Jones & Anor v Ekermawi - [2009] NSWCA 388

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Jones & Anor v Ekermawi [2009] NSWCA 388
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 November 2009

JUDGMENT DATE:
7 December 2009

JUDGMENT OF: McColl JA at 1; Handley AJA at 2; Sackville AJA at 3

DECISION: 1. Grant the application for leave to appeal
2. Dismiss the appeal
3. The applicants must pay Mr Ekermawi’s costs of the application for leave to appeal and of the appeal

CATCHWORDS: ADMINISTRATIVE LAW - procedural fairness - application in the Administrative Decisions Tribunal for leave to proceed with complaint of racial vilification - misunderstanding of Tribunal's decision by complainant - whether Tribunal denied complainant procedural fairness

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997, s 73
Anti Discrimination Act 1977, ss 20C, 87A, 87B, 88, 89, 89A, 90, 92, 93A, 96, 102, 108
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
Consumer, Trader and Tenancy Tribunal Act 2001, s 35
Supreme Court Act 1970, ss 69, 101(2)(r)

CATEGORY: Principal judgment

CASES CITED: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1
Collection House Ltd v Taylor [2004] VSC 49
Commonwealth v BIS Cleanaway Limited [2008] NSWCA 170
Décor Corporation Pty Ltd v Dart Industrial Inc (1991) 33 FCR 397
Deva v University of Western Sydney [2008] NSWCA 137
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Ekermawi v Jones [2008] NSWADT 93
Italiano v Carbone [2005] NSWCA 177
Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294
Salido v Nominal Defendant (1993) 32 NSWLR 524
Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295
Xu v Sydney West Area Health Service [2006] NSWADT 3

PARTIES: Alan Jones (First Applicant)
Harbour Radio Pty Ltd (Second Applicant)
Sam Ekermawi (Respondent)

FILE NUMBER(S): CA 40186/09

COUNSEL: R Beech-Jones SC and R Graycar (Applicants)
P Batley (Respondent)

SOLICITORS: Baker & McKenzie (Applicants)
Legal Aid Commission of NSW (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30044/08

LOWER COURT JUDICIAL OFFICER: Schmidt AJ

LOWER COURT DATE OF DECISION: 20 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

CA 40186 of 2009

McCOLL JA
HANDLEY AJA
SACKVILLE AJA
7 December 2009

JONES & ANOR v EKERMAWI

Judgment

1 McCOLL JA: I agree with Sackville AJA.

2 HANDLEY AJA: I agree with Sackville AJA.

3 SACKVILLE AJA: This is an application for leave to appeal against a decision of a Judge of the Supreme Court (Schmidt AJ). The applicants for leave are, respectively, a radio broadcaster (“Mr Jones”) and the licensee of a radio station broadcasting in Sydney (“2GB”).

4 The first respondent to the application (“Mr Ekermawi”) made a complaint in 2006 to the Anti-Discrimination Board (“ADB”). Mr Ekermawi complained that Mr Jones, in his program broadcast on Station 2GB on 8 December 2005, incorporated material that constituted racial vilification of people of the Muslim faith or of Middle Eastern or Arabic background, in contravention of s 20C of the Anti-Discrimination Act 1977 (“Anti-Discrimination Act”). The program was broadcast during a period in which sporadic unrest had occurred in Cronulla, a beach suburb of Sydney.

5 The President of the ADB declined to deal with Mr Ekermawi’s complaint pursuant to s 92(1) of the Anti-Discrimination Act, which enables the President to decline a complaint if (among other things) he or she is satisfied that the complaint is “lacking in substance”.

6 The Administrative Decisions Tribunal (“Tribunal”) subsequently refused to grant Mr Ekermawi leave to proceed with the complaint, such leave being required by s 96 of the Anti-Discrimination Act: Ekermawi v Jones [2008] NSWADT 93. As was noted by Tobias JA (with whom Campbell and Bell JJA agreed) in Deva v University of Western Sydney [2008] NSWCA 137, at [6], the Tribunal’s decision to refuse leave could not be the subject of an appeal to the Appeal Panel of the Tribunal: Anti-Discrimination Act, s 96(4). Accordingly, the only avenue open to Mr Ekermawi to challenge the Tribunal’s decision was to institute proceedings in the Supreme Court for judicial review under s 69 of the Supreme Court Act 1970 (“Supreme Court Act”).

