Burns v Laws

REASONS FOR DECISION Introduction 1 In the complaint to which these proceedings relate, the Applicant, Gary Burns, alleged that the Respondent, John Laws, who is a high-profile radio commentator, unlawfully vilified homosexual men in the course of two radio programs broadcast by Radio 2UE, a Sydney radio station. 2 This judgment relates to an application by Mr Laws for the complaint to be summarily dismissed, on the ground that the predominant purpose of Mr Burns in instituting and maintaining these proceedings is an improper purpose, namely, obtaining publicity for himself. The application has been brought before the matter has been set down for a substantive hearing. 3 The radio programs in question were broadcast by Radio 2UE on the mornings of 3 and 4 November 2004. On 17 November 2004, Mr Burns forwarded a complaint to the Anti-Discrimination Board claiming that certain statements made by Mr Laws in the earlier broadcast amounted to unlawful vilification. On 31 March 2005, the President of the Board, having determined that the matter could not be resolved through conciliation, referred the complaint to the Tribunal. On 10 June 2005, Mr Burns filed Amended Points of Claim in which he confirmed that he wished to enlarge the scope of his complaint to include further statements by Mr Laws in the broadcast of 3 November and some statements in the broadcast of 4 November. 4 In his Amended Points of Claim, Mr Burns asserted that the statements made by Mr Laws constituted unlawful homosexual vilification under s 49ZT of the Anti-Discrimination Act 1977 ('the AD Act'). Section 49ZT(1), which is qualified by a number of defences set out in s 49ZT(2), provides: 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. 5 In the Amended Points of Claim, Mr Burns stated that he was a homosexual man and was entitled to bring these proceedings. He alleged that he had suffered distress, anger, insult and mental suffering in consequence of Mr Laws' statements. He sought from the Tribunal orders that Mr Laws should pay damages and his legal costs and should apologise for his statements, both in the radio session that he presented each morning on 2UE and in various newspapers. 6 Transcripts of relevant parts of the two broadcasts on Radio 2UE were admitted into evidence in the hearing of this application. It is not necessary to summarise their content here. This is because the merits of Mr Burns' complaint were not relevant to the determination of this application by Mr Laws for summary dismissal, in the form in which the application was argued before us. The grounds of the application for summary dismissal 7 Under s 102 of the AD Act, the Tribunal, at any stage in proceedings relating to a complaint, may dismiss the complaint on any ground on which the President of the Anti-Discrimination Board may decline a complaint under s 92(1)(a)(i) or (ii) or s 92(1)(b). Under s 92(1)(a)(i), a ground on which the President may decline a complaint is that it is 'frivolous, vexatious, misconceived or lacking in substance'. 8 In this application for dismissal of Mr Burns' complaint, the claim made by Mr Laws is that the proceedings are 'vexatious' because the predominant purpose of Mr Burns in instituting and maintaining them is the improper purpose of obtaining publicity for himself. 9 The authority on which Mr Reynolds SC, counsel for Mr Laws, principally relied was the High Court case of Williams v Spautz (1992) 174 CLR 509. It establishes that civil or criminal proceedings may be permanently stayed on the ground that they constitute an abuse of process, if it is shown that the predominant purpose for which they have been instituted and/or maintained is an improper or 'collateral' purpose. Mr Rofe QC, counsel for Mr Burns, did not dispute that proceedings falling within these principles set out in Williams v Spautz would be 'vexatious' proceedings within s 92(1)(a)(i) of the AD Act, and therefore liable to summary dismissal under s 102. 10 At the commencement of the hearing, Mr Reynolds indicated that, contrary to statements made in written submissions filed earlier, he would not contend, when arguing in support of this application for summary dismissal, that Mr Burns' complaint lacked merit. Mr Rofe then advanced, by way of preliminary objection to the application, the submission that proceedings could not be declared vexatious and an abuse of process on the ground that they were brought for an improper purpose unless in addition they were shown to be unmeritorious. Mr Rofe sought, in effect, to have Mr Laws' strike-out application struck out, on the ground that no argument or evidence was being offered in order to satisfy this additional requirement. 11 In an ex tempore ruling given on 1 August 2005, we disallowed this objection. It was based on a statement of principle by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, subsequently applied by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC 142. We held, however, that a passage, to which we will refer again, in the majority judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz (at 521-522) showed clearly that the law did not impose any such additional requirement. We said also that, on our reading of Roden J's explanation of the term 'vexatious', he included this additional requirement only when he was dealing specifically with proceedings under s 84 of the Supreme Court Act 1970 for a declaration that a person was a 'vexatious litigant'. The evidence relied on by Mr Laws 12 Much of the evidence tendered by Mr Reynolds took the form of records of statements made, orally or in writing, by Mr Burns. They formed part of, or were annexed to, affidavits filed on behalf of Mr Laws. None of the deponents was required to attend for cross-examination. 