JM and JN v QL and QM - [2010] NSWADT 66

CITATION: JM and JN v QL and QM [2010] NSWADT 66
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANTS
JM and JN
RESPONDENTS
QL and QM

FILE NUMBER: 081044

HEARING DATES: 2 & 3 July 2009

SUBMISSIONS CLOSED: 17 August 2009

DATE OF DECISION:
12 March 2010

BEFORE: Hennessy N - Magistrate (Deputy President); Monaghan-Nagle L - Non-Judicial Member; Weule B - Non-Judicial Member

CATCHWORDS: Discrimination, homosexuality and HIV/AIDS vilification

LEGISLATION CITED: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997

CASES CITED: Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Sharma v Legal Aid Queensland [2002] FCAFC 196
Qantas Airways v Gama [2008] FCAFC 69
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

REPRESENTATION:
APPLICANT
I Chatterjee, solicitor
RESPONDENT
Agent [Name not disclosed]

ORDERS: 1. The complaints of homosexual vilification against QM are substantiated in part
2. The complaints of HIV/AIDS vilification against QL and QM are substantiated in part
3. QM is to pay JM damages of $1500 within 28 days of the date of these reasons
4. QM is to pay JN damages of $1500 within 28 days of the date of these reasons
5. QL is to pay JM damages of $3,500 within 28 days of the date of these reasons
6. QL is to pay JN damages of $3,500 within 28 days of the date of these reasons
7. Any application for costs is to be made within 28 days of the date of these reasons. Any reply to that application is to be made within a further 28 days. Any application for costs will be determined ‘on the papers’ after that time.

REASONS FOR DECISION

CONFIDENTIALITY ORDER

1 Following the hearing, the applicants applied for certain confidentiality orders to be made in these proceedings. The respondents replied in writing. Having considered those submissions, we are satisfied by reason of the confidential nature of the applicants’ HIV positive status, that the following orders should be made pursuant to s 75(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act):

1. The disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the applicants is prohibited.

2. The doing of any other thing that identified or may lead to the identification of the applicants is prohibited.

3. The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence is before the Tribunal is prohibited.

2 We have written this decision in a way which should not lead to the identification of the applicants. We have not referred to the applicants, the respondents or any witnesses by name and have not identified the location in which the applicants lived. While we have not made a specific order that the identities…

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: [2010] NSWADT 66
Decision Date: 12 March 2010

CaseChat Overview and Summary

JM and JN brought complaints against QL and QM concerning alleged incidents of discrimination and vilification. The case was heard by the Anti-Discrimination Board of New South Wales (ADB). The complainants alleged that the respondents had discriminated against them on the basis of their homosexuality and HIV/AIDS status, and that the respondents had also vilified them on the same grounds. The ADB was required to determine whether the complaints were substantiated and, if so, what remedies should be ordered.

The legal issues before the ADB were whether the respondents had engaged in conduct that was discriminatory and vilifying towards the complainants, and if so, what remedies should be ordered. The ADB had to consider the evidence presented by both parties and the relevant provisions of the Anti-Discrimination Act 1977 (NSW). The ADB had to determine whether the conduct of the respondents was discriminatory or vilifying and, if so, whether it was reasonable for the complainants to feel offended, humiliated or intimidated by the conduct.

The ADB found that the complaints of homosexual vilification against QM were substantiated in part and the complaints of HIV/AIDS vilification against QL and QM were also substantiated in part. The ADB found that QM had engaged in conduct that was vilifying towards the complainants on the basis of their homosexuality, and that QL and QM had engaged in conduct that was vilifying towards the complainants on the basis of their HIV/AIDS status. The ADB found that the conduct of the respondents was unreasonable and that the complainants were reasonable to feel offended, humiliated and intimidated by the conduct. The ADB ordered that QM pay JM and JN $1500 each in damages and that QL pay JM and JN $3,500 each in damages. The ADB also ordered that any application for costs be made within 28 days of the date of these reasons and that any reply to that application be made within a further 28 days. Any application for costs will be determined ‘on the papers’ after that time.

Orders

Orders of the court

1. The complaints of homosexual vilification against QM are substantiated in part

2. The complaints of HIV/AIDS vilification against QL and QM are substantiated in part

3. QM is to pay JM damages of $1500 within 28 days of the date of these reasons

4. QM is to pay JN damages of $1500 within 28 days of the date of these reasons

5. QL is to pay JM damages of $3,500 within 28 days of the date of these reasons

6. QL is to pay JN damages of $3,500 within 28 days of the date of these reasons

7. Any application for costs is to be made within 28 days of the date of these reasons. Any reply to that application is to be made within a further 28 days. Any application for costs will be determined ‘on the papers’ after that time.

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:	JM and JN v QL and QM [2010] NSWADT 66 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS JM and JN RESPONDENTS QL and QM
FILE NUMBER:	081044
HEARING DATES:	2 & 3 July 2009
SUBMISSIONS CLOSED:	17 August 2009
DATE OF DECISION:	12 March 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Monaghan-Nagle L - Non-Judicial Member; Weule B - Non-Judicial Member
CATCHWORDS:	Discrimination, homosexuality and HIV/AIDS vilification
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Sharma v Legal Aid Queensland [2002] FCAFC 196 Qantas Airways v Gama [2008] FCAFC 69 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
REPRESENTATION:	APPLICANT I Chatterjee, solicitor RESPONDENT Agent [Name not disclosed]
ORDERS:	1. The complaints of homosexual vilification against QM are substantiated in part 2. The complaints of HIV/AIDS vilification against QL and QM are substantiated in part 3. QM is to pay JM damages of $1500 within 28 days of the date of these reasons 4. QM is to pay JN damages of $1500 within 28 days of the date of these reasons 5. QL is to pay JM damages of $3,500 within 28 days of the date of these reasons 6. QL is to pay JN damages of $3,500 within 28 days of the date of these reasons 7. Any application for costs is to be made within 28 days of the date of these reasons. Any reply to that application is to be made within a further 28 days. Any application for costs will be determined ‘on the papers’ after that time.