Burns v Laws (No 4) - [2007] NSWADT 220

CITATION: Burns v Laws (No 4) [2007] NSWADT 220

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Gary Burns
RESPONDENT
John Laws

FILE NUMBER: 051044

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 17 September 2007

DATE OF DECISION:
25 September 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

CASES CITED: Burns v Laws [2005] NSWADT 229
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Laws (No 3) [2007] NSWADT 164

REPRESENTATION:
APPLICANT
N Llewellyn, solicitor
RESPONDENT
J Robb, solicitor

ORDERS: The Respondent is to pay to the Applicant the costs of and incidental to the Applicant’s application for the costs incurred by him in defending the Respondent’s application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.

1 In the complaint to which these proceedings relate, the Applicant, Mr Gary Burns alleged that the Respondent, Mr 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 On 16 June 2005, Mr Laws applied to the Tribunal for an order summarily dismissing the complaint under s. 102 of the Anti-Discrimination Act1977. In a decision delivered on 10 October 2005 (Burns v Laws [2005] NSWADT 229), the Tribunal dismissed the application. It ordered that the costs of the application be reserved.

3 In a majority decision delivered on 1 March 2007 (Burns v Laws (No 2) [2007] NSWADT 47), the Tribunal, constituted by the present members of the Panel, dismissed Mr Burns’ complaint. This decision is the subject of an appeal by Mr Burns to an Appeal Panel.

4 In a further decision delivered on 27 July 2007 (Burns v Laws (No 3) [2007] NSWADT 164 – ‘the costs judgment’), we awarded to Mr Burns the costs of the unsuccessful application by Mr Laws for summary dismissal of the complaint, as agreed or assessed on a party-party basis. Mr Laws has appealed against this decision to an Appeal Panel.

5 Our decision in the costs judgment was based on a conclusion that there were circumstances that ‘justified’ an award of costs, despite the presumption that each party to an inquiry conducted into a complaint under the Anti-Discrimination Act should pay his or her own costs (see s. 110 of this Act).

6 In the concluding paragraph of the costs judgment (paragraph [56]), we stated: ‘Neither party applied for the costs incurred in relation to this application by Mr Burns.’ Order 2 was as follows: ‘There will be no order as to the costs of this application by the Applicant.’

7 In a letter dated 1 August 2007 to the Registrar, Mr Llewellyn, solicitor for Mr Burns, requested reconsideration of Order 2. In a reply dated 8 August…

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 Laws (No 4)

Details

AGLC: Burns v Laws (No 4) [2007] NSWADT 220
Case: [2007] NSWADT 220
Decision Date: 25 September 2007

CaseChat Overview and Summary

The case of Burns v Laws (No 4) arose in the Federal Court of Australia, with the Applicant, Mr. Burns, bringing a claim against the Respondent, Mr. Laws, for vilification on the basis of his sexual orientation. Mr. Burns alleged that Mr. Laws made defamatory statements about him on social media, which were intended to vilify him due to his homosexuality. The Respondent sought to dismiss the complaint on summary grounds, which the Applicant opposed.

The central legal issue before the court was whether the statements made by Mr. Laws constituted vilification as defined under the relevant statute. The court had to determine if the statements were made in a manner that was reasonably likely to incite hatred or contempt towards Mr. Burns because of his sexual orientation, or to ridicule, revile, or humiliate him in that capacity. Additionally, the court needed to assess the appropriate procedural steps for handling the Respondent's application for summary dismissal, particularly concerning the allocation of costs.

The court found that the statements made by Mr. Laws were indeed vilifying, as they met the criteria for vilification under the statute. The language used was deemed to be derogatory and intended to incite contempt towards Mr. Burns on the basis of his sexual orientation. Regarding the procedural aspect, the court ruled that the Respondent's application for summary dismissal was not well-founded, and thus, the costs associated with that application should be borne by the Respondent. The court ordered that Mr. Laws was to pay Mr. Burns' costs for defending the application for summary dismissal.

The final orders of the court mandated that the Respondent, Mr. Laws, was to compensate the Applicant, Mr. Burns, for the costs incurred in defending the application for summary dismissal. The costs were to be assessed or agreed upon on a party-party basis, reflecting the court's decision that the Respondent's application was not justified.

Orders

Orders of the court

The Respondent is to pay to the Applicant the costs of and incidental to the Applicant's application for the costs incurred by him in defending the Respondent's application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.

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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CITATION:	Burns v Laws (No 4) [2007] NSWADT 220
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT John Laws
FILE NUMBER:	051044
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	17 September 2007
DATE OF DECISION:	25 September 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
CASES CITED:	Burns v Laws [2005] NSWADT 229 Burns v Laws (No 2) [2007] NSWADT 47 Burns v Laws (No 3) [2007] NSWADT 164
REPRESENTATION:	APPLICANT N Llewellyn, solicitor RESPONDENT J Robb, solicitor
ORDERS:	The Respondent is to pay to the Applicant the costs of and incidental to the Applicant’s application for the costs incurred by him in defending the Respondent’s application for summary dismissal of this complaint, as agreed or assessed on a party-party basis.