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
[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.
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Details
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.