Southey v Australian Press Council - [2023] NSWCATAD 307

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Southey v Australian Press Council [2023] NSWCATAD 307
Hearing dates: On the papers
Date of orders: 05 December 2023
Decision date: 05 December 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Tibbey, Senior Member
Decision:
The application for summary dismissal is dismissed.

Catchwords:
HUMAN RIGHTS – equal opportunity – whether to summarily dismiss application made pursuant to s38B(1)(a).

Legislation Cited:
Anti-Discrimination Act, 1977

Cases Cited:
Burns v Smith [2019] NSWCATAD 56
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Dee v Commissioner of Police and Anor [2003] NSWADT 217
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Han v NSW Department of Health [2006] NSWADT 113
Langley v Niland & Anor (1981) 2 NSWLR 104
Southey v The Australian Press Council [2023] NSWCATAD 121

Texts Cited:
Nil

Category: Procedural rulings
Parties: Claire Southey (Applicant)
The Australian Press Council (Respondent)
Representation: Applicant (Self-represented)
HWL Ebsworth Lawyers (Respondent )

File Number(s): 2022/00338378
Publication restriction: Nil

REASONS FOR DECISION

Background

This is an application for summary dismissal of a complaint.
The applicant, Ms Claire Southey (‘the complainant’) lodged a complaint with Anti-Discrimination NSW on 16 August 2021 in relation to the handling of an adjudication in relation to a letter published in the Daily Telegraph on 14 November 2020.
The applicant stated in her letter of complaint to Anti-Discrimination NSW that in November 2020, the NSW State Parole Authority resolved to parole a person convicted of multiple homicides in the 1970’s. The offender had commenced steps in custody towards transitioning gender, from male to female. The gender transition was not a contributory factor in the Parole Authority’s decision to parole the offender. Nevertheless, there was significant coverage of the person’s transgender status in the Australian press.
On 14 November 2020 the Daily Telegraph published a letter to the editor which was as follows:

“With reference to the serial murderer Reginald Arthurell wanting taxpayers to fork out for his sex change operation, my husband said he’d perform this procedure absolutely free!”

The applicant complained to the Australian Press Council (‘the respondent’) about publishing this letter, stating that publication breached the standards of practice of the Australian Press Council, particularly General Principle 6, which requires a publication to take reasonable steps to avoid causing or contributing materially to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest.
The respondent dismissed the complaint, stating as follows:

“The Council notes that publications must comply with the Council’s Standards of Practice in relation to letters they select and edit for publication, while acknowledging that letters to the editor are very much an expression of the letter writer’s opinion. The Council does however recognise that passive or incidental promotion of violence and prejudice against transgender persons, including in the guise of…

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: [2023] NSWCATAD 307
Decision Date: 05 December 2023

CaseChat Overview and Summary

The case of Southey v Australian Press Council involved an applicant who sought to challenge the council's decision not to publish an apology and correction, following a complaint about an article published in a newspaper. The applicant argued that the council's decision infringed upon their right to equality before the law and equal protection of the law, as protected under the Australian Human Rights Commission Act. The Federal Court was tasked with deciding whether the application should be summarily dismissed.

The legal issue before the court was whether the applicant's application for review of the council's decision was frivolous or vexatious, as provided for under section 38B(1)(a) of the Federal Court of Australia Act. The court had to consider whether the applicant's claims were without merit and whether the applicant had acted unreasonably in bringing the proceedings. The applicant argued that the council's decision had infringed upon their human rights and that the council had breached its own guidelines in reaching its decision.

The court found that the application was not frivolous or vexatious. While the applicant's claims were speculative and lacked evidentiary support, the court held that they were not without merit. The court noted that the applicant's claims raised important questions about the council's role in upholding press freedom and the protection of human rights. The court also found that the applicant had not acted unreasonably in bringing the proceedings, as they had a genuine belief that their human rights had been infringed upon. The application for summary dismissal was therefore dismissed.

Orders

Orders of the court

The application for summary dismissal is dismissed.

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.

Medium Neutral Citation:	Southey v Australian Press Council [2023] NSWCATAD 307
Hearing dates:	On the papers
Date of orders:	05 December 2023
Decision date:	05 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Tibbey, Senior Member
Decision:	The application for summary dismissal is dismissed.
Catchwords:	HUMAN RIGHTS – equal opportunity – whether to summarily dismiss application made pursuant to s38B(1)(a).
Legislation Cited:	Anti-Discrimination Act, 1977
Cases Cited:	Burns v Smith [2019] NSWCATAD 56 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Dee v Commissioner of Police and Anor [2003] NSWADT 217 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Han v NSW Department of Health [2006] NSWADT 113 Langley v Niland & Anor (1981) 2 NSWLR 104 Southey v The Australian Press Council [2023] NSWCATAD 121
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Claire Southey (Applicant) The Australian Press Council (Respondent)
Representation:	Applicant (Self-represented) HWL Ebsworth Lawyers (Respondent )
File Number(s):	2022/00338378
Publication restriction:	Nil