13 A number of these statements were made shortly prior to, and in connection with, complaints of unlawful homosexual vilification that Mr Burns made in June 2003 against Radio 2UE, Mr Laws and Mr Steve Price, based on statements made by Mr Laws and Mr Price in programs broadcast by Radio 2UE on 15 June 2003. These complaints formed the basis of proceedings in the Tribunal, in which Mr Burns has succeeded, subject to the outcome of current appeal proceedings. In a judgment delivered on 22 November 2004 (Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267), the Tribunal held that his complaints were substantiated. In a second judgment dated 16 February 2005 (Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24), it ordered that Radio 2UE, Mr Laws and Mr Price should each publish an apology or cause one to be published, and should pay Mr Burns' costs. 14 Mr Rofe objected to the admission of evidence of these statements by Mr Burns, arguing that since they were made as far back as 2003 they were not relevant to ascertaining Mr Burns's predominant purpose in instituting and maintaining the present proceedings. We accepted Mr Reynolds' argument, however, that on account of the very close resemblances between the complaints of June 2003 and the current complaint, evidence of Mr Burns' purpose or purposes in making the earlier complaints might bear upon his purpose or purposes in instituting and/or maintaining the present proceedings. Mr Reynolds suggested that the evidence about the 2003 proceedings was akin to 'similar facts' evidence in a criminal trial. 15 The evidence on which Mr Reynolds specifically relied comprised a selection of the statements of Mr Burns that were recorded in the evidence. Mr Reynolds classified this selection under the following six headings. 16 Direct evidence. On three occasions, all relating to Mr Burns' concerns about broadcasts by Mr Laws and Mr Price during June 2003, Mr Burns made statements indicating that he intended to obtain publicity for the steps that he was taking. 17 First, on 11 June 2003, during a telephone conversation with Mr Ian Sheppard, the General Manager of Radio 2UE, Mr Burns said: I am going to seize this opportunity and take it as far as I can. This is a publicity opportunity for me. I can milk the media. 18 Secondly, on 16 June 2003, in a telephone conversation with Mr Sheppard's personal assistant, Ms Natalie Gray, Mr Burns said:- I know exactly how to use the law to get publicity. 19 Thirdly, in a telephone conversation with Mr Sheppard on 4 July 2003, Mr Burns said: I want the media and the public to know that a little faggot named Gary Burns stood up to Laws and Price. 20 Media releases. The evidence included two media releases issued by Mr Burns. One, dated 23 June 2003, was entitled 'The Ugly Stain of Homophobia Continues to Pollute Sydney through 2UE'. In the other, dated 15 September 2003, he described himself as 'Openly gay independent candidate for Bligh…'. 21 Media interviews. There was evidence of four media interviews given by Mr Burns during November 2004 and February 2005. 22 First, on 4 November 2004, in the course of the second broadcast containing statements by Mr Laws about which Mr Burns has complained, Mr Burns himself rang Mr Laws' program and engaged in a discussion of these statements with Mr Laws. 23 Secondly, on 16 February 2005, the day on which the Tribunal delivered its second judgment in Mr Burns' case against Radio 2UE, Mr Laws and Mr Price, Mr Burns rang the Ray Hadley Program, a talkback program on Radio 2GB, Sydney, saying that he wanted to 'share' with Mr Hadley's listeners the 'good news' that the three respondents in this case had been ordered to apologise and to pay costs. In his interview with Mr Hadley, Mr Burns made the following statements: The bottom line here is, Ray, Mr Laws has been carrying on like a princess and has been done over by a poof. Look, the bottom line, I'm so excited, Ray (sic). Well, it's going to be a gay day today, let me tell you. 24 Thirdly, as shown to us in a DVD recording, Mr Burns appeared in a report on this Tribunal judgment in the late television news program broadcast by Channel 10, Sydney, on 16 February 2005. He was shown exclaiming in very excited tones: 'We won! We won!' He also said: What embarrassment for a once great man, John Laws has been publicly screwed by a poof. 25 Fourthly, the edition of The Australian on 17 February 2005 carried a report by Mr Nick Leys on the Tribunal judgment. In an affidavit dated 29 July 2005, Ms Jaclyn Foley, a solicitor involved in the conduct of the present proceedings on Mr Laws' behalf, testified that Mr Leys had given her an assurance that in articles that he wrote, he never put comments in quotation marks unless they were 'exactly what has been said by a person'. In his report of the Tribunal judgment, Mr Leys set out in quotation marks the following comments attributed to Mr Burns: What a way for a man like John Laws to go down - he has been publicly screwed by a poof. This is an issue of great importance and public interest and being the month of Mardi Gras it is a timely message that you can't say those things any more and get away with it. Thirty years ago you may have, but today you won't. 26 Requests for media interviews. On three occasions, all relating to Mr Burns' concerns about broadcasts by Mr Laws and Mr Price during June 2003, Mr Burns made statements indicating that he wished to appear or be heard on television or radio. 