 at 710; Colzato v Cmr for Railways [1967] 2 NSWR 656. That general rule may not be applied in circumstances where the conduct of a party has caused the first trial to be aborted including conduct that led the trial judge to fall into error: Monie v Commonwealth (No 2) [2008] NSWCA 15 at [57] – [62]. No such conduct was alleged in these proceedings. 3. The question for the Tribunal is whether, despite the general rule relating to costs in s 88 of the Administrative Decisions Tribunal Act, it is fair for the Respondents to pay the Applicant's costs. That question involves the Tribunal exercising a discretion. A consideration relevant to the exercise of that discretion is the fact that the Applicant made an offer in 2007 and that that offer turned out to be significantly more favourable to the Respondents than the orders that the Tribunal ultimately made. 4. We rely on the Tribunal's reasoning in the first instance costs decision including the conclusion at [71] that: 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. 1. As we have said, one of the objects of the ADT Act set out in s 3(c) is "to "enable proceedings before the Tribunal to be determined in an informal and expeditious manner." 2. We accept the Applicant's submission that one consequence of the Respondents not responding to a reasonable offer of settlement which expired on 6 June 2007 is that the Applicant has incurred costs in the remitted proceedings. We also accept that the link between that failure to respond and the remitted proceedings is more remote than it is for the first instance proceedings. The Respondents appealed against the first instance decision and the Court of Appeal set aside those orders because of errors of law. But those errors made no appreciable difference to the Tribunal's ultimate decision. This is not a case where an award of costs would punish the Respondents for being unsuccessful on the issues the Tribunal considered in the remitted hearing. The terms of the offer that the Applicant originally made were significantly more favourable to the Respondents than the orders that the Tribunal ultimately made at first instance and following remittal. As well, the other matters on which the first instance costs decision was based continued to apply. 3. That conclusion is not affected by any of the Respondent's other submissions. 4. The fact that the Applicant did not renew his offer of compromise after the Court of Appeal handed down their judgment does not change the fact that the Applicant would not have had to incur the costs of the remitted proceedings had the Respondents accepted the 2007 offer. . 5. The Respondents provided evidence that they made an offer of compromise on 3 April 2014 to which the Applicant did not respond. The Respondents did not apply for the Applicant to pay their costs of the remitted proceedings nor does the making of any such offer affect the fact that the Applicant has incurred costs in relation to the first instance and remitted proceedings. 6. The Respondents gave four examples of where, in its view, the Applicant had conducted the remitted proceedings in a way that unnecessarily disadvantaged the Respondents: s 88(1A)(a). These matters are not relevant because the Respondents have not applied for their costs. 7. We take into account the fact that, apart from the costs thrown away by the adjournment on 11 May 2014, there is no other basis put forward by the Applicant in relation to the way the Respondent conducted the proceedings as a reason for awarding costs. The Applicant does not submit, for example, that the Respondents conducted the proceedings in an unfair or inefficient manner. 8. Nevertheless, in case it is found to be relevant, we will address each of the Respondent's allegations about the Applicant's conduct. 9. The first example was that the Applicant was 6 days late in filing documents that the Tribunal had directed be filed. The Respondents did not indicate how that short period of non-compliance unnecessarily disadvantaged them and it is not apparent why that would be the case. 10. The second example was that the Applicant argued a matter that was not in the pleadings and that the Respondents were thereby put to additional and unnecessary expense in responding to that material. The Tribunal noted in the decision at [6] that that matter was not a contention which appeared in the pleadings. Nevertheless, the Tribunal addressed it in the remitted proceedings. 11. In circumstances where the Tribunal allowed the Applicant to raise the issue, and the Respondents were not denied procedural fairness, we do not accept that the Respondents were unnecessarily disadvantaged even though the Applicant was not ultimately successful on that issue. The objectives of the Administrative Decisions Tribunal Act include, "to enable proceedings before the Tribunal to be determined in an informal and expeditious manner": s 3(c). 12. The third example was that the Applicant raised in oral submissions matters that were not contained in his written submissions namely the seven factors relating to the likely effect on the audience of Mr Jones' comments. We do not accept that in the circumstances of this case, having to respond to an oral submission that was not also part of submissions made in writing, is conduct which unnecessarily disadvantaged the Respondent. 13. The final example is that the Applicant sought "exorbitant" costs of the adjournment of the proceedings on 14 May 2014 in the amount of $39,600. The Tribunal ultimately concluded that an amount in the vicinity of $15,000 was an appropriate figure, failing agreement between the parties: Trad v Jones (No 7) [2014] NSWCATAD 225 at [148]. That matter may be relevant if the Respondents were seeking their costs in relation to the Applicant's application for costs of the adjournment proceedings. Such an application is not the subject of these proceedings. 14. The fact that the Applicant did not provide a 'precise statement of the amount of costs actually sought and its components' in accordance with the ADT's Costs: Guideline is not a reason to refuse the application for costs. 15. Taking into account all the relevant circumstances, it is fair for the Respondents to pay the Applicant's costs of the remitted proceedings, apart from the costs thrown away by the adjournment of 11 May 2014 which is the subject of a separate costs order. 16. We make that order on the basis that costs are agreed, or if not agreed, assessed in accordance with the Legal Profession Act 2004 (NSW). Costs of the Applicant's costs application 1. The Applicant also applied for his costs in relation to the making the costs application. No submissions were provided in support of that application. The general rule is that each party pays his or her own costs and there are no circumstances of which we are aware, that would make it fair to order the Respondent to pay the costs of the Applicant's costs application. 2. The Respondent applied for their costs of responding to the Applicant's costs application because the Applicant applied for his costs of the first instance proceedings when the Tribunal has no jurisdiction to determine that application. We have accepted the Respondents' submission that the Tribunal has no jurisdiction and agree that that part of the Applicant's application was extremely weak. The remaining part of the Applicant's application in relation to the remitted proceedings was not weak, and has been accepted. The weakness of one aspect of the application does not, in all the circumstances, displace the general rule that each party should pay their own costs. 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: 07 April 2015