Margan v Manias

Case [2015] NSWCA 388

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Margan v Manias [2015] NSWCA 388
Hearing dates:13 November 2015
Decision date: 07 December 2015
Before: Macfarlan JA at [1];
Gleeson JA at [2];
Tobias AJA at [101]
Decision:

1.   Grant leave to appeal.

 2.   Appeal dismissed.
Catchwords: HUMAN RIGHTS – discrimination – homosexual vilification – two public acts – verbal conduct and later physical assault several days apart – whether ordinary member of the class to whom the later public act is directed assumed to have knowledge of the earlier public act – whether such an assumption required as a matter of law by ss 49ZS and 49ZT of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW) ss 113,119
Anti-Discrimination Act 1977 (NSW) ss 49ZS, 49ZT, 49ZTA
Civil and Administrative Tribunal Act 2013 (NSW) ss 7, 83(1)
Civil and Administrative Tribunal Amendment Act 2013 (NSW) s 2(2), Sch 2
Interpretation Act 1987 (NSW) ss 8, 33
Supreme Court Act 1970 (NSW) ss 65, 69
Cases Cited: Burns v Laws (No 2) [2007] NSWADT 47
Burns v Sunol [2012] NSWADT 246
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207
Collier v Sunol [2005] NSWADT 261
JM and JN v QL and QM [2010] NSWADT 66
Jones v Trad [2013] NSWCA 389; 86 NSWLR 241
Kelly v The Queen [2004] HCA 12; 218 CLR 216
Lloyd v Veterinarian Surgeons Investigating Committee [2005] NSWCA 456; 65 NSWLR 245
Margan v Manias [2013] NSWADT 177
Margan v Manias [2014] NSWCATAP 16
Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128
Category:Principal judgment
Parties: Simon Margan (Appellant)
Danny Manias (Respondent)
Representation:

Counsel:
G Curtin SC / J Mack (Appellant)
No appearance (Respondent)
V McWilliam / F St John (Amicus Curiae)

  Solicitors:
Appellant (Self-represented)
No appearance (Respondent)
File Number(s):2015/103516
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law
Citation:
Margan v Manias [2015] NSWSC 307
Date of Decision:
26 March 2015
Before:
Hall J
File Number(s):
2014/170411

Judgment

  1. MACFARLAN JA: I agree with Gleeson JA.

  2. GLEESON JA: This appeal concerns the construction and application of the homosexual vilification provisions in the Anti-Discrimination Act 1977 (NSW) (the Act).

  3. In August 2010 the appellant, Mr Margan, was the victim of two incidents several days apart during which the respondent, Mr Manias, first verbally abused and later physically attacked him. Mr Margan made a complaint to the Anti-Discrimination Board alleging that the conduct of Mr Manias constituted both unlawful homosexual vilification and serious homosexual vilification for the purposes of ss 49ZT and 49ZTA of the Act. Those sections make conduct of that kind unlawful.

  4. The first incident occurred in the week prior to 9 August 2010 when Mr Margan was in Oxford Street, Darlinghurst, putting up same-sex marriage posters along Oxford Street. Mr Manias appeared to be following Mr Margan and appeared…

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AGLC
Margan v Manias [2015] NSWCA 388
Case
[2015] NSWCA 388
Decision Date

CaseChat Overview and Summary

The case of *Margan v Manias* concerned an appeal to the New South Wales Court of Appeal regarding allegations of homosexual vilification under the *Anti-Discrimination Act 1977* (NSW). The appellant, Mr. Margan, alleged that the respondent, Mr. Manias, engaged in two public acts of vilification directed at him due to his homosexuality. The first act involved verbal conduct, and the second, occurring several days later, was a physical assault.

The central legal issue before the Court of Appeal was whether, for the purposes of establishing homosexual vilification under sections 49ZS and 49ZT of the Act, an ordinary member of the class to whom the later public act (the physical assault) was directed could be assumed, as a matter of law, to have knowledge of the earlier public act (the verbal conduct).

The Court of Appeal considered the wording of the relevant sections of the *Anti-Discrimination Act 1977* (NSW). It reasoned that the Act did not mandate an assumption that a person experiencing a later public act of vilification would necessarily be aware of a prior, distinct public act. The Court concluded that the two acts, while both potentially constituting vilification, were separate events and that knowledge of the first was not legally presumed in relation to the second. Consequently, the appeal was dismissed.

Orders

Orders of the court

1. Grant leave to appeal.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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