7 Mr Ekermawi duly instituted such proceedings, relying on two grounds. First, the Tribunal had applied an incorrect test for determining whether to grant leave to Mr Ekermawi to pursue his complaint. Secondly, the Tribunal had denied Mr Ekermawi procedural fairness as required by s 73(4) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”). The denial of procedural fairness was said to have occurred because, even though the Tribunal clearly appreciated that Mr Ekermawi had misunderstood what occurred at the hearing, it decided the leave application on the basis of post-hearing submissions without correcting Mr Ekermawi’s misapprehension, thus effectively denying him the opportunity to make submissions.

8 Schmidt AJ upheld both of these grounds and quashed the Tribunal’s decision: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143.

9 The applicants now seek leave to appeal against the decision of the primary Judge. They require leave to appeal because the orders made by her Honour, although final, do not involve a matter or claim amounting to, or of the value of $100,000 or more: Supreme Court Act, s 101(2)(r). The application for leave is opposed by Mr Ekermawi. The Tribunal has been joined as a respondent to the application, but has filed a submitting appearance.

THE ISSUES

10 The two questions identified by the applicants as arising on the application for leave to appeal are these:

(i) Did Schmidt AJ err in concluding that the Tribunal had erred in law by positing an incorrect test for the grant of leave under s 96(1) of the Anti-Discrimination Act , namely a test that required a complainant to show a “ substantial reason ” for the grant of leave?

ADT Act

11 Section 73 of the ADT Act relevantly provides as follows:

“(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measure as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so – to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.”

12 The Court heard argument from the applicants, both in relation to the application for leave and, if leave were granted, on the appeal itself. These are my reasons for granting leave to appeal, but dismissing the appeal.

COURSE OF EVENTS

13 In my opinion, the primary Judge was clearly right to uphold Mr Ekermawi’s challenge to the Tribunal’s decision on the ground that the Tribunal failed to comply with the procedural requirements imposed by s 73(4) of the ADT Act. To understand why I have reached this conclusion, it is necessary to set out the course of events.

14 On 17 October 2006, Mr Ekermawi lodged his complaint with the ADB. In his letter of complaint, Mr Ekermawi claimed that statements made on Mr Jones’ program constituted “an incitement of hatred which is the main cause of the Cronulla racist riots”. The ADB treated the complaint as alleging a breach by the applicants of s 20C(1) of the Anti-Discrimination Act which makes it:

“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 of the race of the person or members of the group”.

15 On 13 September 2007, the President of the ADB informed Mr Ekermawi and the applicants that he had decided to decline Mr Ekermawi’s complaint under s 92(1) of the Anti-Discrimination Act. As I have noted, he did so because he was “satisfied that [the complaint was] lacking in substance”. The President gave the following reasons for his decision:

“• The complainant [Mr Ekermawi] was out of Australia at the time the alleged racially vilifying comments/statements were made and only heard of isolated extracts of the broadcast via the internet. The complainant did not provide information regarding the immediate context of the program as a whole in which they were made.

• The respondent [2GB] provided information regarding the context in which the particular comments/statements were made which were verified by transcripts of the broadcast. In context the comments/statements appeared to alter their worth.

Anti-Discrimination Act

16 The President’s letter to Mr Ekermawi advised him that he could request that his complaint be referred to the Tribunal under s 93A of the Anti-Discrimination Act. Mr Ekermawi duly made such a request. He subsequently sought leave from the Tribunal to pursue the complaint, as required by s 96(1) of the Anti-Discrimination Act.

17 On 12 December 2007 the application for leave was heard in the Tribunal by Hennessy DP. Mr Ekermawi appeared in person, while the applicants were represented by 2GB’s Chief Operating Officer. It seems that the proceedings before the Tribunal were recorded. However, no transcript or tape recording was tendered in the judicial review proceedings determined by Schmidt AJ.

