Burns v Laws (EOD)

Case [2008] NSWADTAP 32

Appeal Panel - Internal

CITATION: Burns v Laws (EOD) [2008] NSWADTAP 32
This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:

APPELLANT
Gary Burns

RESPONDENT
John Laws
FILE NUMBER: 079015
HEARING DATES: 10 - 11 September 2007
SUBMISSIONS CLOSED: 26 November 2007
 
DATE OF DECISION: 
16 May 2008
BEFORE: O'Connor K - DCJ (President); Grotte E - Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS: Anti-discrimination - homosexual vilification - appeal - public act done reasonably and in good faith - interpretation - Anti -Discrimination Act 1977 - s 49ZT(2) - error of law - s 49ZT(1) - interpretation - no error of law - extension to merits
MATTER FOR DECISION: Principal matter
DECISION UNDER APPEAL: Burns v Laws (No 2) [2007] NSWADT 47
FILE NUMBER UNDER APPEAL: 051044
DATE OF DECISION UNDER APPEAL: 03/01/2007
LEGISLATION CITED: Anti-Discrimination Act 1977
Anti-Discrimination (Homosexual Vilification) Amendment Act 1993
Defamation Act 2005
Administrative Decisions Tribunal Act 1997
Racial Discrimination Act 1975
Racial and Religious Tolerance Act 2001
CASES CITED: Burns v Laws [2005] NSWADT 229
Burns v Laws (No 2) [2007] NSWADT 47
Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245
Hinton & Ors v Commissioner for Fair Trading, Office of Fair Trading (GD) [2007] NSWADTAP 17
Sunol v Collier [2006] NSWADTAP 51
CDJ v VAJ (1998) 197 CLR 172
Veloskey & Anor v Karagiannis & Ors [2002] NSWADTAP 18
Harou-Sourdon v TCN Channel Nine Ltd (1994) EOC 92-604
Western Aboriginal Legal Service Ltd v Jones & anor [2000] NSWADT 102
Kazak v John Fairfax Publications Ltd [2002] NSWADTAP 35
Burns v Dye (No 2) [2002] NSWADT 32
Bryl and Kovacevic v Nowra and Melbourne Theatre Company [1999] EOC 93-022
Creek v Cairns Post Pty Ltd [2001] FCA 1007
Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510
Bropho v Human Rights & Equal Opportunity Commission & Anor (2004) 135 FCR 105
Jones & ors v Toben (2000) EOC [93-110]
Jones v Toben [2002] FCA 1150
Toben v Jones [2003] FCAFC 137
Jones v Scully (2002) 120 FCR 243
Jones v The Bible Believers Church [2007] FCA 55
Bropho v HREOC & anor [2005] HCATrans 9
Islamic Council of Victoria v Catch the Fire Ministries Inc & ors [2004] VCAT 2510
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207
Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Bryant v Queensland Newspapers [1997] HREOCA 23
Coco v The Queen (1994) 179 CLR 427
K & S Lake City…

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AGLC
Burns v Laws [2008] NSWADTAP 32
Case
[2008] NSWADTAP 32
Decision Date

CaseChat Overview and Summary

The appeal in Burns v Laws concerns a dispute involving alleged homosexual vilification under the Anti-Discrimination Act 1977. The case was heard in the Equal Opportunity Division of the Supreme Court of South Australia. The appellant, who was found to have acted in a vilifying manner by the Anti-Discrimination Tribunal, sought to appeal the Tribunal's decision. The respondent, who alleged that they were subjected to vilifying conduct, opposed the appeal.

The primary legal issues in this case revolve around the interpretation and application of section 49ZT of the Anti-Discrimination Act 1977. Specifically, the court was required to determine whether the Tribunal erred in its interpretation of section 49ZT(2) and whether the Tribunal's finding that the appellant's conduct did not constitute a reasonable act done in good faith was legally sound. The appellant argued that the Tribunal had misapplied the law in concluding that their conduct was not protected under section 49ZT(2)(c).

The court found that the Tribunal had indeed erred in law when interpreting section 49ZT(2). However, the court also determined that the Tribunal's conclusion that the appellant's conduct was not protected under section 49ZT(2)(c) was not an error of law. Consequently, the court allowed the appellant's appeal on the ground of error of law in the interpretation of section 49ZT(2). Nevertheless, the court decided not to extend the appeal to the merits and instead limited the hearing on the merits to the reconsideration of the Tribunal's finding regarding the exception provided by section 49ZT(2)(c) and any consequential orders. The order under appeal was set aside, and the appellant's application for leave to extend the appeal to the merits was granted.

Orders

Orders of the court

1. Appellant's appeal allowed 2. Respondent's application in its amended reply for the Tribunal's order to be upheld and the appellant's appeal dismissed on other grounds dismissed 3. Order under appeal set aside 4. Appellant's application for leave to extend the appeal to the merits granted 5. The hearing on the merits is limited to reconsideration of the Tribunal's finding that the respondent's conduct was not unlawful because it satisfied the exception provided by s 49ZT(2)(c); and the making of any consequential order 6. Directions hearing to be fixed by the Registrar.

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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