Radio 2UE Sydney Pty Ltd v Burns - [2004] NSWADTAP 53

Appeal Panel - Internal

CITATION: Radio 2UE Sydney Pty Ltd & Ors v Burns [2004] NSWADTAP 53

PARTIES: APPELLANTS
Radio 2UE Sydney Pty Ltd, Steve Price and John Laws
RESPONDENT
Gary Burns
RESPONDENT
Gary Burns

FILE NUMBER: 049049

HEARING DATES: 14/12/2004

SUBMISSIONS CLOSED: 12/14/2004

DATE OF DECISION:
12/17/2004

DECISION UNDER APPEAL:
Burns v Radio 2UE Sydney Pty Ltd & ors [2004] NSWADT267

BEFORE: O'Connor K - DCJ (President); Goode P - Judicial Member; Nemeth de Bikal L - Non Judicial Member

CATCHWORDS: interim order

MATTER FOR DECISION: Preliminary matter

FILE NUMBER UNDER APPEAL: 031086 & 031149

DATE OF DECISION UNDER APPEAL: 11/22/2004

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Defamation Act 1974

CASES CITED: Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35
Re Adams and The Tax Agents Board (1976) 12 ALR 239; 1 ALD 251
Thurairajah v Law Society of New South Wales (LSD) [2002] NSWADTAP 22
Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18
Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC [92-701]
Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102

REPRESENTATION: APPELLANT
G Reynolds, SC
RESPONDENT
C Ronalds, SC

ORDERS: 1. The appellants' application for an urgent interlocutory order staying the proceedings of the Equal Opportunity Division is refused; 2. This appeal is adjourned until further order of the Appeal Panel.

1 The Appeal Panel has before it an application by the appellants that the Appeal Panel exercise the power given by s 116 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) to make an interlocutory order staying proceedings that are part-heard in the Equal Opportunity Division of the Tribunal (the Tribunal).

2 This application follows lodgment of a notice of appeal against a decision of the Tribunal on 22 November 2004 finding that the appellants (two radio presenters and the broadcasting company that employed them) had engaged in the unlawful conduct of homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (the ADA): see Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267.

3 The Tribunal’s decision did not deal with the question of the appropriate orders or the successful applicant’s application for costs of the proceedings. The Tribunal gave the following directions in that regard:

4. By 10 December 2004 the applicant will file and serve submissions on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made

5. By 24 December 2004 the respondents will file and serve submissions in reply on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made

6. The question of costs is reserved

7. By 24 December 2004 the respondents will file and serve submissions on costs.’

4 The applicant in the…

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: [2004] NSWADTAP 53
Decision Date: 12/17/2004

CaseChat Overview and Summary

The case of Radio 2UE Sydney Pty Ltd v Burns involved a dispute between the appellants, who were the employers of a former employee, and the respondent, who had brought a claim for sexual harassment. The matter was initially heard in the Equal Opportunity Division of the Industrial Relations Commission of New South Wales, and was subsequently appealed to the Commission's Appeal Panel. The appellants sought an urgent interlocutory order to stay the proceedings of the Equal Opportunity Division, which the respondent opposed.

The central legal issue before the Appeal Panel was whether the appellants were entitled to an interlocutory order staying the proceedings in the Equal Opportunity Division. The appellants argued that the matter was subject to a Federal Court proceeding, and that the Equal Opportunity Division lacked jurisdiction to hear the respondent's claim. The respondent, on the other hand, submitted that the appeal was not urgent and that the proceedings should be allowed to continue. The Appeal Panel had to determine whether the appellants' application for an interlocutory order was justified, and whether the proceedings should be stayed pending the outcome of the Federal Court proceeding.

In its decision, the Appeal Panel noted that the appellants had not demonstrated any urgency in their application for an interlocutory order. The Panel found that the matter was not sufficiently pressing to warrant a stay of the proceedings in the Equal Opportunity Division. Furthermore, the Appeal Panel held that the Equal Opportunity Division had jurisdiction to hear the respondent's claim for sexual harassment, and that the matter was not precluded by the Federal Court proceeding. As a result, the Appeal Panel refused the appellants' application for an interlocutory order and adjourned the appeal until further order. This decision ensures that the respondent's claim for sexual harassment will continue to be heard in the appropriate forum.

Orders

Orders of the court

1. The appellants' application for an urgent interlocutory order staying the proceedings of the Equal Opportunity Division is refused; 2. This appeal is adjourned until further order of the Appeal Panel.

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:	Radio 2UE Sydney Pty Ltd & Ors v Burns [2004] NSWADTAP 53
PARTIES:	APPELLANTS Radio 2UE Sydney Pty Ltd, Steve Price and John Laws RESPONDENT Gary Burns RESPONDENT Gary Burns
FILE NUMBER:	049049
HEARING DATES:	14/12/2004
SUBMISSIONS CLOSED:	12/14/2004
DATE OF DECISION:	12/17/2004
DECISION UNDER APPEAL:	Burns v Radio 2UE Sydney Pty Ltd & ors [2004] NSWADT267
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	interim order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	031086 & 031149
DATE OF DECISION UNDER APPEAL:	11/22/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Defamation Act 1974
CASES CITED:	Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 Re Adams and The Tax Agents Board (1976) 12 ALR 239; 1 ALD 251 Thurairajah v Law Society of New South Wales (LSD) [2002] NSWADTAP 22 Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC [92-701] Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102
REPRESENTATION:	APPELLANT G Reynolds, SC RESPONDENT C Ronalds, SC
ORDERS:	1. The appellants' application for an urgent interlocutory order staying the proceedings of the Equal Opportunity Division is refused; 2. This appeal is adjourned until further order of the Appeal Panel.