Southey v Australian Press Council - [2023] NSWCATAD 145

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Southey v Australian Press Council [2023] NSWCATAD 145
Hearing dates: 28 March 2023
Date of orders: 14 June 2023
Decision date: 14 June 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
K Stubbs, General Member
Decision:
(1) The proceedings in 2022/00295291 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013.
(2) The remainder of the Respondent’s interlocutory application made on 13 February 2023 is dismissed.

Catchwords:
PRACTICE AND PROCEDURE – summary dismissal of proceedings under s55(1)(b) of the Civil and Administrative Act 2013 – whether the applicant’s discrimination claims are frivolous or vexatious or otherwise misconceived or lacking in substance.
HUMAN RIGHTS – discrimination – on the ground of transgender – provisions of goods and services

Legislation Cited:
Anti-Discrimination Act 1977
Civil and Administrative Act 2013

Cases Cited:
Australian Iron and Steel Pty. Ltd. v. Banovic (1989) 168 CLR 165
Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217
Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256
Southey v Australian Press Council [2022] NSWCATAD 348
Southey v Australian Press Council Inc [2021] NSWCATAD 329
Australian Press Council Inc v Southey [2021] NSWCATAP 9
Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349

Texts Cited:
None cited

Category: Procedural rulings
Parties: Claire Southey (Applicant)
Australian Press Council Inc (Respondent)
Representation:
Counsel:
C Ronalds AO SC (Respondent)
Solicitors:
Sparke Helmore Lawyers (Respondent)
Applicant (Self Represented)

File Number(s): 2022/00295291 and 2022/00233496
Publication restriction: Nil

REASONS FOR DECISION

Background

Ms Southey, the applicant in this proceeding, brought discrimination claims pursuant to the Anti-Discrimination Act (NSW) (the AD Act) against Australian Press Council (APC) in proceedings 2022/00295291 and 2022/00233496.
The APC sought to summarily dismiss the proceedings in 2022/233496 on 30 August 2022, the Tribunal dismissed the APC’s application in Southey v Australian Press Council [2022] NSWCATAD 348 (Southey 2022 Decision). Subsequently, Ms Southey filed separate Points of Claim in each proceeding.
On 13 February 2023, the APC made an interlocutory application that the proceedings in 2022/00295291 and 2022/00233496 be summarily dismissed pursuant to s55(1)(b) of the CAT Act on the basis that they are frivolous or vexations or otherwise misconceived or lacking in substance.
For the reasons that follow, we have decided to:

grant the application for summary dismissal as to the proceedings in 2022/00295291 concerning publications published in January 2019 involving Ms Amati.

dismiss the application for summary dismissal as to the proceeding in 2022/233496 concerning publications published in December 2018 involving Mr Huntley.

The President’s Reports

2022/00295291 Ms Amati

On 8 April 2020, the President of the Anti-Discrimination Board (ADB) received a complaint from Ms Southey alleging transgender discrimination in the provisions of goods and services as to APC’s conduct in regard to a publication involving Ms Amati.
Unfortunately, the complaint was overlooked and not accepted for investigation until 18 January 2022 by which time it was over 18…

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 145
Decision Date: 14 June 2023

CaseChat Overview and Summary

The matter before the court involved a challenge by Southey against the Australian Press Council, with the primary dispute being the dismissal of Southey's claims for discrimination based on gender identity. The case was heard in the Civil and Administrative Tribunal. Southey, a transgender individual, sought to bring claims against various media outlets, which were dismissed by the Australian Press Council on the basis that the claims were frivolous, vexatious, or otherwise misconceived or lacking in substance. Southey appealed this decision, arguing that the dismissal was unjust.

The key legal issues the court had to address were whether the tribunal was correct in summarily dismissing Southey's claims as frivolous or vexatious, and whether these claims were otherwise misconceived or lacking in substance. The court had to examine the specific provisions of the Civil and Administrative Tribunal Act 2013 and consider the relevant criteria for summary dismissal, particularly under section 55(1)(b). The court also had to assess the validity and substance of Southey's discrimination claims in the context of the relevant human rights provisions concerning discrimination on the grounds of gender identity.

The tribunal, upon reviewing the submissions and evidence, upheld the decision to dismiss Southey's claims. It found that the claims were indeed frivolous or vexatious and lacking in substance. The tribunal reasoned that Southey's claims did not meet the threshold for proceeding, as they were not well-founded and did not present a serious issue to be tried. The court determined that the dismissal was appropriate under the relevant statutory provisions and that the tribunal had correctly exercised its discretion. Consequently, the tribunal's decision to dismiss the proceedings was affirmed, and the remainder of the respondent’s interlocutory application was also dismissed.

Orders

Orders of the court

(1) The proceedings in 2022/00295291 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013.

(2) The remainder of the Respondent’s interlocutory application made on 13 February 2023 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 145
Hearing dates:	28 March 2023
Date of orders:	14 June 2023
Decision date:	14 June 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Andelman, Senior Member K Stubbs, General Member
Decision:	(1) The proceedings in 2022/00295291 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013. (2) The remainder of the Respondent’s interlocutory application made on 13 February 2023 is dismissed.
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal of proceedings under s55(1)(b) of the Civil and Administrative Act 2013 – whether the applicant’s discrimination claims are frivolous or vexatious or otherwise misconceived or lacking in substance. HUMAN RIGHTS – discrimination – on the ground of transgender – provisions of goods and services
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Act 2013
Cases Cited:	Australian Iron and Steel Pty. Ltd. v. Banovic (1989) 168 CLR 165 Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 Southey v Australian Press Council [2022] NSWCATAD 348 Southey v Australian Press Council Inc [2021] NSWCATAD 329 Australian Press Council Inc v Southey [2021] NSWCATAP 9 Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349
Texts Cited:	None cited
Category:	Procedural rulings
Parties:	Claire Southey (Applicant) Australian Press Council Inc (Respondent)
Representation:	Counsel: C Ronalds AO SC (Respondent) Solicitors: Sparke Helmore Lawyers (Respondent) Applicant (Self Represented)
File Number(s):	2022/00295291 and 2022/00233496
Publication restriction:	Nil