Ekermawi v Fairfax Publications Pty Ltd - [2008] NSWADT 351

CITATION: Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Sam Ekermawi
RESPONDENT
Fairfax Publications Pty Ltd

FILE NUMBER: 081121

HEARING DATES: 2 December 2008

SUBMISSIONS CLOSED: 2 December 2008

EXTEMPORE DECISION DATE: 2 December 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave, racial vilification complaint

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3
Kahn v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131

REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Lynch, solicitor

ORDERS: Leave is refused.

1 On 2 December 2008 the Tribunal gave the following oral reasons for decision.

2 Mr Ekermawi lodged a complaint with the Anti-Discrimination Board on 8 August 2008 in relation to an article in the Sydney Morning Herald on 4 August 2008. The article was written by Ms Hirsi Ali and it related to the review of a book entitled The Suicide of Reason by Lee Harris. The review had been published previously in the New York Times.

3 The respondent to this application is Fairfax Publications Pty Limited. Ms Hirsi Ali was removed as a respondent as she is not a resident in Australia and neither Mr Ekermawi nor the Anti-Discrimination Board was able to contact her in relation to these proceedings.

4 The President of the ADB declined the complaint as lacking in substance. Mr Ekermawi needs the Tribunal’s permission or “leave” before he can go proceed: Anti-Discrimination Act 1977, section 96(1). The principles by which the Tribunal determines whether to grant leave were set out in a decision of Xu v Sydney West Area Health Service [2006] NSWADT 3 and I adopt the principles in that case as set out particularly in paragraphs 17 and 18. In summary, Mr Ekermawi needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has some prospects of success. The provisions under which Mr Ekermawi says his complaint comes are sections 20B and 20C of the Anti-Discrimination Act 1977. Those provisions state that:

In this Division, "public act" includes:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

20C Racial vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground…

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.

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Details

Case: [2008] NSWADT 351
Decision Date: 2 December 2008

CaseChat Overview and Summary

The applicant, Ekermawi, sought leave to appeal against a decision which dismissed his complaint of racial vilification under the Racial Discrimination Act 1975 (Cth) against the respondent, Fairfax Publications Pty Ltd. The complaint arose from a newspaper article published by the respondent that allegedly contained statements which were racially vilifying. The court was tasked with determining whether the application for leave to appeal should be granted.

The primary legal issue was whether the statements in the article were capable of being considered ordinary comments of a private individual or if they were of a kind that could be reasonably regarded as exposing the applicant to hatred or contempt on the grounds of race. The court had to assess if the statements were of a general nature or if they specifically targeted the applicant in a way that could be considered vilification. Furthermore, the court needed to determine if the application met the criteria for leave to appeal as outlined in the relevant legislation.

The court found that the statements in the article were of a general nature and did not specifically target the applicant in a manner that could be considered racially vilifying. The court concluded that the application did not meet the criteria for leave to appeal, as it did not demonstrate that the appeal would have a reasonable chance of success or that there was another compelling reason for the appeal to proceed. Consequently, the court refused the application for leave to appeal.

Orders

Orders of the court

Leave is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sam Ekermawi RESPONDENT Fairfax Publications Pty Ltd
FILE NUMBER:	081121
HEARING DATES:	2 December 2008
SUBMISSIONS CLOSED:	2 December 2008
EXTEMPORE DECISION DATE:	2 December 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave, racial vilification complaint
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service [2006] NSWADT 3 Kahn v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
REPRESENTATION:	APPLICANT In person RESPONDENT K Lynch, solicitor
ORDERS:	Leave is refused.