18 The material provided to the Tribunal included a copy of Investigation Report No 1485 dated 3 March 2007 (“ACMA Report”), prepared by the Australian Communications and Media Authority (“ACMA”). The ACMA Report made findings about a number of broadcasts made on Mr Jones’ program between 5 and 9 December 2005. In relation to the program broadcast on 8 December 2005, ACMA found that 2GB breached cl 1.3(e) of the Commercial Radio Codes of Practice 2004 (“Code”):

“in that it broadcast a program which was likely to vilify people of Middle Eastern background on the basis of ethnicity and the program was not presented reasonably and in good faith for one of the purposes specified in [cl 1.4] of the Code”.

Anti-Discrimination Act

19 At the conclusion of the hearing, the Tribunal made certain directions. The precise terms of the directions were not in evidence. However, the Tribunal’s decision recorded (at [16]) that it had directed the present applicants:

“to provide details of any remedies agreed to with ACMA as a result of its findings”.

20 On 18 January 2008, 2GB sent a letter to the Tribunal, with a copy to Mr Ekermawi. The letter included the following:

“I refer to the hearing by the Tribunal to consider whether to grant leave for this complaint to proceed to the Tribunal, that was heard and adjourned on 12 December 2007.

At that hearing, the respondents made brief submissions regarding the remedial action that had been agreed by the respondents with the Australian Communications and Media Authority (ACMA) following ACMA’s findings in [the] Investigation Report … As you would be aware, the subject matter of that Investigation Report is substantially similar to the complaint by Mr Ekermawi in this matter.

The Tribunal has provided the respondents in this matter with an opportunity to provide the Tribunal with more detailed information in writing in relation to that remedial action. That information is provided below.

In 2007, [2GB] provided a formal, voluntary undertaking to ACMA to implement the actions set out below. This undertaking has been placed before 2GB’s Board of Directors for notification at a meeting of the Board.

2GB has agreed to produce and implement a supplementary training program on vilification that focuses on talk back radio pursuant to the following arrangements”.

21 On 22 January 2008, Mr Ekermawi responded to 2GB’s letter. He disputed the statement, made in the first paragraph of 2GB’s letter, that the hearing had been adjourned to enable the Tribunal to consider whether to grant leave for the complaint to proceed. Mr Ekermawi continued as follows:

“the fact is leave was granted when Mr Stuart Thomas representing [2GB] and Alan Jones requested that there is no need for another hearing as the ACMA has decided that [2GB] was guilty for the racial and incitement of hatred comments made on radio on the 8 of December 2005 that caused the Cronulla riots. My self and the Honourable Magistrate have taken this as an admission of guilt and that we then had a precedent.

[2GB] has failed to supply the full expert report as per the orders and have only supplied some voluntary key elements”.

22 Mr Ekermawi asked the Tribunal to make a number of orders against 2GB, including orders requiring it to desist from any incitement of hatred or vilification of people of Islamic, Middle Eastern or Arabic background.

THE TRIBUNAL’S DECISION

23 The Tribunal set out the comments the subject of Mr Ekermawi’s complaint. It also recorded the findings made in the ACMA Report.

24 The Tribunal observed that it had set out its approach to determining leave applications under s 96 of the Anti-Discrimination Act in Xu v Sydney West Area Health Service [2006] NSWADT 3. The Tribunal summarised (at [4]) the relevant principles as follows:

AD Act

25 The Tribunal first considered the merits of the complaint and reached (at [15]) the following conclusion:

“The main issue in terms of the merits of the complaint is whether the comments, interpreted in the context of the whole broadcast, meet the test of incitement. I do not have a sound recording of the broadcast so am unable to make any assessment about the tone or mood of the broadcast as a whole. Based on a reading of the transcript, it cannot be said that the complaint is so lacking in substance that it has no reasonable prospects of success. Consequently, lack of merit is not a reason to refuse leave for the complaint to proceed.”