27 First, on 11 June 2003, in a conversation with Ms Natalie Gray, Mr Burns said that he had been speaking to Channel Nine's television program 'A Current Affair' about 'a follow-up story on this matter'. 28 Secondly, on 13 June 2003, he left a message on Ms Gray's voicemail at Radio 2UE saying (a) that he had called the producer for Mr John Stanley (a 2UE presenter) regarding going on air and (b) that he would still like to go on air with Mr Price or Mr Laws and that Mr Sheppard should show some leadership in this matter. 29 Thirdly, in a complaint made on or shortly before 4 July 2003 to the Australian Broadcasting Authority about the broadcast statements by Mr Laws and Mr Price during June 2003, Mr Burns referred again to having asked to go on air with Mr Stanley and/or with Mr Laws. 30 Refusal to attempt to conciliate these proceedings in private. In three separate contexts, Mr Burns indicated that he would not take part in conciliation processes being arranged by the Anti-Discrimination Board if, in accordance with normal practice, they were to be held in private. 31 He articulated this position most fully in a letter dated 9 March 2005 to Mr Andrew Ball, the solicitor for Mr Laws in these proceedings. He began this letter by referring to the recent cancellation, at his request, of a conciliation meeting that the Board had arranged. 32 The letter continued as follows: Contrary to your client John Law's for privacy ( sic ), I do not negotiate in secrecy when it comes to such important public interest matters as vilifying homosexual males. I understand your client Mr Laws refused to attend conciliation if media were present - "school girl theatrics". Why doesn't Mr Laws want the public to know he's there? Is there any issue that must be hidden? However, having said that, I am still prepared to meet with Mr Laws with the objective of this important matter being resolved. But this matter must be resolved with the full knowledge of the NSW public, and not hidden from public scrutiny as your client Mr Laws is endeavouring to do. That shows duplicity and lacks integrity - which I simply won't tolerate. We must all take responsibility for what we do in our lives, including Mr Laws. Mr Ball, I ask you to consider entertaining the thought that your client show responsibility regarding his un-Australian vilifying conduct against homosexual males and be man enough to face me in full view of the public and inform all of us that he (Mr Laws) doesn't condone hatred of gays. Otherwise the matter can go to a full public hearing… 33 The letter also said: I look forward to commonsense prevailing over this matter, and look forward to meeting Mr Laws to prevent further litigation and laughable embarrassment to your client. But this meeting must focus on "Public Interest", with the media informed and invited, by reporting the outcome of discussion between Mr Laws and myself. 34 In a letter to the President of the Anti-Discrimination Board dated 10 January 2005 (one day after his letter to Mr Ball), Mr Burns stated that he wished 'to conciliate this matter'. The terms that he proposed included that he and Mr David Scammel, the male convenor of the Gay and Lesbian Rights Lobby, should have a minimum of 30 minutes on the John Laws program. He added that he would be happy to take calls from the listening audience. 35 In a letter dated 11 February 2005, to Ms Cathy Hahn, a Conciliation Officer employed by the Anti-Discrimination Board, Mr Burns asked that the present complaint be referred to this Tribunal for 'a full public hearing'. In an attachment to this letter, however, he made a further offer to conciliate the complaint, on terms that included an on air discussion with Mr Laws. He proposed that representatives from the Lesbian and Gay Anti-Violence Project and the Gay and Lesbian Rights Lobby should be involved in this discussion, but that he too should attend, in order to 'offer reason (sic) as to the lodging of my complaint and to explain to the listener what offends'. 36 Statements indicating a desire to become the Member of Parliament for Bligh. Three separate items of evidence indicated Mr Burns's apparent intention during 2003 to seek election as an Independent to the NSW Parliament, representing the electorate of Bligh. 37 First, in a letter dated 4 August 2003 to Mr Andrew Tink, the Shadow Attorney General, Mr Burns wrote: 'As an openly gay politician I know this is an issue for the gay constituents in Bligh.' Later in the letter, he criticised the existing Member for Bligh, Ms Clover Moore, for 'doing nothing to bring about equality in legal matters, personal issues for her largely gay and lesbian constituent base'. He added: 'Clover Moore does not longer hold my respect, and the time for her to leave politics is close.' 38 Secondly, as already indicated, in a media release dated 15 September 2003, he referred to his proceedings in the Tribunal against Mr Laws and Mr Price, expressed some criticisms of homosexual vilification legislation and described himself as 'Openly gay independent candidate for Bligh…' 39 Thirdly, the evidence included a copy of a business card for Mr Burns, describing him as 'Independent Candidate for Bligh' and showing a post box address in Paddington. 40 Mr Reynolds put forward the material in this sixth and final category as evidence of a motive explaining why, in his submission, Mr Burns' predominant purpose in instituting and maintaining the present proceedings is to attract publicity for himself. The evidence relied on by Mr Burns 41 Mr Burns did not testify and the only evidence tendered on his behalf was a recording and transcript of parts of the 2UE radio programs containing the statements by Mr Laws about which Mr Burns complained. 