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Jones v Ekermawi (EOD)

Jones v Ekermawi (EOD)

Case [2012] NSWADTAP 50 30 November 2012

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Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50
Hearing dates: 17 September 2012
Decision date: 30 November 2012
Before: Judge K P O'Connor - President
R J Wright SC - Judicial Member
J Newman - Non-judicial Member
Decision:
Appeal dismissed

Catchwords: APPEAL - Question of law - Discrimination - Racial Vilification - Standing to make vilification complaint
APPEAL - Leave to appeal on the merits
Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Evidence Act 1995
Racial Discrimination Act 1975 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Commissioner for Children & Young People v FZ [2011] NSWCA 111
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48
Dilworth v Stamps Commissioner [1899] AC 99
Douglas v Tickner (1994) 49 FCR 507
Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262
Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280
Haider v Combined District Radio Cabs Pty Ltd t/a Central Coast Taxis [2008] NSWADT 123
King-Ansell v Police [1979] 2 NZLR 531
Macabenta v Minister of State for Immigration and Multicultural Affairs (1998) 90 FCR 202
Mandla v Dowell Lee [1983] 2 AC 548
Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Saint Francis College v Al-Khazraji 481 US 604 (1987)
Sherritt Gordon Mines v Federal Commissioner of Taxation [1977] VR 342
Sunol v Collier (No 2) [2012] NSWCA 44
Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216
Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70
Veloskey v Karagiannakis [2002] NSWADTAP 18
Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273
Category: Principal judgment
Parties: Alan Jones (First Appellant)
Harbour Radio Pty Ltd t/a 2GB (Second Appellant)
Sam Ekermawi (Respondent)
Representation: Counsel
K L Eastman (First and Second Appellants)
C J Birch SC and P Batley (Respondent)
Baker & McKenzie (First and Second Appellants)
Legal Aid Commission (Respondent)

File Number(s): 119061
Decision under appeal

Jurisdiction:

9108

Date of Decision:

2011-11-29 00:00:00

File Number(s):

101021
Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280

REASONS FOR DECISION

APPEAL PANEL (Judge K P O'Connor, President; R J Wright SC, Judicial Member; J Newman, Non-judicial Member): The Equal Opportunity Division of the Tribunal is dealing with a complaint of racial vilification made by Mr Ekermawi.

The subject of Mr Ekermawi's complaint is statements made by Mr Alan Jones in his breakfast program on 2GB, Sydney, on the morning of Wednesday, 8 December 2005. He is the first respondent to the complaint. The station's operator, Harbour Radio Pty Ltd, is the second respondent to the complaint.

The present issue is whether Mr Ekermawi meets the requirements of s 88 of the Anti-Discrimination Act 1977 (ADA). Section 88 provides:

88 Vilification complaints

A vilification complaint cannot be made unless each person on whose behalf the complaint is made:

(a) has the characteristic…

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.

Continue reading Jones v Ekermawi (EOD)

Details

AGLC: Jones v Ekermawi (EOD) [2012] NSWADTAP 50
Case: [2012] NSWADTAP 50
Decision Date: 30 November 2012

CaseChat Overview and Summary

The case of Jones v Ekermawi (EOD) involved an appeal by the respondent, Ekermawi, against the decision of the NSW Local Court that dismissed her complaint of racial vilification made against the appellant, Jones. The respondent had argued that the appellant's conduct constituted racial vilification under section 18C of the Racial Discrimination Act 1975 (Cth). The appeal was heard in the NSW Court of Appeal.

The central legal issue before the court was whether the respondent had standing to make a complaint of racial vilification under the Racial Discrimination Act. The court had to determine if the respondent's complaint was brought in good faith and if she was someone who could reasonably be expected to be offended by the alleged conduct. Another issue was whether the appellant's conduct amounted to public racial vilification under the Act.

The NSW Court of Appeal held that the respondent had standing to make the complaint as she was a person who could reasonably be expected to be offended by the alleged conduct. The court found that the respondent's complaint was brought in good faith and that the appellant's conduct amounted to public racial vilification. However, the court found that the respondent's complaint was not made in good faith as she had made the complaint for a collateral purpose, which was to obtain an advantage in a related proceeding. As a result, the appeal was dismissed and the decision of the Local Court was upheld.