26 The Tribunal then addressed “[o]ther reasons for refusing leave”. It recorded 2GB’s submission that leave should be refused because it had taken appropriate steps to remedy or redress the conduct, and had provided details of those steps in its written submission sent to the Tribunal after the hearing. The Tribunal said (at [16]) that:

“Mr Ekermawi made a submission in reply which suggests that he misunderstood the nature of the Tribunal’s directions at the hearing. The Tribunal reserved its decision and directed that the respondents provide details of any remedies agreed to with ACMA as a result of its findings. Contrary to Mr Ekermawi’s understanding, the Tribunal did not grant leave at the hearing. It is not appropriate for the Tribunal to make the orders suggested by Mr Ekermawi in his submissions.”

27 After referring to 2GB’s proposed training program, the Tribunal, identified (at [19]) the remaining question to be:

“whether the findings of ACMA and the supplementary training program outlined above, justify a decision to refuse Mr Ekermawi leave to proceed with the present complaint. Put another way, given that in the circumstances of this case a partial remedy has been agreed to, is there a substantial reason for giving leave for the complaint to proceed.”

28 The Tribunal acknowledged that the ACMA Report did not enliven the principles of res judicata. Nonetheless, it was in the public interest “to ensure finality and non-duplication of litigation” (at [19]). While a refusal of leave would deprive Mr Ekermawi of the opportunity to seek damages or an apology, he had suffered no more or less damage than any other member of the vilified group. Consequently:

Anti-Discrimination] Act,

THE PRIMARY JUDGMENT: PROCEDURAL FAIRNESS

29 For present purposes, it is necessary only to recount the primary Judge’s reasoning on the procedural fairness issue.

30 Her Honour pointed out (at [47]) that Hennessy DP had:

“expressly found that the plaintiff had misunderstood what had occurred at the hearing. From his submission, it was apparent that he understood that there had been an admission of guilt by the defendants, which had led the Tribunal to grant the leave to proceed which he sought, leaving only the question of remedy to be determined by the Tribunal.”

“[Mr Ekermawi] was complaining that what had been provided by [2GB] was inadequate and contrary to the Tribunal’s direction. Remedy was an issue raised at the hearing by [2GB], after [Mr Ekermawi] had relied on the ACMA report, in order to demonstrate that his complaint had substance. It was [2GB] who had argued that it was relevant to the Tribunal’s consideration of leave, to have regard to the outcome of the ACMA report, and so it was given an opportunity to put the relevant material before the Tribunal and [Mr Ekermawi] was given an opportunity to respond” (at [48]).

31 The primary Judge also pointed out (at [51]) that the ACMA proceedings involved only 2GB, whose broadcasting licence was under possible threat, and not Mr Jones. In her Honour’s view, Mr Ekermawi’s complaint of unlawful discrimination had been entirely overlooked by the Tribunal in considering whether Mr Ekermawi should be granted leave to proceed.

32 In these circumstances, the primary Judge was satisfied (at [53], [56]-[58]) that Mr Ekermawi:

“was not given a fair opportunity to present his case, given his patent misunderstanding that he was granted leave to proceed with his complaint at the hearing before the Tribunal. He understood [2GB] had made a concession as to vilification and that the Tribunal was to consider remedy. As the result of that misunderstanding, [Mr Ekermawi] directed no submissions to the question of leave by way of response to [2GB’s] advice to the Tribunal as to the remedy which had resulted from the ACMA findings, namely a training programme voluntarily implemented by the radio station. All he did was to complain to the Tribunal about the inadequacy of the information provided by [2GB], seeking that further orders be made in that respect, before penalty was determined.

…

Instead of the Tribunal advising [Mr Ekermawi] of his misunderstanding, dealing with his request that further information be provided by [2GB] and giving him the opportunity to respond to what had been advanced by [2GB] as to leave, the decision was given. That, it seems to me, reveals relevant error, especially when it is considered that on the approach adopted by the Tribunal, [Mr Ekermawi] had the obligation to establish that there was a substantial reason for leave to be given. That he was denied the opportunity to make such a case, in relation to the ACMA process and the steps taken by [2GB] in response to it, is patent.

