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Margan v Manias

Margan v Manias

Case [2013] NSWADT 177 7 August 2013

Unlawful Vilification

Homosexual Vilification

Compensatory Damages

Apology Publication

Anti-Discrimination Law

Human Rights Law

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Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Margan v Manias [2013] NSWADT 177
Hearing dates: 3 July 2013
Decision date: 07 August 2013
Jurisdiction: Equal Opportunity Division
Before: M Chesterman, Deputy President
J Newman, Non-judicial Member
P Smith, Non-judicial Member
Decision:
1. The complaint of unlawful homosexual vilification is substantiated with regard to statements uttered by the Respondent in Oxford Street, Darlinghurst, during the period between 2 and 8 August 2010 and reproduced in paragraph [48] of this decision.
2. The Respondent is to pay to the Applicant the sum of $1,000 as compensation for the harm caused to him by the publication of these statements.
3. Within twenty-eight (28) days of the date of this decision, the Respondent is to procure, at his expense, the publication of the following apology as a quarter-page advertisement in the Sydney Star Observer:
This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 7 August 2013.
On a date between 2 and 8 August 2010, I uttered statements in Oxford Street, Darlinghurst, concerning homosexual men.
On 7 August 2013, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of homosexual men on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest.
I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexual men in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

Catchwords: Vilification on ground of homosexuality - meaning of 'incitement' - remedies
Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Cases Cited: Collier v Sunol [2005] NSWADT 261
JM & JN v QL & QM [2010] NSWADT 66
Sunol v Collier (No 2) [2013] NSWCA 196
Category: Principal judgment
Parties: Simon Margan (Applicant)
Danny Manias (Respondent)
Representation: In person (Applicant)
No appearance (Respondent)

File Number(s): 111101
Publication restriction: The address and other contact details of the Applicant are not to be published

reasons for decision

Procedural history

This decision concerns a complaint by the Applicant, Simon Margan, that on and shortly before 9 August 2010 the Respondent, Danny Manias, engaged in conduct amounting to unlawful vilification on the ground of homosexuality.

On 6 August 2011, Mr Margan complained about this conduct to the Anti-Discrimination Board ('the Board'). In his complaint, he alleged that it amounted both to unlawful homosexual vilification under section 49ZT of the Anti-Discrimination Act 1977 ('the Act') and to the offence of serious homosexual vilification under section 49ZTA. On 25 August 2011, he sent further information to the Board regarding his allegations.

On 31 August 2011, the President of the Board advised Mr Margan…

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 Margan v Manias

Details

AGLC: Margan v Manias [2013] NSWADT 177
Case: [2013] NSWADT 177
Decision Date: 07 August 2013

CaseChat Overview and Summary

The case of Margan v Manias involved a dispute between the parties concerning alleged vilification based on homosexuality. The matter was heard and determined by the Administrative Decisions Tribunal of New South Wales. The Applicant, Margan, alleged that the Respondent, Manias, made defamatory statements about homosexual men in Oxford Street, Darlinghurst, between 2 and 8 August 2010. Margan sought a determination that these statements constituted unlawful vilification under the Anti-Discrimination Act 1977 (NSW), along with compensation for harm and an order for an apology to be published.

The legal issues central to this case were whether the statements made by Manias constituted vilification, as defined by the Anti-Discrimination Act 1977, and if so, whether these statements incited hatred or serious contempt of homosexual men on the ground of their homosexuality. Additionally, the court needed to determine whether Manias's statements were published reasonably and in good faith for purposes in the public interest, which could potentially exempt them from being classified as vilification. The determination of these issues required an analysis of the content and context of the statements, as well as their potential impact on the targeted group.

The Tribunal found that the statements made by Manias were indeed capable of inciting hatred or serious contempt of homosexual men based on their homosexuality. It was held that the statements were not published reasonably and in good faith for purposes in the public interest. Consequently, the Tribunal concluded that the statements amounted to unlawful vilification. The Tribunal ordered that Manias pay Margan $1,000 as compensation and publish an apology as specified in the Tribunal's decision. This ruling underscores the importance of promoting tolerance and understanding within the community and sets a precedent for the enforcement of anti-discrimination laws in similar cases.

In summary, the Tribunal substantiated the complaint of unlawful homosexual vilification against Manias, ordered the payment of compensation, and mandated the publication of an apology. This decision reinforces the legislative intent to prevent vilification based on sexual orientation and to hold individuals accountable for their actions under the Anti-Discrimination Act 1977.