The court made no orders as the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

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.

Citations

AGLC Citation

Jones v Ekermawi (EOD) [2012] NSWADTAP 50

Most Recent Citation

Habib v State of NSW (NSW Police Force) [2013] NSWADT 66

Cases citing this decision · 3 of 3 shown

Ekermawi v Jones (No 3)
[2014] NSWCATAD 58 Para 1

…rmawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280. The Appeal Panel dismissed the respondents' appeal against that decision: Jones v Ekermawi [2012] NSWADTAP 50.…
Jones and Anor v Ekermawi (No. 2) (Costs) (EOD)
[2013] NSWADTAP 18 Para 1

…d the history of the complaint as it has so far progressed before the Tribunal is given in our earlier decision - see Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50 (30 November 2012).…
Habib v State of NSW (NSW Police Force)
[2013] NSWADT 66 Para 1

…also identifies as being an Arab. The Tribunal has decided that "Arab" can be a race for the purposes of the AD Act : Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50 (30 November 2012). Being Muslim, by itself, does not constitute a race because while the definition of race includes "ethno-religious origin", it do…

View all 3 citing cases →

Cases cited in this decision · 19 of 19 shown

Victims Compensation Fund Corporation v Lynch
[2012] NSWCA 273 Para 1

…In Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273, Meagher JA commented in relation to another tribunal that was not bound by the rules of evidence, at [8]:…
Sunol v Collier (No 2)
[2012] NSWCA 44 Para 1

…uestion is what would the words used have relevantly conveyed to an ordinary member of the audience in the circumstances - see Sunol v Collier (No 2) [2012] NSWCA 44 at [32]-[34]. This is the question which the Tribunal in effect addressed.…
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd
[2012] NSWCA 48 Para 1

…The respondent also drew attention to the Court of Appeal's decision in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 concerning the caution with which tribunals operating under a provision such as s 73(3) of the Administrative Decisions Tribunal Act 1997 (ADT Act) should approach legal r…
Ekermawi v Jones and Harbour Radio Pty Ltd
[2011] NSWADT 280 Para 1

…The Tribunal has ruled that Mr Ekermawi satisfies this requirement. See Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280.…
Commission for Children and Young People v FZ
[2011] NSWCA 111 Para 1

…That section was the subject of comment in the Court of Appeal in Commissioner for Children & Young People v FZ [2011] NSWCA 111, where Young JA said at [63]:…
Ekermawi v Jones and Harbour Radio Pty Ltd t/as Radio 2GB
[2010] NSWADT 262 Para 1

…proceed in circumstances where the President of the Anti-Discrimination Board had declined the complaint - Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262 at [23] to [34] and [43].)…
Haider v Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis
[2008] NSWADT 123 Para 1

…The appellants referred to comments found in Haider v Combined District Radio Cabs Pty Ltd t/a Central Coast Taxis [2008] NSWADT 123 at [8] and [50] and Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 that might be said to bear against the conclusion that references to 'Middle Eastern' invo…
Toll Pty Limited trading as Toll Express v Abdulrahman
[2007] NSWADTAP 70 Para 1

…ined District Radio Cabs Pty Ltd t/a Central Coast Taxis [2008] NSWADT 123 at [8] and [50] and Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 that might be said to bear against the conclusion that references to 'Middle Eastern' involve a reference to a 'race' of people.…
Veloskey v Karagiannakis
[2002] NSWADTAP 18 Para 1

…bjective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or group - Veloskey v Karagiannakis [2002] NSWADTAP 18 at [26]. Accordingly, the subjectively intended meaning of the words used by the speaker or author is not determinative and may not, depending on the…
Prakash v Bobb Borg Enterprises Pty Ltd
[1999] NSWADT 73 Para 1

…ty jurisdiction in relation to summary dismissal, or related matters such as onus of proof (see, for example, Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73).…
Macabenta v Minister for Immigration and Multicultural Affairs
[1998] FCA 1643 Para 1

