Burns v Laws (No 4)

[2007] NSWADT 220

CITATION:	Burns v Laws (No 4) [2007] NSWADT 220
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT John Laws
FILE NUMBER:	051044
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	17 September 2007
DATE OF DECISION:	25 September 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); Mooney L - Non Judicial Member; Quayle C - Non Judicial Member
CATCHWORDS:	Vilification - Homosexual
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Burns v Laws [2005] NSWADT 229 Burns v Laws (No 2) [2007] NSWADT 47 Burns v Laws (No 3) [2007] NSWADT 164
REPRESENTATION:	APPLICANT N Llewellyn, solicitor RESPONDENT J Robb, solicitor
ORDERS:	The Respondent is to pay to the Applicant the costs of and incidental to the Applicant’s application for the costs incurred by him in defending the Respondent’s application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.

1 In the complaint to which these proceedings relate, the Applicant, Mr Gary Burns alleged that the Respondent, Mr John Laws, who is a high-profile radio commentator, unlawfully vilified homosexual men in the course of a radio program broadcast on Radio 2UE, a Sydney radio station, and on an associated network of radio stations across Australia.

2 On 16 June 2005, Mr Laws applied to the Tribunal for an order summarily dismissing the complaint under s. 102 of the Anti-Discrimination Act1977. In a decision delivered on 10 October 2005 (Burns v Laws [2005] NSWADT 229), the Tribunal dismissed the application. It ordered that the costs of the application be reserved.

3 In a majority decision delivered on 1 March 2007 (Burns v Laws (No 2) [2007] NSWADT 47), the Tribunal, constituted by the present members of the Panel, dismissed Mr Burns’ complaint. This decision is the subject of an appeal by Mr Burns to an Appeal Panel.

4 In a further decision delivered on 27 July 2007 (Burns v Laws (No 3) [2007] NSWADT 164 – ‘the costs judgment’), we awarded to Mr Burns the costs of the unsuccessful application by Mr Laws for summary dismissal of the complaint, as agreed or assessed on a party-party basis. Mr Laws has appealed against this decision to an Appeal Panel.

5 Our decision in the costs judgment was based on a conclusion that there were circumstances that ‘justified’ an award of costs, despite the presumption that each party to an inquiry conducted into a complaint under the Anti-Discrimination Act should pay his or her own costs (see s. 110 of this Act).

6 In the concluding paragraph of the costs judgment (paragraph [56]), we stated: ‘Neither party applied for the costs incurred in relation to this application by Mr Burns.’ Order 2 was as follows: ‘There will be no order as to the costs of this application by the Applicant.’

7 In a letter dated 1 August 2007 to the Registrar, Mr Llewellyn, solicitor for Mr Burns, requested reconsideration of Order 2. In a reply dated 8 August 2007, the Registrar advised that the Tribunal was prepared to entertain an application by Mr Burns for the costs relating to his successful application for costs. The Tribunal stipulated that any such application must be filed and served, with supporting submissions, within 21 days, that Mr Laws would have a further 21 days in which to file and serve any submissions in reply and that the matter would then be determined ‘on the papers’. A copy of this letter was sent to Mr Laws’ solicitors.

8 In written submissions dated 17 August 2007, Mr Llewellyn argued to the following effect: (a) that by implication the written submissions filed in support of Mr Burns’ application for the costs of Mr Laws’ application under s. 102 for summary dismissal extended to the costs incurred in making the application for costs; (b) that it would be unfair to Mr Burns if the Tribunal, having awarded to him the costs of successfully defending this application by Mr Laws, decided that he should not also receive the costs of making the successful submissions relating to these costs, which were settled by Senior Counsel; and (c) that for these reasons, the omission of those representing Mr Burns to refer expressly to these costs should not be a consideration debarring him from recovering them.

9 In a letter dated 17 September 2007 to the Registrar, Ms Robb, solicitor for Mr Laws, indicated that since an appeal had been lodged against our decision awarding costs, Mr Laws was content for us to decide this associated question without receiving any submissions from him. She added that Mr Laws reserved the right to agitate this question in the context of the appeal.

10 In our opinion, it is at least arguable that, in determining the costs of the costs application by Mr Burns, the question whether there are circumstances justifying departure under s. 110 from the normal rule that each party pays his or her own costs is one requiring separate consideration. Arguably, this issue is not foreclosed merely by a ruling that the dismissal of Mr Laws’ application under s. 102 occurred in circumstances justifying (through application of the criterion in s. 110) an award of costs against him.

11 On reconsidering the matter, however, we conclude that Mr Llewellyn’s arguments should prevail. It is open to us to make the award of additional costs that he seeks because we did not resolve the matter finally in the costs judgment (the terms of our Order 2 being only that we would ‘make no order’ as to the costs of the costs application). We think that this additional award should in fact be made because there is an inherent unfairness in requiring that a party who succeeds in displacing the prima facie rule that no costs order should be made should have to bear the expense of sustaining this claim. This element of unfairness constitutes circumstances ‘justifying’ an order within the meaning of s. 110.

12 We know of no authority relating to costs under the Anti-Discrimination Act that precludes us from adopting this reasoning.

13 We accordingly order that the Respondent is to pay to the Applicant the costs of and incidental to the Applicant’s application for the costs incurred by him in defending the Respondent’s application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.