42 The evidence tendered on Mr Laws' behalf included, as we have mentioned, a number of statements by Mr Burns on which Mr Reynolds did not rely. Mr Rofe invoked some of these statements as evidence that Mr Burns' predominant purpose in instituting and maintaining these proceedings was not that of garnering publicity for himself. We refer below to the more significant parts of this evidence. The submissions on Mr Laws' behalf 43 Mr Reynolds argued that we were bound to infer from the material that he had specifically drawn to our attention that the sole, not merely the predominant, purpose of Mr Burns in instituting and maintaining these proceedings was to garner publicity for himself. 44 We have already outlined (at [9 - 11] above) some aspects of the High Court case on which Mr Reynolds principally relied, namely, Williams v Spautz (1992) 174 CLR 509. 45 By way of further explanation of this case, Mr Reynolds pointed out that a passage in the majority judgment of Mason CJ, Dawson, Toohey and McHugh JJ was not intended to imply that a permanent stay can only be granted on grounds of an improper or collateral purpose if it can be shown that the plaintiff did not intend to pursue his/her cause of action to a conclusion. At first sight, this interpretation seems a possible one, and it was urged upon us by Mr Rofe. 46 The passage in question, at 521-522, contains a statement implying that where such an intention can be shown there can be 'no difficulty' in granting a stay. It also contains the following observations, at 522: Take, for example, a situation in which the moving party commences criminal proceedings. He or she can establish a prima facie case against the defendant but has no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of extorting a pecuniary benefit from the defendant. It would be extraordinary if the court lacked power to prevent the abuse of process in these circumstances. 47 Mr Reynolds argued that, as their Honours indicated, this situation was put forward only as an example, in the course of discussing a quite different issue to which we have already referred. This is the question whether proceedings can be permanently stayed on the ground of improper purpose if they are not also shown to be unmeritorious. 48 He pointed out also that in Williams v Spautz itself, a permanent stay granted by Smart J in the Supreme Court of New South Wales was upheld by the High Court (both in the majority judgment to which we have referred and in a separate judgment of Brennan J) in the absence of any finding by Smart J that the instigator of the proceedings in question did not intend to pursue them to a conclusion. The proceedings were in fact private prosecutions for criminal defamation and criminal brought by Dr Spautz, a recently dismissed senior lecturer at the University of Newcastle who had sued the University for wrongful dismissal. Those prosecuted were various persons of authority at the University. Smart J's finding of fact, reproduced in the majority judgment of the High Court at 516, was as follows: The predominant purpose of Dr Spautz in instituting and maintaining the criminal proceedings… was to exert pressure upon the University of Newcastle to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case. 49 With reference to the statements that Mr Burns made in 2003, in the context of the complaints that he made about broadcasts by Mr Laws and Mr Price in June of that year, Mr Reynolds relied on the presumption of 'continuance'. He drew to our attention the following two sentences, supported in each instance by case law, in para [1125] of Cross on Evidence: Evidence has been received of a person's theological opinions four years before the time at which their nature was in issue… It may be inferred from the fact that a potential witness implicated in criminal conduct was unwilling to come to Australia at one date, that he remained unwilling one year later. 50 Mr Reynolds submitted that, because there was no challenge, in cross-examination or otherwise, to the evidence filed on Mr Laws' behalf, Mr Burns was bound to accept that evidence to have been accurate and truthful. This well-known principle, established in Browne v Dunn (1893) 6 R 67, was held in Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 to be applicable to tribunal proceedings, such as the present proceedings, which are not governed by the rules of evidence. 51 Mr Reynolds also placed strong emphasis on the fact that Mr Burns had chosen not to testify and had given no explanation for this decision. He had not taken up the opportunity to contradict the evidence tendered against him, to indicate his purpose in instituting and maintaining these proceedings, to deny that his predominant purpose was the improper one of garnering publicity for himself or to deny that his motive was to promote his candidacy for Parliament. 52 In Mr Reynolds' submission, this decision by Mr Burns brought into play the well-known principle in Jones v Dunkel (1959) 101 CLR 298. For the proposition that this principle was applicable to tribunal proceedings such as these, Mr Reynolds cited a decision of the Administrative Appeals Tribunal, Re Alessi and Director-General of Social Security (1984) 2 AAR 153. 