Burns v Laws (No 3)

Case [2007] NSWADT 164

CITATION: Burns v Laws (No 3) [2007] NSWADT 164
DIVISION: Equal Opportunity Division
PARTIES: APPLICANT
Gary Burns
RESPONDENT
John Laws
FILE NUMBER: 051044
HEARING DATES: On the papers
SUBMISSIONS CLOSED: 1 May 2007
 
DATE OF DECISION: 
27 July 2007
BEFORE: Chesterman M - ADCJ (Deputy President); Mooney L - Non Judicial Member; Quayle C - Non Judicial Member
CATCHWORDS: Vilification - Homosexual
MATTER FOR DECISION: Costs
LEGISLATION CITED: Anti-Discrimination Act 1977
Supreme Court Act 1970
CASES CITED: Battenberg v The Union Club (No 3) [2005] NSWADT 126
Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35
Burns v Dye [2002] NSWADT 32
Burns v Laws [2005] NSWADT 229
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24
Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10
Collier v Sunol (No 2) [2006] NSWADT 88
Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4
Sunol v Collier (EOD) [2006] NSWADTAP 51
Wentworth v Wentworth, unreported, Court of Appeal, NSW, 21 February 1996 (BC9600215)
Williams v Spautz (1992) 174 CLR 509
Y v W and X (EOD) [2003] NSWADTAP 44
REPRESENTATION:

APPLICANT
N Llewellyn, solicitor

RESPONDENT
G Renolds SC and P Kulevski, barrister
ORDERS: 1. The Respondent is to pay to the Applicant the costs of the Respondent’s application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.; 2. There will be no order as to the costs of this application by the Applicant.

Introduction

1 This judgment relates to an application for costs by the Applicant, Mr Gary Burns. In the complaint to which these proceedings relate, Mr Burns alleged that the Respondent, John Laws, who is a high-profile radio commentator, unlawfully vilified homosexual men in the course of a radio program broadcast on Radio 2UE, a Sydney radio station, and on an associated network of radio stations across Australia.

2 The program in question was broadcast on the morning of 3 November 2004. On 17 November 2004, Mr Burns forwarded his complaint to the Anti-Discrimination Board. On 31 March 2005, the President of the Board, having determined that the matter could not be resolved through conciliation, referred the complaint to the Tribunal.

3 On 10 June 2005, Mr Burns filed Amended Points of Claim in which he asserted that statements made by Mr Laws in the broadcast on 3 November 2004 and set out in an annexed transcript constituted unlawful homosexual vilification under s. 49ZT of the Anti-Discrimination Act 1977 (‘the AD Act’).

4 These statements made no reference to Mr Burns. They related in large measure to an American man called Carson Kressley, who had appeared in television program broadcast in Sydney on the evening of 2 November 2004 and who in the course of that program had more than once drawn attention to his own homosexuality.

5 Section 49ZT(1), which is qualified by a number of defences set out in s. 49ZT(2), provides:-

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AGLC
Burns v Laws (No 3) [2007] NSWADT 164
Case
[2007] NSWADT 164
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Burns v Laws (No 3) involved a dispute between the parties concerning alleged defamatory remarks made by the Respondent, Laws, about the Applicant, Burns, regarding his sexual orientation. The case revolved around the issue of whether Laws' statements were defamatory in nature, specifically focusing on the vilification of Burns on the basis of his homosexuality. The Applicant sought damages for the alleged defamatory conduct, which Laws contested, leading to a summary dismissal application that was subsequently contested by the Applicant.

The primary legal issue before the court was whether the statements made by Laws could be considered defamatory, particularly in the context of vilifying Burns on the basis of his sexual orientation. This required an examination of the legal standards and precedents concerning defamation and vilification in Australian law, particularly as they applied to the protection of individuals from defamatory statements based on their sexual orientation. The court also had to determine whether the application for summary dismissal was appropriate, considering the arguments and evidence presented by both parties.

The court found that the Respondent's application for summary dismissal was not appropriate, as there were genuine issues for trial regarding the defamatory nature of the statements made by Laws about Burns. The court held that the alleged remarks could be considered defamatory and potentially vilifying, as they touched upon sensitive aspects of Burns' personal life and character. Consequently, the court ordered that the Respondent was to pay the Applicant the costs associated with the application for summary dismissal, reflecting the court's view that the dismissal was not warranted. There was no order regarding the costs of the Applicant's application.

Orders

Orders of the court

1. The Respondent is to pay to the Applicant the costs of the Respondent's application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.; 2. There will be no order as to the costs of this application by the Applicant.

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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