What happened
Keysar Trad lodged a complaint on 29 April 2005 with the President of the Anti-Discrimination Board alleging racial vilification arising from broadcasts made by Alan Jones on Radio 2GB between 26 and 29 April 2005. The complaint was referred to the Administrative Decisions Tribunal on 22 March 2007. The broadcasts were divided into Schedule A (a single broadcast on 28 April 2005 from 9.20 am) and Schedule B (broadcasts over three days). The Schedule A transcript, reproduced in full at paragraph 6, referred repeatedly to "Lebanese males" and "Lebanese Muslims" in the context of events at Hickson Road, describing them as "mongrels", "vermin" and stating that "they simply rape, pillage and plunder a nation that's taken them in".
The Tribunal at first instance (in the earlier decision Trad v Jones & Anor [2008] NSWADT 272 and subsequent rulings) found the Schedule A broadcast breached s 20C(1) of the Anti-Discrimination Act 1977 because it incited hatred towards, serious contempt for, or severe ridicule of Lebanese Muslims on the ground of their race (defined in s 4 to include ethno-religious origin). The Schedule B broadcasts were dismissed because they targeted Muslims as a religious group rather than on the ground of race. Orders were made for $10,000 damages, a critical review of policies and practices on racial vilification, staff training, and an apology. Both parties applied for costs.
Prior to the substantive hearing, on 22 May 2007 Trad's solicitors wrote to Jones (copying the Harbour Radio address) offering to settle the entire matter by way of an on-air apology at 9.20 am and a written apology on Harbour Radio letterhead, both in specified terms acknowledging that the remarks vilified Lebanese males and Lebanese Muslims and breached the racial vilification provisions. The offer was expressed to be without prejudice except as to costs, open for 14 days, and stated that acceptance would mean no costs would be sought. The offer expired on 6 June 2007 with no response. Mediation and further negotiations occurred later but did not resolve the matter. The respondents did not reply to the President's initial letter or attend the first case conference on 9 May 2007.
By the time of the costs hearing on 30 April 2013 before the reconstituted Tribunal (Magistrate N Hennessy, Deputy President), appeals and cross-appeals had been determined by the Appeal Panel (Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13 and related decisions). The costs judgment (Trad v Jones (No 5) [2013] NSWADT 127) ordered the respondents to pay Trad's costs from 6 June 2007 as agreed or assessed. The Tribunal rejected the respondents' argument that the costs applications were barred by res judicata or issue estoppel.
Why the court decided this way
The Tribunal began from the statutory starting point in s 88(1) of the Administrative Decisions Tribunal Act 1997 that each party bears their own costs. Departure is permitted only if the Tribunal is satisfied it is fair to do so, having regard to the matters in s 88(1A), including under paragraph (e) "any other matter that the Tribunal considers relevant". The fairness test applied because, although the offer was made in 2007 when the prior "special circumstances" test governed, the proceedings were not finally determined before 1 January 2009 (ADT Act, Schedule 5, Part 11, Cl 43(2)(i)).
The decisive factor was the 22 May 2007 letter. The Tribunal found the offer was reasonable: it was made very early, before significant costs had been incurred, after the complaint had been on foot since 2005, and at a time when the respondents had failed to respond to the President's letter or attend the first case conference. It contained a significant element of compromise because it sought neither damages nor orders for policy review or training—remedies that were ultimately granted. The 14-day period for acceptance was reasonable in the circumstances.
The respondents' rejection was unreasonable. Their later argument that the offer required a "full admission of guilt" rather than a genuine apology was rejected because the Tribunal has power under s 108(2)(d) of the Anti-Discrimination Act 1977 to order an apology that includes an acknowledgement of unlawfulness (citing its own earlier decisions such as Sunol v Collier (EOD) [2006] NSWADTAP 51). The fact the letter was addressed to Jones at Harbour Radio's premises, referred to both respondents, attached the President's Report naming both, and required the written apology on Harbour Radio letterhead satisfied the Tribunal that the offer was intended to settle the complaint against both parties. The absence of Points of Claim at the time of the offer was irrelevant; the scope of the complaint was clear from the President's Report.