53 Adopting a passage from Cross on Evidence, para [1215], Mr Reynolds submitted that the rule in Jones v Dunkel not only 'permits an inference that the untendered evidence would not have helped the party who failed to tender it', but also 'entitles the trier of fact… the more readily to draw any inference fairly to be drawn from the other evidence' adduced by the opposing party. It followed, he said, that we were bound both (a) to assume that any evidence that Mr Burns could have given would not have assisted his case and (b) to draw all available inferences against him. 54 According to Mr Reynolds, these two consequences of Mr Burns' decision not to testify produced the result that so long as the documentary material put before us established a prima facie case that Mr Burns' predominant purpose in suing was to garner publicity for himself, the application by Mr Laws for summary dismissal should succeed. By 'prima facie case', Mr Reynolds meant a case of sufficient strength to be left to a jury. In a supplementary written submission, he contended that this same result should arise so long as the material provided 'more than a scintilla of evidence'. 55 Mr Reynolds maintained that a 'prima facie case' or 'more than a scintilla of evidence' was sufficient, even though the majority judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz and a number of authorities interpreting s 102 of the AD Act or s 111(1), its predecessor (see e.g. Robinson v Wentworth Area Health Service [2004] NSWADT 274 at [27]), establish that the jurisdiction to order a permanent stay or the summary dismissal of proceedings must be exercised with extreme caution. In Williams v Spautz, their Honours said at 529 that a party alleging abuse of process bears a 'heavy onus' and that 'the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances'. They did not however indicate, as Mr Reynolds pointed out, that the standard of proof was anything other than the civil standard of proof 'on the balance of probabilities', applied with due regard to the considerations outlined by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. 56 Mr Reynolds sought to reinforce these two lines of argument by advancing a third proposition, based on High Court authority. In Weissensteiner v R (1993) 178 CLR 217 at 225, the judgment of Mason CJ, Deane and Dawson JJ quoted with approval the following observation of Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970: It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. 57 Mr Reynold's argument in this regard was that the state of Mr Burns' mind in instituting and maintaining these proceedings was - to quote a familiar lawyers' maxim - as much a question of fact as the state of his digestion, and was a question of fact in relation to which the 'power' of Mr Burns to produce evidence was considerably greater the 'power' of Mr Laws or anyone else to contradict such evidence. 58 On the basis of the foregoing evidence, considered in the light of these authorities governing both the standard of proof to be applied and the approach that we should take in drawing inferences, Mr Reynolds contended that we should find that Mr Burns' sole or predominant purpose in instituting and maintaining these proceedings was the improper or collateral purpose of garnering publicity for himself. On this ground, he said, we should dismiss the proceedings as 'vexatious', pursuant to ss 102 and 92(1)(a)(i) of the AD Act. The submissions on Mr Burns' behalf 59 General submissions. Mr Rofe's principal response to these contentions by Mr Reynolds was to argue that, when other statements of Mr Burns recorded in the evidence were taken into account alongside those on which Mr Reynolds relied, it became clear that Mr Burns' predominant purpose in instituting and maintaining these proceedings was the wholly legitimate one of obtaining, on his own behalf and on behalf of homosexual men, the remedies conferred by the relevant provisions of the AD Act. 60 According to Mr Rofe, Mr Burns' statements showed that (a) that he was concerned about homophobic conduct in the community; (b) he was aware of, and intensely desired to promote, the broad aims of the AD Act, which are to render discrimination unlawful and to promote equality; and (c) he wished to call on high-profile, influential and powerful persons, such as Mr Laws, to act in a responsible manner towards homosexual people. The fact that Mr Burns would have realised, and possibly even have intended, that simply by taking proceedings against such a person he would have attracted publicity to himself did not implicate him in an improper purpose. 61 Mr Rofe argued also that if the evidence, seen as a whole, left us in doubt as to what was Mr Burns' predominant purpose, we must conclude that Mr Laws had not discharged the heavy onus imposed on him in this application for summary dismissal. 62 On this issue of the onus to be discharged, he referred us to the decision of the Federal Court in McGlade v Human Rights and Equal Opportunity Commission [2000] FCA 1477. In this case, the Court, citing State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, held that in deciding at a preliminary stage of proceedings whether to grant an application under a provision in terms very similar to 92(1)(a)(i) of the AD Act, a court or tribunal should apply a 'much more rigorous standard' (McGlade at [35]) than if the matter has proceeded to a hearing. 63 In a supplementary written submission, which we admitted by leave, Mr Rofe responded to Mr Reynolds' arguments based on Jones v Dunkel (1959) 101 CLR 298 by first referring to two statements in the judgments of the High Court. At 312, Menzies J said that 'the absence of the defendant… as a witness cannot be used to make up any deficiency of evidence'. At 319, Windeyer J said: 'Until facts were proved from which an inference of negligence could be drawn, the defendant was not called upon to say anything'. 64 Citing also a passage to similar effect from the judgment of Kirby P in Maharis v Malajevac (1994) 20 MVR 41 at 45, Mr Rofe submitted that the evidence that Mr Reynolds relied on was incapable of establishing the predominant purpose that Mr Burns was alleged to have entertained, and that therefore there was no requirement for Mr Burns to testify. 