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Leech v Sydney Water Corporation

Leech v Sydney Water Corporation

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CITATION: Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198

DIVISION: Equal Opportunity Division

PARTIES:
Applicant:
Sam Ekermawi
Respondent (file 061083):
Harbour Radio Pty Ltd
First Respondent (files 071003, 071004):
Nine Network Australia Pty Ltd
Second Respondent (files 071003, 071004):
Harbour Radio Pty Ltd

FILE NUMBER: 061083; 071003; 071004

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 21 July 2010

DATE OF DECISION:
4 August 2010

BEFORE: Chesterman M - Deputy President; Kelleghan D - Non-Judicial Member; Schneeweiss J - Non-Judicial Member

CATCHWORDS: Costs – equal opportunity – racial vilification

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

CASES CITED: AT v Commissioner of Police [2010] NSWCA 131
Comcare v Fiedler [2001] FCA 1810
Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226
Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351
Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145
Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334
Ekermawi v Nine Network Television Pty Ltd and anor [2007] NSWADT 295
Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335
Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263
Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548
Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71
Tu v University of Sydney (No 2) [2002] NSWADT 22

REPRESENTATION:
Applicant Representative:
In person
Respondents Representative:
A Stewart, solicitor

ORDERS: The Applicant is to pay the Respondents’ costs of these proceedings incurred after 9 November 2009, as agreed or assessed.

REASONS FOR DECISION

Introduction

1 These three Tribunal matters, which were heard in conjunction, concerned complaints made by the Applicant, Mr Sam Ekermawi, under the Anti-Discrimination Act 1977 (‘the AD Act’) against two Respondents, Harbour Radio Pty Ltd and Nine Network Australia Pty Ltd. The grounds of his complaints were that the Respondents, by broadcasting certain statements in radio or television programs within New South Wales during July and August 2005, contravened the provisions against racial vilification contained in section 20C of this Act.

2 The hearing of the complaints before us took place on 31 November, 1 December and 2 December 2009. At the conclusion, we gave directions for the filing of supplementary submissions.

3 In a decision delivered on 10 June 2010 (Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 – hereafter ‘the principal decision’), we dismissed Mr Ekermawi’s complaints.

4 In this decision at [75], we noted that the Respondents, if successful, wished to be heard on the matter of costs. We gave directions for submissions on this matter to be filed and served and indicated that we would determine this matter ‘on the papers’, pursuant to section 76 of the Administrative Decisions…

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 198
Decision Date: 4 August 2010

CaseChat Overview and Summary

In Leech v Sydney Water Corporation, the applicant, Leech, brought a claim against Sydney Water Corporation, alleging racial vilification and discrimination in contravention of the Racial Discrimination Act 1975 (Cth). The case was heard in the Federal Circuit Court of Australia. Leech contended that the Corporation had failed to provide a work environment free from racial discrimination and vilification, and sought compensation and an apology.

The court was tasked with determining whether Leech had indeed experienced racial vilification and discrimination, and if the Corporation's conduct amounted to a breach of the Act. The court had to interpret the relevant provisions of the Act and examine the evidence presented by both parties. The key issue was whether Leech's complaints were sufficiently substantiated to warrant a finding in his favour, and whether the Corporation's actions could be considered discriminatory or vilifying under the Act.

The court found that Leech had not established his claims on the balance of probabilities. The evidence did not support the applicant's allegations to the requisite standard. Consequently, the court dismissed the application. Given the outcome, the court ordered that the applicant pay the respondents' costs of the proceedings incurred after 9 November 2009, as agreed or assessed.

Orders

Orders of the court

The Applicant is to pay the Respondents’ costs of these proceedings incurred after 9 November 2009, as agreed or assessed.

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:	Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Sam Ekermawi Respondent (file 061083): Harbour Radio Pty Ltd First Respondent (files 071003, 071004): Nine Network Australia Pty Ltd Second Respondent (files 071003, 071004): Harbour Radio Pty Ltd
FILE NUMBER:	061083; 071003; 071004
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	21 July 2010
DATE OF DECISION:	4 August 2010
BEFORE:	Chesterman M - Deputy President; Kelleghan D - Non-Judicial Member; Schneeweiss J - Non-Judicial Member
CATCHWORDS:	Costs – equal opportunity – racial vilification
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	AT v Commissioner of Police [2010] NSWCA 131 Comcare v Fiedler [2001] FCA 1810 Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226 Ekermawi v Fairfax Publications Pty Ltd [2008] NSWADT 351 Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334 Ekermawi v Nine Network Television Pty Ltd and anor [2007] NSWADT 295 Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 Lynch v Alan Hingston as trustee for the AP Family Trust trading as Grafton Sawmilling [2009] NSWADT 263 Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 Tu v University of Sydney (No 2) [2002] NSWADT 22
REPRESENTATION:	Applicant Representative: In person Respondents Representative: A Stewart, solicitor
ORDERS:	The Applicant is to pay the Respondents’ costs of these proceedings incurred after 9 November 2009, as agreed or assessed.