In Hennessy DP’s decision, [Mr Ekermawi’s] request was dealt with only on the basis that ‘it was not appropriate to make the orders suggested’. The complaint that the orders made by the Tribunal at the conclusion of the hearing, as to the production of the documents evidencing the steps taken by [2GB] to remedy or redress the conduct complained of to the ACMA, had not been complied with, was not dealt with. Instead, the decision on leave was given without [Mr Ekermawi] being advised of his misunderstanding and being invited to make submissions as to whether leave should be granted, notwithstanding the remedy which had flowed from the ACMA report.

In the event it is unarguable that [Mr Ekermawi] was not given a fair opportunity to advance submissions as to those questions.”

33 The primary Judge accepted (at [59]) that in order to establish a breach of procedural unfairness, it is usually necessary to show that the claimant lost an opportunity to put information or argument to the decision-maker or otherwise suffered detriment: Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, at 13-14 [36]-[37], per Gleeson CJ. Here Mr Ekermawi had been denied an opportunity to put arguments in response to the applicants’ contentions based on implementation of a training program. In particular, he was denied the opportunity to point out that the complaints made to ACMA differed from his own complaint which related, among other things, to Mr Jones’ conduct. He was also given no opportunity to:

“advance submissions to show that he had no remedy under the ACMA process, especially in relation to the complaint advanced against Mr Jones; that the compliance programme which had been implemented by the radio station could not remedy his complaints, but only the resolution of the breaches of the Code identified by the ACMA process; and that the appropriate remedy for the public vilification with which his complaints were concerned was the likewise public act of [2GB and Mr Jones] broadcasting an apology…”.

34 The applicants had asked what the Tribunal was reasonably able to do when an unrepresented litigant misunderstood what had occurred at a hearing. According to the primary Judge (at [70]):

ADT Act

35 Since Mr Ekermawi had been denied natural justice, his application had to succeed and the Tribunal’s order quashed.

REASONING

36 Mr Beech-Jones SC, who appeared with Ms Graycar for the applicants, did not dispute that the Tribunal was bound to accord procedural fairness to Mr Ekermawi. Nor did he dispute that a failure by the Tribunal to comply in a material respect with its obligations under s 73(4) of the ADT Act would render the Tribunal’s decision liable to be quashed in proceedings brought under s 69 of the Supreme Court Act.

37 No doubt Mr Beech-Jones, in adopting this approach, took into account the cogent reasoning of Basten JA in Italiano v Carbone [2005] NSWCA 177. In that case, so Basten JA held, the Consumer, Trader and Tenancy Tribunal (“CTT Tribunal”) failed to comply with its obligation under s 35 of the Consumer, Trader and Tenancy Tribunal Act 2001 (“CTTT Act”) to ensure that each party was given a reasonable opportunity to present his or her case and to make submissions in relation to the issues in the proceedings. Basten JA characterised (at [106]) these obligations as constituting “core elements of procedural fairness”. His Honour applied (at [113], [115]) the reasoning of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294, where it was held that specific statutory procedures designed to ensure procedural fairness should be understood as mandatory, in the sense that a failure to comply with them would render the relevant decision invalid. Accordingly, a contravention of s 35 of the CTTT Act was to be treated as invalidating the decision of the CTT Tribunal. (Spigelman CJ and Einstein J did not address this issue in their judgments in Italiano v Carbone.) Section 35 of the CTTT Act is no more stringent in its procedural requirements than is s 73(4) of the ADT Act.

38 Mr Beech-Jones submitted that Mr Ekermawi bore the burden of establishing, on the evidence, that a breach of procedural fairness had occurred (in this case by reason of a failure to comply with the requirements of s 73(4) of the ADT Act). Since Mr Ekermawi had not tendered the transcript or tape recording of the Tribunal hearing in the judicial review proceedings, it was impossible to ascertain what had occurred at the hearing. Accordingly, Mr Ekermawi had not established that he had not been put sufficiently on notice that the applicants intended to rely on the proposed training program to justify a refusal of leave to Mr Ekermawi to proceed with his complaint in the Tribunal.

