Ekermawi v Jones and Harbour Radio Pty Ltd

[2013] NSWADT 79

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Ekermawi v Jones and Harbour Radio Pty Ltd [2013] NSWADT 79

Hearing dates:

26 March 2013

Decision date:

17 April 2013

Jurisdiction:

Equal Opportunity Division

Before:

Magistrate N Hennessy, Deputy President

Decision:

1. The applicant's application to amend the complaint is refused.

2. The respondents' application for costs is refused.

3. Matter listed 1 May 2013 at 3 pm to set timetable for the filing and service of further material unless parties agree to a timetable prior to that date.

Catchwords:

EQUAL OPPORTUNITY - complaint of racial vilification - application to amend complaint to include entire broadcast or further specified comments in the broadcast - transcript of broadcast tendered - alternative applications made - whether fair to award costs

Legislation Cited:

Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997

Cases Cited:

Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280

Category:

Interlocutory applications

Parties:

Sam Ekermawi (Applicant)
Alan Jones (Respondent)
Harbour Radio Pty Ltd t/as Radio 2GB (Respondent)

Representation:

Counsel
P Batley (Applicant)
K Eastman SC (1st and 2nd Respondents)
Legal Aid (Applicant)
Baker & McKenzie (1st and 2nd Respondents)

File Number(s):

101021

REASONS FOR DECISION

Introduction

1. Mr Ekermawi has complained that three comments made by Alan Jones when broadcasting on Radio 2GB during the morning of 8 December 2005, constitute racial vilification. Mr Ekermawi's complaint to the Anti-Discrimination Board was prompted by an article published by a journalist, David Marr, on 13 December 2005 which quoted the three comments.

1. Mr Ekermawi now applies to amend his complaint to include the entire program (Breakfast with Alan Jones). The Tribunal may amend a complaint to include additional complaints and anything else that was not included in the complaint as investigated by the President of the Anti-Discrimination Board: Anti-Discrimination Act 1977 (AD Act), s 103.

1. I refuse the application to amend because Mr Ekermawi is not alleging that everything Mr Jones said during the entire program constitutes racial vilification. The context in which the three comments were made is relevant when determining whether those comments breach the racial vilification provisions of the AD Act. But the context can be taken into account without amending the complaint to formally include the entire program.

1. Mr Ekermawi's alternative application was that the complaint should be amended to add further specific comments that Mr Jones made during the program. Mr Ekermawi's lawyer sought to tender a transcript of sections of the program identifying further comments. The respondents opposed that application firstly because they were not on notice that it was going to be made and secondly because they objected to the transcript of the program being admitted. I upheld that objection because the origin and veracity of the transcript had not been established.

1. Mr Ekermawi's lawyers then submitted that the Tribunal should allow the complaint to be amended by the addition of unspecified further comments to be identified in Amended Points of Claim. I reject that application because unless the additional comments are identified, I cannot assess whether or not they are likely to breach the racial vilification provisions.

1. Consequently the primary and both the alternative applications for amendment are refused. There is no need to address the respondents' submissions that the application for amendment is an abuse of process or that the application for amendment should be refused because of undue delay.

1. In the rest of the decision I provide some background information about the transcript and say why I refused to accept it into evidence for the purpose of the amendment application. Finally I address and reject the respondents' application for costs.

Admissibility of transcript

1. The transcript Mr Ekermawi sought to tender when applying to amend his complaint is Appendix 4 to an Australian Communications and Media Association (ACMA) Investigation Report into Breakfast with Alan Jones broadcast by 2 GB on various dates including 8 December 2005. I will refer to it as the "ACMA transcript". The lawyer for the respondents said that the second respondent had provided a copy of the recording of the program to ACMA for the purpose of its investigation.

1. The respondents objected to the tender of the ACMA transcript because the origin and accuracy of the transcript had not been established. Mr Ekermawi's lawyer pointed out that it had been admitted into evidence and marked "Exhibit B" in prior interlocutory proceedings: Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280. I understand that the document Mr Ekermawi's lawyer sought to tender is the same document as Exhibit B, except that certain comments as well as the three that are currently the subject of the complaint are highlighted.

1. The respondents' second objection to the tender of the ACMA transcript was that they were not on notice of the alternative application for amendment. The respondents did not apply for an adjournment presumably because I refused to admit the transcript into evidence. My reason for rejecting the transcript was that I accepted the second respondent's submission that its origin and veracity had not been established.

1. I note that during the investigation of the complaint the President of the Anti-Discrimination Board wrote to the second respondent requesting a response to Mr Ekermawi's complaint. On 14 June 2007, having not received a response within the specified time, the President issued a notice under s 90B(3) of the AD Act requiring the second respondent to provide certain information, including the following:

Please advise if Mr Jones made the comments that the complainant attributes to him. If possible, please provide a transcript or recorded copy of the broadcast.

1. By letter of 16 July 2007 from the second respondent to the President of the Anti-Discrimination Board, the second respondent impliedly agreed that Mr Jones had made the three comments. The letter reproduced extracts from a transcript of the program including Mr Jones' introductory remarks about racial tension in the Cronulla Beach area. The second respondent submitted that the background information 'set the scene' for the talk back discussion that occurred later in the program. The letter went on to extract further sections of the transcript with "Caller N" to illustrate that Mr Jones had cautioned in the "strongest terms" against racial violence. Finally the letter transcribed the three comments relied on by Mr Ekermawi and the immediate context in which those comments were made.

1. It appears that neither a sound recording nor a complete transcript was provided. Mr Ekermawi's lawyers indicated that they will issue a summons to the second respondent to produce the sound recording of the program and any transcript.

Costs

1. The respondents applied for their costs of responding to the amendment application. The Tribunal has power to award costs in accordance with s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Costs may only be awarded if the Tribunal is satisfied that it is fair to do so having regard to certain specified matters and any other matter that the Tribunal considers relevant.

1. The second respondent submitted that it is fair to award costs in this case because the respondents came to meet an application for amendment to include the entire broadcast. Without notice, an alternative application for amendment was made during the hearing. The amendment application as set out in the applicant's written submissions could have been dealt with on the papers, that is, without a hearing. If Mr Ekermawi had filed evidence of the alternative amendment he was seeking, the respondents would have understood the case against them and costs would not have been wasted.

1. The second basis for submitting that it was fair to award costs was that although Mr Ekermawi's application was to include the entire program as part of the complaint, he did not adduce evidence of the entire program. The tender of the ACMA transcript was rejected.

1. Mr Ekermawi's lawyer submitted that nothing he did or did not do before or during the hearing has affected the respondents' costs. The matter was listed for an oral hearing and the addition of alternative applications for amendment did not put the respondents to any further expense.

1. I agree with that submission. Mr Ekermawi's lawyer put forward two alternative submissions at the hearing that were not the subject of the written application to amend. But the respondents did not apply for an adjournment and the hearing went ahead. No extra costs have been incurred as a result of the alternative applications having been made. As to the respondents' second point, the failure of Mr Ekermawi's lawyer to adduce evidence of what the first respondent said throughout the entire program is not a sufficient basis for a costs order. The Tribunal did not accept the ACMA transcript into evidence but there was no evidence that a complete authorised audio record or transcript exists.

Orders

(1)   The applicant's application to amend the complaint is refused.

(2)   The respondents' application for costs is refused.

(3)   Matter listed 1 May 2013 at 3 pm to set timetable for the filing and service of further material unless parties agree to a timetable prior to that date.

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Decision last updated: 17 April 2013