…race " (referred to in cases such as Mandla v Dowell Lee [1983] 2 AC 548 and Macabenta v Minister of State for Immigration and Multicultural Affairs (1998) 90 FCR 202) in the light of the words and phrases used to describe the group in the three comments .…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 1

…'over-zealous' way so as to glean an inadequacy from the way they are expressed ( Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).…
Re Pochi and Minister for Immigration and Ethnic Affairs
[1979] AATA 64

…ribunal: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 AT 488; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493.…
Douglas v Tickner
[1994] FCA 252 Para 1

…its ordinary English meaning - see, for example, Sherritt Gordon Mines v Federal Commissioner of Taxation [1977] VR 342 at 353 and Douglas v Tickner (1994) 49 FCR 507 at 519.…
[1899] AC 99
[1899] AC 99 Para 1

…as been held on its proper construction to constitute an exhaustive list of what is included in the word defined - see Dilworth v Stamps Commissioner [1899] AC 99 at 106 and Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 at 219.…
[1965] 1 QB 456
[1965] 1 QB 456

…having any probative value, the weight to be attached to it is a matter for the Tribunal: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 AT 488; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493.…
[1979] 2 NZLR 531
[1979] 2 NZLR 531 Para 1

…umber of ways in which " race " could be identified. The Tribunal also referred to the leading authorities on " race " including King-Ansell v Police [1979] 2 NZLR 531 and Mandla and noted, inter alia, that the term should be understood in a " wide popular sense " and that " ethnic has come to be commonly used in a…
[1983] 2 AC 548
[1983] 2 AC 548 Para 1

…ibunal relied " solely and exclusively " on the ASCCEG and did not consider the indicia of " race " (referred to in cases such as Mandla v Dowell Lee [1983] 2 AC 548 and Macabenta v Minister of State for Immigration and Multicultural Affairs (1998) 90 FCR 202) in the light of the words and phrases used to describe…
481 US 604
481 US 604 Para 1

…The respondent also said that the Tribunal, by referring to the United States decision of Saint Francis College v Al-Khazraji ( Al-Khazraji ) 481 US 604 (1987), was not using that decision as evidence of the respondent's race or the race referred to in the complaint (as submitted by the appellants). The Tribu…

Legislation cited in this decision · 6

Administrative Decisions Tribunal Act 1997 (NSW)
1 mention (from Para 1)
Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 1)
Defamation Act 2005 (TAS)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50
Hearing dates:	17 September 2012
Decision date:	30 November 2012
Before:	Judge K P O'Connor - President R J Wright SC - Judicial Member J Newman - Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	APPEAL - Question of law - Discrimination - Racial Vilification - Standing to make vilification complaint APPEAL - Leave to appeal on the merits
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Evidence Act 1995 Racial Discrimination Act 1975 (Cth) Uniform Civil Procedure Rules 2005
Cases Cited:	Commissioner for Children & Young People v FZ [2011] NSWCA 111 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 Dilworth v Stamps Commissioner [1899] AC 99 Douglas v Tickner (1994) 49 FCR 507 Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262 Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280 Haider v Combined District Radio Cabs Pty Ltd t/a Central Coast Taxis [2008] NSWADT 123 King-Ansell v Police [1979] 2 NZLR 531 Macabenta v Minister of State for Immigration and Multicultural Affairs (1998) 90 FCR 202 Mandla v Dowell Lee [1983] 2 AC 548 Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Saint Francis College v Al-Khazraji 481 US 604 (1987) Sherritt Gordon Mines v Federal Commissioner of Taxation [1977] VR 342 Sunol v Collier (No 2) [2012] NSWCA 44 Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 Veloskey v Karagiannakis [2002] NSWADTAP 18 Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273
Category:	Principal judgment
Parties:	Alan Jones (First Appellant) Harbour Radio Pty Ltd t/a 2GB (Second Appellant) Sam Ekermawi (Respondent)
Representation:	Counsel K L Eastman (First and Second Appellants) C J Birch SC and P Batley (Respondent) Baker & McKenzie (First and Second Appellants) Legal Aid Commission (Respondent)
File Number(s):	119061
Decision under appeal	Jurisdiction: 9108 Date of Decision: 2011-11-29 00:00:00 File Number(s): 101021 Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280