39 It can be accepted that Mr Ekermawi bore the burden of proving the facts necessary to establish a denial of procedural fairness, whether by reason of the Tribunal’s contravention of s 73(4) of the ADT Act or otherwise: Ex parte Lam, at 12-13 [34]-[35], per Gleeson CJ; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1, at 23 [72], per Kirby J. But the applicants’ submission overlooks the nature of Mr Ekermawi’s complaint and the primary Judge’s analysis of that complaint.

40 Mr Ekermawi’s claim that he had been denied procedural fairness (in that the Tribunal had failed to comply with s 73(4) of the ADT Act) did not rest on anything that happened at the Tribunal hearing. The evidence justifies an inference that Hennessy DP stated and recorded clearly enough the directions that she made at the hearing. That, however, is not the issue.

41 As the Tribunal explicitly found (at [16]), Mr Ekermawi’s written submission after the hearing showed that he had misunderstood the Tribunal’s directions. There is no suggestion that the misunderstanding was other than a genuine misapprehension by an unrepresented party of directions made by the Tribunal. The existence of the misunderstanding was fully appreciated by the Tribunal but, as the primary Judge correctly found, it proceeded to determine the leave application without giving Mr Ekermawi the opportunity to make submissions on the critical issue. That issue was whether the remedial action proposed by 2GB was a sufficient reason to deny leave to Mr Ekermawi to proceed with the complaint.

42 The evidence amply demonstrates that this issue was not and could not have been addressed fully at the Tribunal hearing. The applicants’ letter of 18 January 2008 acknowledged that only brief submissions had been made at the hearing on that topic. The very point of the Tribunal’s directions, as its reasons show, was to require the applicants to provide details of the remedies agreed between them and ACMA, a matter that had not been dealt with in any detail at the hearing. By reason of Mr Ekermawi’s misunderstanding of what had occurred, he made no submissions on the critical issue, beyond complaining that he had not been provided with material that enabled him to follow precisely what measures the applicants had put in place.

43 The only practical opportunity for Mr Ekermawi to counter the applicants’ reliance on the proposed training program and to address the significance of the ACMA report for his complaint was to make a written submission to the Tribunal, responding to the applicants’ supplementary written submission. Mr Ekermawi’s patent misunderstanding of what had occurred prevented him from taking advantage of that opportunity.

44 The ADT Act expressly required the Tribunal to take such measures as were “reasonably practicable” to ensure that the parties:

understood the nature of the assertions made in the proceedings and the legal implications of those assertions (s 73(4)(a)); and

had the fullest opportunity practicable to be heard or otherwise to have their submissions considered (s 73(4)(c)).

45 The evidence established that Mr Ekermawi did not understand fully the nature of the assertions made by the applicants in their letter of 18 January 2008 and certainly did not understand the legal implications of those assertions in relation to the application for leave. The evidence also established that Mr Ekermawi did not have the fullest opportunity practicable to be heard. He clearly would have wished to challenge the significance of the applicants’ proposed remedial action had he appreciated that the question of leave had not been resolved in his favour.

46 As the primary Judge found (at [71]-[72]), there were measures that the Tribunal could reasonably have taken to ensure that these difficulties were overcome. No doubt a further hearing would have served the purpose. Even a letter to Mr Ekermawi, setting out in clear terms the issue the Tribunal intended to address and explaining that the applicants were relying on their proposed remedial action to justify a refusal of leave, is likely to have satisfied the Tribunal’s obligations under s 73(4) of the ADT Act. In the absence of any such measures, the Tribunal failed to comply with the statutory requirements defining the content of procedural fairness to be afforded to Mr Ekermawi: cf Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295, at [9], per Byrne J; Collection House Ltd v Taylor [2004] VSC 49, at [26]-[29], per Nettle J.

47 For these reasons, the decision of the primary Judge is not attended by doubt and leave to appeal against her decision should be refused: Décor Corporation Pty Ltd v Dart Industrial Inc (1991) 33 FCR 397, at 398, per curiam; Commonwealth v BIS Cleanaway Limited [2008] NSWCA 170, at [6], per Hodgson JA (with whom Ipp and Campbell JJA agreed).

