Legal Research
Cases
Radio 2UE Sydney Pty Ltd v Burns (EOD)

Radio 2UE Sydney Pty Ltd v Burns (EOD)

Link copied

Case Copied 6 December 2005 59 min read

Contents

On this page

Set aside by Appeal:
Set aside by Appeal on 11/12/06: Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349

Appeal Panel - Internal

CITATION: Radio 2UE Sydney Pty Ltd and ors v Burns (EOD) [2005] NSWADTAP 69

PARTIES: APPELLANT
Radio 2UE Sydney Pty Ltd and ors
RESPONDENT
Gary Burns
INTERVENOR
Attorney General of New South Wales

FILE NUMBER: 049049

HEARING DATES: 21/06/2005

SUBMISSIONS CLOSED: 06/21/2005

DATE OF DECISION:
12/06/2005

DECISION UNDER APPEAL:
Burns v Radio 2UE Sydney Pty Ltd and ors [2004] NSWADT 267

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: jurisdiciton - to determine - constitutionality of legislative provision

MATTER FOR DECISION: Preliminary matter

FILE NUMBER UNDER APPEAL: 031086 and 031149

DATE OF DECISION UNDER APPEAL: 11/22/2004

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Act 1991 (Qld)
Commonwealth Constitution
Commonwealth of Australia Constitution Act (Imp), 63 & 64 Vict. C 12
Consumer Claims Tribunal Act 1974
Equal Opportunity Act 1984 (Vic)
Equal Opportunity Act 1994 (WA)
Evidence Act 1995
Fair Trading Tribunal Act 1998
Federal Magistrates Act 1999 (Cth)
Justices Act 1902
Retail Leases Act 1994
Suiters Fund Act 1951
Trade Practices Act 1974 (Cth)

CASES CITED: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567
Coleman v Porter (2004) 78 ALJR 1166
Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
The Commonwealth of Australia v Hospital Contribution Fund (1982) 150 CLR 49
Kotsis v Kotsis (1970) 122 CLR 69
Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd trading as Café Tiffany's [2005] NSWADTAP 9
State Rail Authority NSW v Consumer Claims Tribunal (1988) 14 NSWLR 473
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
Harvey v Victims Compensation Tribunal [2001] NSWSC 604
Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Limited (1970) 123 CLR 361
State Rail Authority v Consumer Claims Tribunal & Ors (1988) 14 NSWLR 473
O'Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136
Australian Postal Commission v Dao (1985) 3 NSWLR 565 (Dao No 1)
Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
NSW Bar Association v Muirhead (1988) 14 NSWLR 173
Fardon v Attorney-General (Queensland) (2004) 210 ALR 50
Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308
Kable v DPP (NSW) (1996) 189 CLR 51
Taudevin v Egis Consulting Australia Pty Ltd (No 1) [2001] NSWIRComm 340; 131 IR 124
Powercoal Pty Ltd v Industrial Relations Commission of NSW [2005] NSWCA 345
Re Adams and Tax Agents Board (1976) 12 ALR 239
Attorney General v Estcort and the Wilderness Society Inc (1995) 4 TasR 355
Re Pastoral Industry Award 1986 (No 2) (1988) 80…

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.

Keep reading for free

Create a free CaseChat account to read Radio 2UE Sydney Pty Ltd v Burns (EOD) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWADTAP 69
Decision Date: 12/06/2005

CaseChat Overview and Summary

In this case, Radio 2UE Sydney Pty Ltd brought an action against Burns, the respondent, in the Equal Opportunity Division of the Australian Human Rights Commission. The dispute centred on the interpretation and constitutional validity of a legislative provision, specifically s 10(4) of the Anti-Discrimination Act 1977 (NSW). The Tribunal's jurisdiction to interpret constitutional provisions and the implications of the relevant legislation were central to the proceedings.

The court had to determine whether the Tribunal, as the Equal Opportunity Division, possessed the requisite jurisdiction to interpret provisions of the Commonwealth Constitution. Additionally, the court was required to decide if the Tribunal was competent to consider questions of law relating to its jurisdiction, particularly in the context of the statutory framework governing its powers.

The court found that the Tribunal, while established under state legislation, could be considered a court for the purposes of s 39(2) of the Judiciary Act 1903. Consequently, it held that the Tribunal had the authority to interpret Commonwealth constitutional provisions. The court also determined that the Tribunal was competent to consider questions of law relating to its jurisdiction. This finding was significant as it affirmed the Tribunal's ability to address the constitutionality of the legislative provision in question.

The court ordered that the appeal be re-listed for further directions, reflecting the need for additional proceedings to fully address the issues raised by the parties.

Orders

Orders of the court

Answers to Preliminary Question; 1. The Tribunal sitting as the Equal Opportunity Division (and as the Appeal Panel dealing with appeals from the Equal Opportunity Division) is a court for the purposes of s 39(2) of the Judiciary Act 1903. It is therefore competent to decide matters involving the interpretation of the Commonwealth Constitution; 2. Alternatively, the Tribunal is competent to consider any question of law relating to its jurisdiction; 3. Appeal to be re-listed for further directions

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 and ors v Burns (EOD) [2005] NSWADTAP 69
PARTIES:	APPELLANT Radio 2UE Sydney Pty Ltd and ors RESPONDENT Gary Burns INTERVENOR Attorney General of New South Wales
FILE NUMBER:	049049
HEARING DATES:	21/06/2005
SUBMISSIONS CLOSED:	06/21/2005
DATE OF DECISION:	12/06/2005
DECISION UNDER APPEAL:	Burns v Radio 2UE Sydney Pty Ltd and ors [2004] NSWADT 267
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	jurisdiciton - to determine - constitutionality of legislative provision
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	031086 and 031149
DATE OF DECISION UNDER APPEAL:	11/22/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination Act 1991 (Qld) Commonwealth Constitution Commonwealth of Australia Constitution Act (Imp), 63 & 64 Vict. C 12 Consumer Claims Tribunal Act 1974 Equal Opportunity Act 1984 (Vic) Equal Opportunity Act 1994 (WA) Evidence Act 1995 Fair Trading Tribunal Act 1998 Federal Magistrates Act 1999 (Cth) Justices Act 1902 Retail Leases Act 1994 Suiters Fund Act 1951 Trade Practices Act 1974 (Cth)
CASES CITED:	Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 Coleman v Porter (2004) 78 ALJR 1166 Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 The Commonwealth of Australia v Hospital Contribution Fund (1982) 150 CLR 49 Kotsis v Kotsis (1970) 122 CLR 69 Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd trading as Café Tiffany's [2005] NSWADTAP 9 State Rail Authority NSW v Consumer Claims Tribunal (1988) 14 NSWLR 473 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 Harvey v Victims Compensation Tribunal [2001] NSWSC 604 Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Limited (1970) 123 CLR 361 State Rail Authority v Consumer Claims Tribunal & Ors (1988) 14 NSWLR 473 O'Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 Australian Postal Commission v Dao (1985) 3 NSWLR 565 (Dao No 1) Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 NSW Bar Association v Muirhead (1988) 14 NSWLR 173 Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 Kable v DPP (NSW) (1996) 189 CLR 51 Taudevin v Egis Consulting Australia Pty Ltd (No 1) [2001] NSWIRComm 340; 131 IR 124 Powercoal Pty Ltd v Industrial Relations Commission of NSW [2005] NSWCA 345 Re Adams and Tax Agents Board (1976) 12 ALR 239 Attorney General v Estcort and the Wilderness Society Inc (1995) 4 TasR 355 Re Pastoral Industry Award 1986 (No 2) (1988) 80…