65 Comments on the evidence. Mr Rofe also made a number of specific comments about the evidence on which Mr Reynolds relied. In general, their tenor was to suggest that purposes other than attracting publicity were apparent. In outline, these comments were as follows. 66 During Mr Burns' telephone conversation with Mr Sheppard on 11 June 2003 (see [17] above), Mr Burns said that he wished to complain about the attitudes of Mr Laws and Mr Price to homosexual people and to invoke legal remedies in order to stop them displaying these attitudes publicly. His statements that this was a 'publicity opportunity' for him and that he could 'milk the media' should therefore be interpreted as meaning publicity for 'the cause', not for Mr Burns personally. By 'the cause', we understood Mr Rofe to mean, in broad terms, the welfare of homosexual men within the community, 67 Similarly, Mr Burns' statement to Ms Gray on 16 June 2003 - 'I know exactly how to use the law to get publicity' (see [18]) - had to be interpreted in its context. Mr Burns had just told Ms Gray that he had recently faxed to her a copy of the complaints that he had made to the Anti-Discrimination Board about the broadcasts of 15 June. 68 His statement in a telephone conversation with Mr Sheppard on 4 July 2003 - 'I want the media and the public to know that a little faggot named Gary Burns stood up to Laws and Price' (see [19]) - was made with reference to a request to debate on air the issues at stake in his proceedings against Mr Laws and Mr Price. 69 The fact that his media release of 23 June 2003 was entitled 'The Ugly Stain of Homophobia Continues to Pollute Sydney through 2UE' (see [20]) had no relevance to his intention in bringing these proceedings or the earlier proceedings. 70 In his media release of 15 September 2003 (see again [20]), Mr Burns' description of himself as an 'openly gay independent candidate for Bligh' was accompanied by (a) a statement that his proceedings in the Tribunal against Mr Laws and Mr Price were based on 'language used that incites hatred against the gay community'; (b) some criticisms of homosexual vilification legislation; and (c) a claim that 'anti homosexual diatribe leads to gay hate and murder'. 71 When Mr Burns rang Mr Laws' program on 4 November 2004, in the course of the second broadcast containing statements by Mr Laws about which Mr Burns has complained (see [22]), the issues that they discussed included the reasons why Mr Burns would be making a complaint. Mr Burns expressed his views on the importance of not publicly encouraging hatred of homosexual men, the difficulties associated with being openly gay, the phenomenon of gay-bashing and the responsibilities of high-profile broadcasters such as Mr Laws. 72 Mr Burns' behaviour on 16 February 2005 - instigating an interview with Ray Hadley, making various statements on Mr Hadley's program, appearing on Channel 10 and providing comments to The Australian (see [23 - 25]) - were all explicable in terms of his exhilaration at having won a case against two powerful men (Mr Laws and Mr Price) and a powerful radio station. He had behaved in a manner typical of successful litigants in the immediate aftermath of victory. 73 When in his conversation on 11 June 2003 with Ms Natalie Gray he mentioned having spoken to 'A Current Affair' about a 'follow-up story' (see [27]), he had already said that he intended to take legal action against Mr Laws and Mr Price. He subsequently repeated this, adding (a) that the statements by them which prompted him to take legal action were of the type that led in the long term to 'murders committed by homophobic members of the community' and (b) that they had given no thought to the impact that their statements would have on the particular men to whom they had referred. 74 When on 13 June 2003 Mr Burns left a message on Ms Gray's voicemail saying that he had called the producer for Mr John Stanley regarding going on air (see [28]), he said that it was 'to discuss 2UE's apparent lack of understanding or support for gay men'. 75 In his letter dated 9 March 2005 to Mr Andrew Ball stating why he had requested cancellation of the conciliation meeting relating to the present complaint, on the ground that it would not be held in public (see [30 - 33]), Mr Burns was clearly being 'difficult'. He may or may not have had legal representation at this stage. It was significant that in calling for a meeting with Mr Laws with media representatives present, he did refer to public interest considerations. 76 In his letter of 10 January 2005 to the President of the Anti-Discrimination Board offering to conciliate the matter on terms that included his having time on air in Mr Laws' program (see [35]), he said that he wished to discuss 'homophobia, discrimination, assault - the issues that face gay and lesbian people daily'. He added that the program should aim at 'an educative understanding of the issues of homophobia in society'. He proposed as a term of setllement that Mr Laws or Radio 2UE, 'as an act of good faith', should make a donation to 'the Luncheon Club', being 'an HIV organisation that provides free food and clothing to those in our community who are on disability assistance and who are HIV positive'. Finally he sought 'a commitment from Mr Laws "on air" that he will not use works [sc. words] that hurt homosexual males and that have the potential to incite discrimination, assault and vilification'. 