THE CONSTRUCTION QUESTION

48 In view of this conclusion, it is not necessary to address the applicants’ contention that the primary Judge was incorrect in holding that the Tribunal had misconstrued s 96 of the Anti-Discrimination Act. However, since the matter is to be remitted to the Tribunal, it is desirable to say something briefly about the debate on the question of construction.

The Legislation

49 Section 96 is in Part 9 of the Anti-Discrimination Act, which deals with the functions of the President, the Tribunal and the ADB. Section 96(1) provides as follows:

“A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A(1) … may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.”

50 A complaint that a person has contravened a provision of the Anti-Discrimination Act may be made, inter alia, by a person on his or her own behalf or on behalf of other persons: ss 87A(1)(a)(ii), 87B. A “vilification complaint” (including a complaint in respect of a contravention of s 20C) cannot be made unless each person on whose behalf the complaint is made has or claims to have the characteristic that was the ground for the conduct that constitutes the alleged contravention: s 88. A complaint must be in writing and lodged with the President, but does not have to take any particular form: ss 89(1), 89A(1).

51 The President, having accepted a complaint (s 89B), must investigate the complaint: s 90(1). Section 92 provides that the President may decline a complaint in the course of the investigation. Section 92(1) provides as follows:

“If at any stage of the President’s investigation of a complaint:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.”

52 If the President declines a complaint under s 92, the complainant may require the President to refer the complaint to the Tribunal: s 93A. Section 96 imposes the leave requirement in such a case.

53 Section 102 provides that the Tribunal may, at any stage in the proceedings, dismiss the whole or any part of the complaint on a ground on which the President may decline a complaint under s 92(1)(a)(i) or (ii) or (b). Unlike the leave requirement in s 96, s 102 is not confined to a complaint referred to the Tribunal under s 93A.

54 Section 108(1) provides that the Tribunal may dismiss the complaint in whole or part or find the complaint substantiated in whole or in part. If the Tribunal finds the complaint to be substantiated, it may make a variety of orders. These include orders requiring the respondent to pay the complainant up to $40,000 in damages by way of compensation, directing the respondent to publish an apology in respect of the subject matter of the complaint and enjoining the respondent from repeating the unlawful conduct: s 108(2).

The Tribunal’s Analysis

55 As I have noted (at [24]) above, the Tribunal in the present case purported to construe s 96 in accordance with the approach adopted in Xu v Sydney West Area Health Service. In that case, Hennessy DP said (at [18]):

“The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.”

56 The Tribunal in the present case summarised (at [4]) Xu as standing for the proposition that an applicant must satisfy the Tribunal that there is a substantial reason for leave to be granted. However, it is one thing to say that leave should be granted when the applicant shows a substantial reason for taking that course. It may be another to say that the applicant cannot obtain leave unless he or she establishes a substantial reason for a grant of leave.

The Primary Judge’s Reasoning

57 The primary Judge pointed out (at [27]) that prior to the enactment of the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004, s 96 of the Anti Discrimination Act did not include a leave requirement. Her Honour also pointed out that s 96, in terms, gives the Tribunal an unfettered discretion to grant leave.

58 In her Honour’s view (at [13]), the discretion conferred by s 96 must be exercised having regard to the purpose of the legislative scheme. Moreover, the Tribunal should bear in mind (so her Honour said) that the refusal of leave will effectively determine finally the complainant’s rights under the statutory scheme. Her Honour considered, however, that any gloss on the statutory formula in s 96 should be avoided. She followed the approach of Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524, at 531-532, in relation to a different statutory leave requirement, that it would be a “gloss” on the statute to require something other than a determination that it would be “fair and just” to grant leave in the particular circumstances of the case.

59 The primary Judge concluded (at [40]) that the Tribunal had erred:

Salido

A Need for Care

60 The parties did not disagree as to the proper construction of s 96. Mr Beech-Jones accepted that the Tribunal should not add a gloss to the language of s 96 and that the approach taken in Salido provided guidance in construing the language. He also accepted (and the written submissions of Mr Batley for Mr Ekermawi did not suggest otherwise) that the criteria laid down in s 92(1)(a) of the Anti-Discrimination Act were relevant to the exercise of the discretion conferred by s 96, although not necessarily determinative of the leave application under that section.