The terms of the offer were more favourable to the respondents than the final orders. The Tribunal ultimately ordered an on-air apology (in terms broadly similar to those offered, with minor additional context about the Hickson Road incident), $10,000 damages, and a policy review. Although the final apology did not require a personal written apology to Trad personally (the Tribunal accepted Jones had not vilified him individually), this did not render the overall outcome more favourable to the respondents. The human rights context reinforced the conclusion: freedom from racial vilification is a fundamental right, high-profile broadcasters have access to legal advice, and the objects of the ADT Act favour informal and expeditious resolution. The respondents' initial non-engagement undermined those objects. Because the Calderbank-style ground succeeded, it was unnecessary to decide other costs arguments or the respondents' application for costs on the dismissed Schedule B portion.
The res judicata argument was rejected because the Appeal Panel had expressly stated it lacked power to award first-instance costs and considered it more appropriate for the original Tribunal to decide the matter, citing its lack of "feel" for the lengthy proceedings. That was not a final determination on the merits. A statement in Trad v Jones (No 4) [2012] NSWADT 265 that only the apology remained outstanding did not extinguish jurisdiction over a costs application that had already been filed and held over pending appeals.
Before and after state of the law
Prior to 1 January 2009 the test for costs in the Tribunal required "special circumstances warranting an award of costs". The fairness test in s 88(1A) replaced it. Paragraph 34 expressly notes that although the 22 May 2007 offer was made under the old test, the new fairness test governs because the proceedings were commenced but not finally determined before the commencement date. The Tribunal drew on Court of Appeal authority (AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33]) that there is a "relatively low hurdle" for an applicant and that fairness takes into account the compensatory purpose of costs orders, generally favouring the successful party, while also considering the Tribunal's objects and the nature of the jurisdiction.
In the equal opportunity jurisdiction the Tribunal had previously cautioned against a "chilling effect" from too readily awarding costs against unsuccessful applicants (Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [39]). The decision integrates Calderbank principles (Calderbank v Calderbank [1975] 3 ALL ER 333 and subsequent cases) into the s 88(1A)(e) residual category, adapting them to the Tribunal context. It confirms that an offer need not mirror the final orders exactly; the question is whether the offer was reasonable at the time it was made and whether its terms were more favourable overall. Offers including an admission of unlawfulness in an apology were accepted as legitimate (referencing Supreme Court defamation practice in Assaf v Skalkos [2000] NSWSC 935).
After this decision the law remained that costs are exceptional but fairness is the touchstone. The judgment reinforces that early, reasonable offers in vilification cases carry significant forensic weight, particularly where respondents have not engaged with pre-hearing processes. It also confirms that reconstitution of the Tribunal under s 79 does not prevent determination of ancillary costs applications by a single member under s 24A.
Key passages with plain-English translation
Paragraph 2: "The normal rule is that each party pays their own costs. Costs may only be awarded if it is fair to do so. 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."
Plain English: The usual position is everyone pays their own lawyers. We only shift that if it's fair. Here it is fair to make Jones and the radio station pay Trad's costs from the day after they ignored his early apology offer. The offer was sensible, came before big legal bills, and gave them a better deal than what the Tribunal eventually ordered.
Paragraph 3: "It is a fundamental human right recognised by the Anti-Discrimination Act 1977 (AD Act) that every person should be able to live free from racial vilification. High profile public figures like Alan Jones have ready access to legal advice. If, either inadvertently or intentionally, Mr Jones vilifies a person or a group of people on the ground of race he should, at least, respond quickly and acknowledge and apologise for any wrongdoing. That did not happen in this case."
Plain English: The law says people have a basic right not to be racially vilified. Famous broadcasters with lawyers on speed-dial should apologise quickly if they cross the line. They didn't do that here, even though the allegations were serious.
Paragraph 35 (quoting AT v Commissioner of Police, NSW [2010] NSWCA 131): "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."
Plain English: You still need a good reason to make someone pay costs, but the bar is not set very high. Fairness includes the idea that the winner should usually get their costs back.
Paragraph 71: "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."
Plain English: Ignoring a fair settlement offer does not automatically trigger costs, but it does here because this is a human-rights jurisdiction. Jones broadcasts to thousands and knows the law. The Tribunal is supposed to be quick and informal; that only works if parties engage with reasonable offers.
