Carter v Brown

Case [2010] NSWADT 109

CITATION: Carter v Brown [2010] NSWADT 109
DIVISION: Equal Opportunity Division
PARTIES:

APPLICANT
Brian Carter

RESPONDENT
Jason Brown (071092)
Rodney Fisher (081139)
FILE NUMBER: 071092, 081139
HEARING DATES: 22 and 23 February 2010
SUBMISSIONS CLOSED: 23 February 2010
 
DATE OF DECISION: 
6 May 2010
BEFORE: Furness G - Judicial Member; Lowe A - Non-Judicial Member; Weule B - Non-Judicial Member
CATCHWORDS: Equal Opportunity- homosexual vilification- victimisation – award of damages - apology
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
CASES CITED: Burns v Dye [2002] NSWADT 32
R v D and E Marinkovic [1996] EOC 92-841)
Anderson v Thompson [2001] NSWADT 11
Z v University of A & Ors (No 7) [2004] NSWADT 81
Kimble v Souris [2003] NSWADT 49.
Western Aboriginal Legal Service Ltd v Jones &Anor [2000] NSWADT 102
Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Harou-Soudon v TCN Channel Nine Pty Ltd [1994] EOC 92-604
Kazak v John Fairfax Publications Ltd [2000] NSWADT 77
O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106
JM and JN v QL and QM [2010] NSWADT 66
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Sharma v Legal Aid Queensland [2002] FCAFC 196 at [40]. Qantas Airways v Gama [2008] FCAFC 69
Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98
Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102
Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 [at 16]
Trad v Jones & anor (No. 3) [2009] NSWADT 318
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42
Hill v Water Resources Commission (1985) EOC 92 - 127 at 76, 290
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Daniels v Hunter Water Board (1994) EOC 92-626
Harriton v Stephens [2004] NSWCA 93 at [7] Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22
Haines v Bendall [1991] HCA 15; (1990) 172 CLR 60 at 63
Bhattacharya v Department of Public Works (1984) at 76, 133
REPRESENTATION:

APPLICANT
K Eastman, barrister

RESPONDENT
Mr Vincent, barrister for J Brown
Rodney Fisher in person
ORDERS: 1.We order that the respondent Jason Brown pay the applicant $20,000 by way of compensation for the loss suffered by reason of the respondent’s conduct
2.We order that the respondent Rodney Fisher pay the applicant $15,000 by way of compensation for the loss suffered by reason of the respondent’s conduct
3.We order that each respondent publish the following in the press and online publication of the Western Advocate within a period of one month from the date of service of these orders on each respondent."I, Jason Brown hereby apologise unreservedly to Brian Carter for my speech and…

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Details
AGLC
Carter v Brown [2010] NSWADT 109
Case
[2010] NSWADT 109
Decision Date

CaseChat Overview and Summary

The Administrative Decisions Tribunal of New South Wales heard a case between Brian Carter and two respondents, Jason Brown and Rodney Fisher, regarding claims of vilification and victimisation. Carter sought damages and an apology for conduct that allegedly contravened the Anti-Discrimination Act. The dispute centred on comments and actions made by Brown and Fisher, which Carter claimed caused him significant distress.

The Tribunal needed to determine whether the actions of the respondents constituted vilification and, in the case of Fisher, victimisation. It also had to assess the appropriate compensation for Carter and the necessity of an apology from the respondents. Furthermore, the Tribunal had to consider whether an injunction should be issued to prevent the respondents from repeating the offensive conduct.

The Tribunal found that Brown's conduct constituted vilification, while Fisher's conduct was found to be both vilification and victimisation. It awarded Carter $20,000 in compensation from Brown and $15,000 from Fisher. The Tribunal also mandated that both respondents publish apologies in a local newspaper and online publication. Additionally, it issued an injunction against the respondents to prevent any repetition of the offensive conduct. The Tribunal declined to award the costs of the applicant's disbursements for the vacated hearing day.

The Tribunal's decision was based on the evidence presented and the legal standards outlined in the Anti-Discrimination Act. It emphasised the importance of upholding anti-discrimination laws and the need for public accountability through the mandated apologies and injunctions.

Orders

Orders of the court

1.We order that the respondent Jason Brown pay the applicant $20,000 by way of compensation for the loss suffered by reason of the respondent’s conduct

2.We order that the respondent Rodney Fisher pay the applicant $15,000 by way of compensation for the loss suffered by reason of the respondent’s conduct

3.We order that each respondent publish the following in the press and online publication of the Western Advocate within a period of one month from the date of service of these orders on each respondent."I, Jason Brown hereby apologise unreservedly to Brian Carter for my speech and conduct which has been found by the Administrative Decisions Tribunal to constitute vilification in contravention of the Anti-Discrimination Act and which has brought him unnecessary distress. This apology is given in accordance with orders made by the NSW Administrative Decisions Tribunal.”"I, Rodney Fisher hereby apologise unreservedly to Brian Carter for my speech and conduct which has been found by the Administrative Decisions Tribunal to constitute vilification and victimisation in contravention of the Anti-Discrimination Act and which has brought him unnecessary distress. This apology is given in accordance with orders made by the NSW Administrative Decisions Tribunal.”

4.We also make an order enjoining each respondent from continuing or repeating any of the speech or other conduct which we have found to constitute vilification in the case of Jason Brown and vilification and victimisation in the case of Rodney Fisher.

5.In relation to the application for the payment of disbursements we do not find that any of the paragraphs of s.88 (1A) of the Administrative Decisions Tribunal Act justify an award of the cost of the applicant’s disbursements for the day of hearing which was vacated.

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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