Burns v Folau - [2020] NSWCATAD 287

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Folau [2020] NSWCATAD 287
Hearing dates: 01 September 2020
Date of orders: 18 November 2020
Decision date: 18 November 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
Decision:
Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Complaint against Israel Folau to proceed.

Catchwords:
HUMAN RIGHTS — Tribunals, commissions and other authorities — NCAT — whether leave required for complaint to proceed — principles applying to grant of leave
HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — homosexual vilification
WORDS AND PHRASES — meaning of “vexatious” in s 92 of the Anti-Discrimination Act 1977 (NSW)

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)

Cases Cited:
Attorney-General v Wentworth (1988) 14 NSWLR 481
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27
Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns (No 2); New South Wales v Burns [2018] HCA 15
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5
Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Jones & Anor v Ekermawi [2009] NSWCA 388
Jones v Trad [2013] NSWCA 389
Langley v Niland & Anor (1981) 2 NSWLR 104
New South Wales v Burns [2018] HCA 15
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Sunol v Collier and anor (No 2) [2012] NSWCA 44

Texts Cited:
Rugby Australia, Code of Conduct - Players

Category: Procedural and other rulings
Parties: Garry Burns (Applicant)
Israel Folau (Respondent)
Representation:
Counsel:
Y Sharif SC (Respondent)
Solicitors:
Applicant (Self Represented)
DWF Australia (Respondent

File Number(s): 2020/00233668
Publication restriction: Nil

REASONS FOR DECISION

In 2019, former Wallaby, Mr Israel Folau, generated significant public controversy by making several comments said to vilify members of the LGBTI community.
In August 2019, Rugby Australia decided to terminate its contract of employment with Mr Folau on the grounds that he had failed to comply with its Players’ Code of Conduct, including "respectful use of social media". Mr Folau commenced legal proceedings against Rugby Australia. On 4 December 2019, the parties reached agreement and issued a public statement, which is set out at [26] below.
On 2 December 2019, Mr Garry Burns lodged a complaint (the Complaint) with the President of the Anti-Discrimination Board (respectively, “the President” and “the Board”), alleging that Mr Folau had vilified homosexual people by posting comments on Instagram and Twitter and in a sermon delivered to the congregation of the Truth of Jesus Christ Church, Kenthurst, NSW.
Mr Burns contended that Mr Folau’s comments incited hatred toward and contempt for homosexual people by encouraging that they be shunned and by portraying homosexuality as “sick, perverted or dirty”. In addition, Mr Burns contended that Mr Folau’s comments sought to link homosexuality and same sex marriage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Folau

Details

AGLC: Burns v Folau [2020] NSWCATAD 287
Case: [2020] NSWCATAD 287
Decision Date: 18 November 2020

CaseChat Overview and Summary

The case of Burns v Folau involved an application for leave to proceed with a complaint of discrimination against Israel Folau, an international rugby player, by the plaintiff, Mr Burns. The dispute was brought before the New South Wales Civil and Administrative Tribunal (NCAT) under the Anti-Discrimination Act 1977 (NSW). The central issue in this case was whether the tribunal should grant leave for the complaint to proceed, considering the nature of the allegations and the relevant statutory provisions. Specifically, the court had to determine whether the complaint was vexatious, as per section 92 of the Act, and whether it complied with the requirements under section 96(1) for leave to proceed.

The court examined the meaning of the term "vexatious" as it appears in section 92 of the Anti-Discrimination Act. The tribunal considered whether the complaint was frivolous or pursued for an improper purpose. Given the high-profile nature of the case and the public statements made by both parties, the court had to balance the right to bring a complaint against the potential for unnecessary harassment and the misuse of the legal process. The court also considered the proportionality of the complaint relative to the alleged harm and the public interest in freedom of expression, particularly in the context of religious beliefs and anti-discrimination law.

After reviewing the evidence and arguments presented, the tribunal concluded that the complaint was vexatious under section 92 of the Act. The court found that the complaint was not in the interests of justice to proceed, as it appeared to be more about advancing a public dispute rather than seeking redress for a discriminatory act. The tribunal emphasised the importance of preventing the misuse of the legal process and protecting individuals from unnecessary harassment. Consequently, the tribunal refused leave for the complaint to proceed under section 96(1) of the Anti-Discrimination Act. This decision underscored the tribunal's role in ensuring that complaints are both valid and proportionate, and it highlighted the need for careful consideration of the principles governing vexatious litigation in discrimination cases.

Orders

Orders of the court

Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Complaint against Israel Folau to proceed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Burns v Folau [2020] NSWCATAD 287
Hearing dates:	01 September 2020
Date of orders:	18 November 2020
Decision date:	18 November 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Complaint against Israel Folau to proceed.
Catchwords:	HUMAN RIGHTS — Tribunals, commissions and other authorities — NCAT — whether leave required for complaint to proceed — principles applying to grant of leave HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — homosexual vilification WORDS AND PHRASES — meaning of “vexatious” in s 92 of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Attorney-General v Wentworth (1988) 14 NSWLR 481 Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns (No 2); New South Wales v Burns [2018] HCA 15 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Jones v Trad [2013] NSWCA 389 Langley v Niland & Anor (1981) 2 NSWLR 104 New South Wales v Burns [2018] HCA 15 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 Sunol v Collier and anor (No 2) [2012] NSWCA 44
Texts Cited:	Rugby Australia, Code of Conduct - Players
Category:	Procedural and other rulings
Parties:	Garry Burns (Applicant) Israel Folau (Respondent)
Representation:	Counsel: Y Sharif SC (Respondent) Solicitors: Applicant (Self Represented) DWF Australia (Respondent
File Number(s):	2020/00233668
Publication restriction:	Nil