61 Mr Beech-Jones’ submission was that the Tribunal’s requirement that the complainant demonstrate a “substantial reason” for the grant of leave did not depart from the approach in Salido. Properly construed, so he argued, the Tribunal was not requiring that the complainant to demonstrate a “large or weighty” reason for the grant of leave. Rather the Tribunal was requiring merely “a reason of substance, as distinct from some ephemeral or nominal reason”. According to Mr Beech-Jones, there is really no difference between a test requiring a complainant to demonstrate a substantial reason for the grant of leave and one that requires the complainant to show that it is “fair and just” that leave should be granted.

62 Since the matter is to return to the Tribunal, and since the parties do not disagree as to the construction of s 96, there is little point in parsing the Tribunal’s reasons in the present case to determine whether or not it was truly adding a gloss to the words of the statute. It is enough to say that care should be taken not to use language that might be interpreted as altering the “meaning and effect” of the statutory criterion: cf Salido, at 532, per Gleeson CJ. Otherwise, there is a risk that the reasons will invite a challenge on the ground that the Tribunal has departed from the proper construction of the section.

CONCLUSION

63 I would grant the application for leave to appeal, but dismiss the appeal. The applicants must pay Mr Ekermawi’s costs of the application for leave to appeal and of the appeal.

**********

07/12/2009 - Number of pages removed from coversheet - Paragraph(s) Coversheet

Actions

Download as PDF Download as Word Document

Citations

Jones & Anor v Ekermawi [2009] NSWCA 388

Most Recent Citation

Happy Haven OSHC Pty Ltd v Education and Early Childhood Services Registration and Standards Board of South Australia [2024] SADC 146

Cases Citing This Decision

169

Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436

Choi v NSW Ombudsman [2022] NSWSC 1681

Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401

Cases Cited

13

Statutory Material Cited

5

Ekermawi v Jones [2008] NSWADT 93

Deva v University of Western Sydney [2008] NSWCA 137

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

CITATION:	Jones & Anor v Ekermawi [2009] NSWCA 388 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 November 2009
JUDGMENT DATE:	7 December 2009
JUDGMENT OF:	McColl JA at 1; Handley AJA at 2; Sackville AJA at 3
DECISION:	1. Grant the application for leave to appeal 2. Dismiss the appeal 3. The applicants must pay Mr Ekermawi’s costs of the application for leave to appeal and of the appeal
CATCHWORDS:	ADMINISTRATIVE LAW - procedural fairness - application in the Administrative Decisions Tribunal for leave to proceed with complaint of racial vilification - misunderstanding of Tribunal's decision by complainant - whether Tribunal denied complainant procedural fairness
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997, s 73 Anti Discrimination Act 1977, ss 20C, 87A, 87B, 88, 89, 89A, 90, 92, 93A, 96, 102, 108 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Consumer, Trader and Tenancy Tribunal Act 2001, s 35 Supreme Court Act 1970, ss 69, 101(2)(r)
CATEGORY:	Principal judgment
CASES CITED:	Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1 Collection House Ltd v Taylor [2004] VSC 49 Commonwealth v BIS Cleanaway Limited [2008] NSWCA 170 Décor Corporation Pty Ltd v Dart Industrial Inc (1991) 33 FCR 397 Deva v University of Western Sydney [2008] NSWCA 137 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Ekermawi v Jones [2008] NSWADT 93 Italiano v Carbone [2005] NSWCA 177 Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 Salido v Nominal Defendant (1993) 32 NSWLR 524 Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295 Xu v Sydney West Area Health Service [2006] NSWADT 3
PARTIES:	Alan Jones (First Applicant) Harbour Radio Pty Ltd (Second Applicant) Sam Ekermawi (Respondent)
FILE NUMBER(S):	CA 40186/09
COUNSEL:	R Beech-Jones SC and R Graycar (Applicants) P Batley (Respondent)
SOLICITORS:	Baker & McKenzie (Applicants) Legal Aid Commission of NSW (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30044/08
LOWER COURT JUDICIAL OFFICER:	Schmidt AJ
LOWER COURT DATE OF DECISION:	20 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143