281 The applicant's case for an apology to be ordered was sparse to say the least. It is plain that any apology given by Ms Grover, and any apology given by her on behalf of Giggle, would be through clenched teeth and utterly devoid of sincerity. She would be doing no more than saying she was sorry, but she would not in fact be sorry at all. She adheres to her sincerely held beliefs. It is not appropriate to order the giving of an apology in those circumstances and I therefore decline to do so.
(e) Reinstatement
282 The final relief sought is to order that Ms Tickle be given the same access to the Giggle App as is provided to other female users, upon Giggle's usual terms. That app has been shut down, and Ms Grover has expressed a clear intention not to reinstate it unless it is legal to exclude transgender women. Accordingly, at present, Ms Tickle already has the same access as other female users, being none at all. If the Giggle App had been in operation, I could well have ordered reinstatement. In the circumstances, however, it is not appropriate to make an order that is incapable of being complied with. Accordingly, I decline to grant this kind of relief.
PART 7: CONCLUSION
283 Although the applicant did not include seeking costs in her pleadings, costs was argued at the interlocutory hearing last year, and was plainly in the contemplation of both sides since before 1 June 2023. In those circumstances there is no reason way costs should not follow the final outcome of this proceeding. I will order that the respondents pay the applicants costs, but with a cap of $50,000 in relation to the constitutional validity and statutory construction issues, imposed by order 3 made on 1 June 2023.
I certify that the preceding two hundred and eighty-three (283) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.
Associate:
Dated: 23 August