77 In the attachment to his letter dated 11 February 2005 to the Anti-Discrimination Board (see [36]), his further offer to conciliate the complaint, on terms that included an on air discussion with Mr Laws, also called for a 'monetary offer, say $5,000,' to the Luncheon Club. The attachment contained information about the two organisations (the Lesbian and Gay Anti-Violence Project and the Gay and Lesbian Rights Lobby) that he wished to appear also on Mr Laws' program. It also stated as follows: My view is education and consultation to address homophobia and vilification against the homosexual community is a greater message to teach, than the one of excuse that comments of ridicule are humorous and satirical. 78 Finally, in the letter dated 4 August 2003 to Mr Andrew Tink, the Shadow Attorney General (see [37]), Mr Burns's references to his candidacy as 'an openly gay' candidate for Bligh and his criticisms of the existing Member for Bligh were accompanied by criticisms of the homosexual and racial vilification provisions in the AD Act, an assertion that they should be transferred to the Crimes Act and references to the incidence of gay hate murders in recent years. 79 In relation to this and other material indicating that Mr Burns had political aspirations, Mr Rofe submitted that it was relevant to the issue of motive only, not to purpose. It was Mr Burns' purpose, he said, that had to be ascertained in determining this application for summary disposal. Our conclusions 80 Although the material assembled by Mr Reynolds clearly showed a desire on Mr Burns' part that his conduct in instituting and maintaining these proceedings should attract a significant amount of publicity, we consider that Mr Laws has not discharged the 'heavy onus' of proving to the requisite standard that Mr Burns' predominant purpose was or is that of garnering publicity for himself. Our jurisdiction to grant Mr Laws' application for summary dismissal on the ground of improper or collateral purpose is, as the High Court said in Williams v Spautz (1992) 174 CLR 509 at 529, 'one to be exercised only in the most exceptional circumstances'. Our decision must for these reasons be that the application fails. 81 We should say that we have some doubts regarding Mr Reynolds' claim that, even where the standard of proof is defined in these terms, the principle established in Jones v Dunkel (1959) 101 CLR 298 will still apply to the resolution of an issue so long as there is 'prima facie' evidence or something more than 'a scintilla of evidence'. But whether or not such doubts are well founded, the important point is that when this principle is brought into operation it does not follow that the court or tribunal must resolve the issue adversely to the party that has declined to testify or to call an available witness who might cast light on the issue. In the passage from Cross on Evidence on which Mr Reynolds relied (see [53] above), it is stated that the rule in Jones v Dunkel only 'permits [emphasis added] an inference that the untendered evidence would not have helped the party who failed to tender it' and 'entitles [emphasis added] the trier of fact… the more readily to draw any inference fairly to be drawn from the other evidence' adduced by the opposing party. Neither of these outcomes is unequivocally mandated. 82 When this aspect of the rule in Jones v Dunkel is taken into account, it is apparent that the court or tribunal, when deciding whether to draw one or more of the permitted inferences, must take full account of the onus of proof to be discharged by the party who claims that these inferences should be drawn. In the present case, as we have just pointed out, that onus is a heavy one, even though correctly speaking the standard to be applied is the civil standard of proof 'on the balance of probabilities' (see [55] above]). 83 Our decision not to draw the inferences that Mr Reynolds urged upon us stems from these general considerations, and also from some significant features of the documentary evidence, which we will now describe. 84 On our reading of the totality of this evidence, Mr Burns' purposes in instituting and maintaining these proceedings have included the purpose of garnering publicity for himself, but have included a number of other purposes as well. 85 Prominent among these is the purpose of obtaining what he believes to be the remedies to which he and other homosexual men are entitled under the AD Act. One such remedy, for which the Act provides and which Mr Burns has listed in his Amended Points of Claim, is the publication of an apology. Since the statements by Mr Laws of which he complains were broadcast on public radio, the apology that he seeks is one to be made on radio and in newspapers. His attempts to obtain publicity for his complaint and, more relevantly, for the reasons why he considers his complaint to be justifiable are to this extent entirely consonant with one of the remedies that might be granted if he were successful in these proceedings. 86 Also apparent from the evidence of Mr Burns' words and actions are the purposes of (a) seeking to induce high-profile, influential and powerful persons, such as Mr Laws, to act in the future in what he regards as a responsible manner towards homosexual people and (b) educating the community generally about the role that, in his opinion, vilification of homosexuals plays in encouraging homophobic conduct, including, at its worst, assault and murder of homosexual men. Whether rightly or wrongly, it may legitimately be believed that the achievement of aims such as these will be advanced through publicity. It cannot be assumed that a person who, holding this belief, seeks publicity with the overt intention of furthering these aims is in actual fact concerned only to garner publicity for himself or herself. 