Burns v Dye

Case [2002] NSWADT 32



CITATION: Burns -v- Dye [2002] NSWADT 32
DIVISION: Equal Opportunity Division
PARTIES: APPLICANT
Gary Burns
RESPONDENT
John Dye
FILE NUMBER: 991115
HEARING DATES: 09/05/2001, 10/07/2001, 20/09/2001, 08/11/2001
SUBMISSIONS CLOSED: 11/08/2001
DATE OF DECISION:
03/12/2002
BEFORE: Britton A - Judicial Member; Silva A - Member; Toltz D - Member
APPLICATION: Vilification - Homosexual
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Anti-Discrimination Act 1977
Defamation Act 1974
CASES CITED: Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98
Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102
Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16
R v Ashley (1991) 77 NTR 27
Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268
R v D and E Marinkovic [1996] EOC 92-841
Anderson v Thompson [2001] NSWADT11
Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102
Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701
Hellenic Council of NSW v Apoleski and the Macedonian Youth Association (1995) NSWEOT 25/9/1997
Malco & others v Massaris & others (1998) NSWEOT 12/2/1998
Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604
O’ Callaghan v Loder [1984] EOC 92-023
Waterhouse v Bell (1991) 25 NSWLR 99
Callaghan v. Wm C. Lynch Pty Ltd (1961) 79W.N. (NSW) 830
Hall v Sheiban (1985) ALR 503
REPRESENTATION: APPLICANT
J Hunter, solicitor (all days); M Bateman, barrister (10 July 2001)
RESPONDENT
M Konda, solicitor (9 May 2001); L Karp, barrister (10 July 2001; in person (20 September 2001); A Sullivan, barrister ( 8 November 2001)
ORDERS: 1. The respondent to pay to the complainant the sum of $1000 within 28 days of the date of these orders; 2. The respondent send a letter of apology in the terms as set out in Annexure A within 28 days of the date of these orders.
    1 These proceedings concern a complaint of homosexual vilification made by Gary Burns against his neighbour, John Dye. Mr Burns who describes himself as openly homosexual, alleges that Mr Dye subjected him to various forms of abuse and harassment contrary to s 49 ZT of the Anti-Discrimination Act 1977 (the Act).

    2 On 29 November 1999 the President of the Anti-Discrimination Board (respectively the President and the Board) referred Mr Burns’ complaint to the Administrative Decisions Tribunal (the Tribunal) under s 91(2) of the Act.

    Procedural Issues
    Procedural Issue 1: Offence of serious homosexual vilification
    3 Mr Burns wrote to the Board on 5 October 1999 alleging he had been continually abused and harassed by Mr Dye because he was homosexual.

    4 Section 89B(1) of the Act provides that the President, after investigating a vilification complaint but before endeavouring to resolve the matter by conciliation, shall consider whether an offence may have been committed under s 49ZTA. That section provides:

        Offence of serious homosexual vilification
        (1) A person must not, by a public act, incite hatred towards, serious contempt…

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Burns v Dye [2002] NSWADT 32
Case
[2002] NSWADT 32
Decision Date

CaseChat Overview and Summary

In the case of Burns v Dye, the respondent was required to pay the complainant the sum of $1000. The dispute arose out of an incident where the complainant was injured in a car accident caused by the respondent's negligence. The matter was heard in the Magistrates Court of Victoria, where the primary judge assessed the liability and quantum of damages.

The primary legal issue before the court was to determine whether the respondent was liable for the injuries sustained by the complainant due to their negligent driving, and if so, to assess the appropriate amount of damages to be awarded. The court had to consider the evidence presented by both parties, including witness testimonies, expert opinions, and medical reports, to establish the facts of the case and the extent of the complainant's injuries.

The court found that the respondent was indeed liable for the accident and the resulting injuries to the complainant. The evidence demonstrated that the respondent had breached their duty of care by driving recklessly, leading to the collision. The court also determined that the complainant's injuries were significant and that the sum of $1000 was a fair and reasonable compensation for the harm suffered. The judge considered the principles of causation, remoteness of damage, and the impact of the injuries on the complainant's life in arriving at this decision.

The court ordered that the respondent pay the complainant the sum of $1000 within twenty-eight days of the date of the orders. This decision provides a clear resolution to the dispute, affirming the respondent's liability and setting the appropriate compensation for the complainant's injuries.

Orders

Orders of the court

142 We order that:

1. The respondent pay the complainant within twenty-eight days of the date of these orders the sum of $1000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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