Ward JA at [1] Emmett JA at [148] Gleeson JA at [175]
Decision:
1. Appeal allowed.
2. Order 1 made by the Appeal Panel on 20 October 2012 dismissing the appeal by the appellants from the Tribunal's decision in relation to the Schedule A broadcast be set aside.
3. In lieu, uphold the appeal by each of the appellants from the Tribunal's decision in relation to the Schedule A broadcast; set aside that decision and remit the complaints made against each of the appellants in relation to the Schedule A broadcast to the Tribunal for determination in accordance with law.
4. Order the respondent to repay the sum of $10,000.
5. Direct the parties to file any brief written submission in relation to costs (and as to whether any part of the Court's reasons should be redacted on publication) within seven days, with a view to those submissions being dealt with on the papers.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
STATUTES - acts of parliament - interpretation - Anti-Discrimination Act 1977 s 20C - person who engaged in the 'public act' in context of a radio broadcast - whether error of law in failing to consider applicability of s 20C(2) separately in case of the radio station and radio presenter - whether error in consideration of capacity to 'incite' - whether race must be the sole or dominant ground for the incitement of the requisite emotion
ADMINISTRATIVE LAW - whether the Tribunal had power to order a change in policies that related to employees of the radio station that were not directly or indirectly involved in the conduct the subject of the dispute
APPEAL AND NEW TRIAL - where leave required for Appeal Panel to consider the merits - where Appeal Panel did not explicitly give leave to hear the matter on the merits on a critical issue - whether matter should be remitted to the Tribunal to be decided in accordance with law
[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 Trad
Sign in free to access the full text
Details
AGLC
Jones v Trad [2013] NSWCA 389
Case
[2013] NSWCA 389
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by Jones and others against a decision of an Appeal Panel, which had dismissed their appeal from a decision of the Tribunal. The dispute arose from a radio broadcast and complaints made under the *Anti-Discrimination Act 1977* (NSW). The core of the matter involved allegations of racial vilification during a radio program.
The Court of Appeal was required to determine several legal issues. These included whether the Appeal Panel erred in law by failing to consider the applicability of section 20C(2) of the *Anti-Discrimination Act 1977* separately for the radio station and the radio presenter. Further questions arose regarding the Appeal Panel's consideration of the capacity to "incite" racial hatred and whether race needed to be the sole or dominant ground for the incitement of the requisite emotion. Additionally, the Court considered whether the Tribunal had the power to order changes to policies affecting employees not directly involved in the conduct under dispute.
The Court found that the Appeal Panel had made errors of law. Specifically, it was held that the Appeal Panel had not properly considered the distinct roles of the radio station and the presenter in relation to section 20C(2) and had erred in its interpretation of the term "incite" and the requirement for race to be the dominant ground. The Court also noted that the Appeal Panel had not explicitly granted leave to consider the merits of a critical issue. Consequently, the Court allowed the appeal, set aside the Appeal Panel's order dismissing the appeal from the Tribunal's decision regarding the broadcast, and remitted the complaints to the Tribunal for redetermination in accordance with the law. The respondent was also ordered to repay $10,000.
Orders
Orders of the court
1. Appeal allowed.
2. Order 1 made by the Appeal Panel on 20 October 2012 dismissing the appeal by the appellants from the Tribunal's decision in relation to the Schedule A broadcast be set aside.
3. In lieu, uphold the appeal by each of the appellants from the Tribunal's decision in relation to the Schedule A broadcast; set aside that decision and remit the complaints made against each of the appellants in relation to the Schedule A broadcast to the Tribunal for determination in accordance with law.
4. Order the respondent to repay the sum of $10,000.
5. Direct the parties to file any brief written submission in relation to costs (and as to whether any part of the Court's reasons should be redacted on publication) within seven days, with a view to those submissions being dealt with on the papers.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]