87 In the light of considerations such as these, we do not accept Mr Reynolds argument that most if not all of the evidence on which he relied establishes a purpose on Mr Burns' part of attracting publicity to himself, as opposed to attracting publicity for these other matters, i.e., for what Mr Rofe described broadly as 'the cause'. 88 In so far as the publicity for 'the cause' that Mr Burns wishes to obtain includes the publicity arising out of apologies ordered to be made on radio and in newspapers, his purpose of seeking publicity in instituting and maintaining proceedings can equally be characterised as the wholly legitimate purpose of seeking to obtain one of the remedies that the AD Act makes available in such proceedings. While his purpose of obtaining other forms of publicity for 'the cause' cannot be closely linked in this way to the proceedings that he has instituted, the important point remains that the present application stands or falls according to whether Mr Burns has been sufficiently shown to have had a predominant purpose of attracting publicity to himself. 89 Such a purpose is undoubtedly linked in practical terms to the purpose of attaining publicity for different aspects of 'the cause', simply because Mr Burns, once he instigated proceedings of this nature against a high-profile figure such as Mr Laws, inevitably became a focus of media attention. But the two purposes are conceptually distinct, and in the present context proof of one of them does not constitute proof of the other. 90 Furthermore, the two purposes of Mr Burns that we identified above at [86] - (a) seeking to induce high-profile, influential and powerful persons, such as Mr Laws, to act in the future in what Mr Burns regards as a responsible manner towards homosexual people and (b) educating the community generally about the role that, in his opinion, vilification of homosexuals plays in encouraging homophobic conduct - could fairly be regarded as purposes within the scope of the remedy of public apology that he seeks in these proceedings. In Williams v Spautz (1992) 174 CLR 509, at 532-537, Brennan J (who gave a judgment agreeing with that of Mason CJ, Dawson, Toohey and McHugh JJ) engaged in a discussion of what types of purpose should in this context be deemed 'improper'. At 537, he summarised his conclusions in these terms: For these reasons, I would hold that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding. 91 According to this criterion, the two purposes of Mr Burns that we have just outlined could not be regarded as 'improper'. They are, in our judgment, 'reasonably related to… an order that might be made in the proceeding'. 92 Mr Reynolds submitted that Brennan J's judgment should not be regarded as authoritative because it was the joint judgment of his four colleagues - Mason CJ, Dawson, Toohey and McHugh JJ - that constituted the true 'majority judgment' in the case. This judgment did not, however, address the particular issue of the relationship of a plaintiff's purposes in suing with the nature of the possible verdicts or orders that might arise out of the proceedings. In our opinion, Brennan J's conclusions on this issue should be treated as providing important guidance. 93 In relation to Mr Reynolds' submission that Mr Burns's motive for seeking publicity for himself was to improve his chances of being elected to Parliament, we would point out that the documents providing evidence of his standing as an 'openly gay independent candidate for Bligh' either dated from 2003 or had no date. While we accept that a presumption of 'continuance' (see [49] above) may apply to some categories of evidence, we do not think it applicable here. If Mr Burns still were an 'openly gay independent candidate for Bligh', it would not have been difficult for Mr Laws to obtain evidence to this effect. 94 It is noteworthy also (though we do not specifically rely on this point) that in illustrating the types of 'predominant purpose' of a plaintiff that should be characterised as 'improper', both the joint majority judgment and that of Brennan J in Williams v Spautz drew on cases in which the purpose in question differed markedly from that which Mr Reynolds seeks to attribute to Mr Burns. In a number of those cases (for example, Grainger v Hill (1838) 4 Bing (NC) 212; 132 ER 769 and Varawa v Howard Smith Co Ltd (1911) 13 CLR 35), and indeed in Williams v Spautz itself, the improper or collateral purpose alleged or proved was that of seeking to compel the defendant in the proceedings to confer some benefit upon the plaintiff to which the plaintiff was not entitled. By contrast, the purpose attributed to Mr Burns in these proceedings does not in any way involve exerting pressure on Mr Laws. 95 In the light of these findings as to the range and the nature of the purposes that appear from the documentary evidence to have been entertained by Mr Burns in instituting and maintaining these proceedings, and having regard to the onus imposed on Mr Laws in making this application, we are not prepared to draw the inference that the predominant purpose of Mr Burns was to garner publicity for himself. This is in our opinion the appropriate decision even if, by virtue of the operation of Jones v Dunkel (1959) 101 CLR 298, an inference along these lines is open to us. Our orders 1. For the foregoing reasons, the Respondent's application for summary dismissal of this complaint must be dismissed. 2. The costs of this application are reserved. 3. The matter is set down for further directions at 9.30 a.m. on 13 October 2005.

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