Orders

Orders of the court

1. The complaint of unlawful homosexual vilification is substantiated with regard to statements uttered by the Respondent in Oxford Street, Darlinghurst, during the period between 2 and 8 August 2010 and reproduced in paragraph [48] of this decision.

2. The Respondent is to pay to the Applicant the sum of $1,000 as compensation for the harm caused to him by the publication of these statements.

3. Within twenty-eight (28) days of the date of this decision, the Respondent is to procure, at his expense, the publication of the following apology as a quarter-page advertisement in the Sydney Star Observer:

This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 7 August 2013.

On a date between 2 and 8 August 2010, I uttered statements in Oxford Street, Darlinghurst, concerning homosexual men.

On 7 August 2013, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of homosexual men on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexual men in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

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

Margan v Manias [2013] NSWADT 177

Most Recent Citation

Margan v Taufaao [2017] NSWCATAD 216

Cases citing this decision · 4 of 4 shown

Lamb v Campbell
[2021] NSWCATAD 103 Para 27

…In Margan the Tribunal at first instance found Mr Manias’ conduct was unlawful vilification on the grounds of homosexuality (see Margan v Manias [2013] NSWADT 177 at [47]-[54]). This finding was not challenged on appeal and the Court of Appeal assumed the correctness of the original finding.…
Margan v Taufaao
[2017] NSWCATAD 216 Para 85

…In Margan v Manias [2013] NSWADT 177, the Tribunal adopted the approach of the court of Appeal in Sunol v Collier (No 2) [2012] NSWCA 44 at paras [25]- [34], Bathurst CJ about the construction of section 49ZT in relation to written material placed on the internet.…
Margan v Manias
[2015] NSWCA 388 Para 17

…onstituted unlawful homosexual vilification in breach of s 49ZT, but that the second incident involving the physical conduct did not: Margan v Manias [2013] NSWADT 177. The Tribunal rejected Mr Margan’s contention that the verbal conduct and the physical conduct should together be regarded as one “public act” for th…
Margan v Manias
[2014] NSWSC 889 Para 1

…ative Decisions Tribunal ( Margan v Manias [2014] NSWCATAP 16) which dismissed an appeal from the Administrative Decisions Tribunal ( Margan v Manias [2013] NSWADT 177). The proceedings in that Tribunal concerned a complaint by the Plaintiff that the Defendant engaged in conduct amounting to unlawful vilification on…

View all 4 citing cases →

Cases cited in this decision · 19 of 19 shown

Sunol v Collier (No 2)
[2013] NSWCA 196 Para 1

…an, in formulating his submissions, had not taken account of a recent decision of significance for his case. In this decision, Sunol v Collier (No 2) [2013] NSWCA 196, the Court of Appeal stated a number of important principles relating to the interpretation of section 49ZT of the Act. We therefore gave leave to hi…
Burns v Sunol
[2012] NSWADT 246 Para 1

…ration, it is also appropriate that only a modest sum be awarded. In so ruling, we take account of principles stated by the Tribunal in Burns v Sunol [2012] NSWADT 246 at [112 - 118].…
Burns v Cunningham
[2011] NSWADT 240 Para 24

…airfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69].…
JM and JN v QL and QM
[2010] NSWADT 66 Para 1

…Mr Margan acknowledged, however, that in a recent homosexual vilification case, JM & JN v QL & QM [2010] NSWADT 66, the Tribunal treated as separate 'public acts' each of a series of alleged incidents in which the two respondents (or, in some instances, one of them) made loud derogatory comments about the applicant…
Burns v Laws (No 2)
[2007] NSWADT 47 Para 1

…A somewhat different approach to the term 'incite' was taken in a Tribunal decision, Burns v Laws (No 2) [2007] NSWADT 47, to which the Chief Justice referred. At [110 - 112], the Tribunal said:-…
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc
[2006] VSCA 284 Para 14

…anti-discrimination legislation: Catch the Fire Ministries supra [ Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [ 2006] VSCA 284; (2006) 15 VR 207] at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] N…
Collier v Sunol
[2005] NSWADT 261 Para 1

…decisions on similar facts can never be regarded as binding. They can only provide guidance, at most. But it is worth noting that in Collier v Sunol [2005] NSWADT 261 the Tribunal held that each of two similarly brief statements, published separately on the internet, involved incitement falling within section 49ZT(…
John Fairfax Publications Pty Ltd v Kazak
[2002] NSWADTAP 35 Para 10