What fact patterns trigger this precedent
This decision is triggered where a complainant in the Equal Opportunity Division makes an early, genuine settlement offer limited to an apology that acknowledges unlawfulness under s 20C, the offer is made before significant costs are incurred and before Points of Claim have crystallised, the scope of the complaint is apparent from the President's Report, the respondent has failed to engage with the Anti-Discrimination Board or the first case conference, the offer contains an element of compromise by not seeking damages or systemic orders, the respondent rejects the offer, and the Tribunal's final orders include an apology plus additional remedies such as damages under s 108 or policy review. It also applies where the respondent later argues the offer required an impermissible admission of liability or was defective because it was not sent to every named respondent separately, but the surrounding correspondence and attachments demonstrate the offer was intended to resolve the entire complaint against all respondents. The precedent further applies to costs applications that have been held over pending appeals where an Appeal Panel has declined to determine first-instance costs on jurisdictional or discretionary grounds.
The Schedule A/Schedule B distinction illustrates that partial success on race versus religion questions does not prevent a costs order running from an early offer date if the offer related only to the ultimately substantiated portion. The fact pattern does not require the offer to match the final apology wording exactly; minor differences (such as additional contextual sentences identifying the Hickson Road incident) do not render the final orders more favourable to the respondent.
How later courts have treated it
The judgment itself treats earlier authorities as guiding the application of the fairness test. It applies the statement of issue estoppel from Dixon J in Blair v Curran [1939] HCA 23 at 531-2 to reject the res judicata submission. It follows the Court of Appeal's characterisation of the "relatively low hurdle" and compensatory purpose in AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33]. The Tribunal cites and applies its own earlier Equal Opportunity Division costs decisions (Denmeade v Kempsey Shire Council & Ors (No.3) [2004] NSWADT 54, Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263, Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 and Hughes v Narrabri Bowling Motel Limited (No 2) [2012] NSWADT 260) as demonstrating that Calderbank-style offers are relevant under the fairness test even though not expressly listed in s 88(1A).
The Appeal Panel decisions in the same matter (Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13 and Trad v Jones (No 3) (EOD) [2012] NSWADTAP 33) are treated as confirming that the Tribunal at first instance is best placed to determine costs because it has the "feel" for the lengthy proceedings. The judgment notes that Chand v Railcorp of NSW (No.2) [2011] NSWCA 80 is actually authority that the Appeal Panel does have power to determine first-instance costs, yet the Panel still declined to do so on appropriateness grounds. Subsequent references in the series (Trad v Jones (No 4) [2012] NSWADT 265) are distinguished on the basis that a statement about "only outstanding issues" made before the Appeal Panel's costs ruling cannot impliedly extinguish a filed but undetermined costs application. The Tribunal's own guideline on costs is cited at paragraph 25 as supporting the proposition that first-instance costs can be finalised despite appeals. Overall the decision consolidates the line of authority that early reasonable offers attract costs consequences in human-rights jurisdictions while preserving the "each party pays their own" starting point.
Still-open questions
The judgment leaves open whether costs would have been awarded on other grounds advanced by Trad (relative strengths of claims, conduct prolonging proceedings) because the settlement-offer ground was dispositive. It does not decide the respondents' cross-application for costs on the dismissed Schedule B portion. The precise weight to be given to a respondent's failure to respond to the President's letter or attend the first case conference, standing alone, remains unquantified.
Questions remain about the outer limits of "more favourable" when comparing an offer to final orders: how many additional remedies (damages, policy review, training) can be ordered before an offer is no longer more favourable? The Tribunal did not set a bright-line rule. The interaction between s 88 and the specific costs power in s 110 of the Anti-Discrimination Act 1977 is noted but not exhaustively analysed. Whether an offer addressed only to the individual broadcaster and not separately to the licensee would still bind the corporate respondent in every case is left for future decisions, although on these facts the Tribunal was satisfied the single letter sufficed. The decision does not address the quantum of costs in detail, instead ordering costs "as agreed or assessed" after the respondents complained they could not comment on the $180,946.17 estimate without a breakdown by date. Finally, the precise boundary between an apology that constitutes an admission of liability and one that is merely "genuine" for settlement purposes is acknowledged as fact-sensitive and guided by earlier cases but not exhaustively defined. These matters continue to require case-by-case assessment under the fairness criterion.