…unal has consistently held that intention is not an element of a contravention of this or related sections: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69].…
R v Eade
[2002] NSWCCA 257

…JA, with whom Winneke P and Batt JA agreed, said at 555 that the word covered words which command, request, propose, advise or encourage. In R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390, Smart AJ (at [59]) cited what was said by both Stout CJ and Brooking JA with approval.…
Veloskey v Karagiannakis
[2002] NSWADTAP 18 Para 19

…5 VR 207] at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102].…
Burns v Dye
[2002] NSWADT 32 Para 23

…Council of Victoria Inc [ 2006] VSCA 284; (2006) 15 VR 207] at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102].…
Kazak v John Fairfax Publications Limited
[2000] NSWADT 77 Para 23

…atch the Fire Ministries Inc v Islamic Council of Victoria Inc [ 2006] VSCA 284; (2006) 15 VR 207] at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102].…
Amalgamated Television Services v Marsden
[1999] NSWCA 319

…has been consistently adopted by the Tribunal, following the test set out by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that "the ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, n…
R v Massie
[1998] VSCA 82

…sist constables, Stout CJ described the word as meaning "to rouse, to stimulate, to urge, to spur on, to stir up, to animate" (at 854). In R v Massie [1998] VSCA 82; [1999] 1 VR 542, Brooking JA, with whom Winneke P and Batt JA agreed, said at 555 that the word covered words which command, request, propose, advis…
Amalgamated Television Services Pty Ltd v Marsden
[1998] NSWCA 13

…first of the three alternatives is the one which has been consistently adopted by the Tribunal, following the test set out by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that "the ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicio…
Waters v Public Transport Corporation
[1992] HCA 9

…ithout finally deciding the issue. It is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments:…
Waters v Public Transport Corporation
[1991] HCA 49

…on this basis without finally deciding the issue. It is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments:…
[1969] 2 QB 58
[1969] 2 QB 58

…for a person in fact to be incited by the words or publication: R v Eade supra at [60]; R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62; Veloskey v Karagiannakis supra at [25]; Catch the Fire Ministries Inc supra at [14].…
Young v Cassells
(1914) 33 NZLR 852

…n considered both in the context of anti-discrimination legislation and in the context of criminal offences involving incitement. In Young v Cassells (1914) 33 NZLR 852, a case concerning the charge of inciting persons to resist constables, Stout CJ described the word as meaning "to rouse, to stimulate, to urge, to s…

Legislation cited in this decision · 3

Administrative Decisions Tribunal Act 1997 (NSW)
1 mention (from Para 1)
Anti-Discrimination Act 1977 (NSW)
1 mention
Defamation Act 2005 (TAS)
1 mention

Medium Neutral Citation:	Margan v Manias [2013] NSWADT 177
Hearing dates:	3 July 2013
Decision date:	07 August 2013
Jurisdiction:	Equal Opportunity Division
Before:	M Chesterman, Deputy President J Newman, Non-judicial Member P Smith, Non-judicial Member
Decision:	1. The complaint of unlawful homosexual vilification is substantiated with regard to statements uttered by the Respondent in Oxford Street, Darlinghurst, during the period between 2 and 8 August 2010 and reproduced in paragraph [48] of this decision. 2. The Respondent is to pay to the Applicant the sum of $1,000 as compensation for the harm caused to him by the publication of these statements. 3. Within twenty-eight (28) days of the date of this decision, the Respondent is to procure, at his expense, the publication of the following apology as a quarter-page advertisement in the Sydney Star Observer: This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 7 August 2013. On a date between 2 and 8 August 2010, I uttered statements in Oxford Street, Darlinghurst, concerning homosexual men. On 7 August 2013, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of homosexual men on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest. I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexual men in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.
Catchwords:	Vilification on ground of homosexuality - meaning of 'incitement' - remedies
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Collier v Sunol [2005] NSWADT 261 JM & JN v QL & QM [2010] NSWADT 66 Sunol v Collier (No 2) [2013] NSWCA 196
Category:	Principal judgment
Parties:	Simon Margan (Applicant) Danny Manias (Respondent)
Representation:	In person (Applicant) No appearance (Respondent)
File Number(s):	111101
Publication restriction:	The address and other contact details of the Applicant are not to be published