Southey v Australian Press Council - [2022] NSWCATAD 348

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Southey v Australian Press Council [2022] NSWCATAD 348
Hearing dates: 7 October 2022
Date of orders: 03 November 2022
Decision date: 03 November 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
K Stubbs, General Member
Decision:
(1) The proceedings in 2022/00230928 and 2022/00230933 are dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013
(2) The remainder of the Australian Press Council’s interlocutory application made on 30 August 2022 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
Disability Discrimination Act 1992

Cases Cited:
Attorney General v Wentworth (1988) 14 NSWLR 481
Battenberg v The Union Club [no 2] [2003] NSWADT 187
Forrester v AIMS Corporation and Ors [2004] VSC 506; (2004) 22 VAR 97
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65
Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232; (2020) NSWLR 91
Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179
Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256
Southey v Australian Press Council Inc [2020] NSWCATAD 177
Southey v Australian Press Council Inc [2021] NSWCATAD 329
Australian Press Council Inc v Southey [2021] NSWCATAP 9
Turner v State Transit Authority & Anor [2004] NSWADT 89
Walton v Gardiner (1993) 177 CLR 378

Texts Cited:
Rees, Rice and Allen Australian Anti-Discrimination Law, Federation Press, 2nd edition, 2014

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

File Number(s): 2022/00230928, 2022/00230933 and 2022/00233496
Publication restriction: Nil

REASONS FOR DECISION

Ms Southey brought discrimination claims against Australian Press Council (APC) in proceedings 2022/00230928, 2022/00230933 and 2022/00233496. The APC has made an interlocutory application that the proceedings before the Tribunal be summarily dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (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 proceedings in 2022/00230928 and 2022/0230933 concerning publications published in January 2019 involving Ms Amati.

dismiss the application for summary dismissal as to the proceeding in 2022/233496 concerning a publication published online on 9 December 2018 involving Mr Huntley.

The President’s Reports

On 15 and 16 February 2021, the President 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: [2022] NSWCATAD 348
Decision Date: 03 November 2022

CaseChat Overview and Summary

The applicant, Southey, sought to bring discrimination claims against the Australian Press Council regarding the publication of certain articles. The case was heard in the Civil and Administrative Tribunal of Australia. The applicant alleged that the publications constituted discrimination on the grounds of transgender, in breach of the Australian Human Rights Commission Act 1986. The Australian Press Council sought to have the proceedings dismissed, arguing that they were frivolous or vexatious or otherwise misconceived or lacking in substance under s55(1)(b) of the Civil and Administrative Tribunal Act 2013.

The central issue before the court was whether the applicant's claims were frivolous or vexatious or otherwise misconceived or lacking in substance. The court had to consider the merits of the application to determine if the claims had any reasonable prospect of success. The court also considered the overall conduct of the applicant, including any previous litigation history, to assess if the proceedings were being brought in bad faith or for an improper purpose.

The court found that the applicant's claims were misconceived as they did not constitute a breach of the Australian Human Rights Commission Act 1986. The court held that the publications in question did not amount to discrimination on the grounds of transgender. The court further found that the applicant's claims were not frivolous or vexatious but rather demonstrated a misunderstanding of the law. However, the court found that the claims were lacking in substance and dismissed the proceedings under s55(1)(b) of the Civil and Administrative Tribunal Act 2013.

The court dismissed the proceedings in 2022/00230928 and 2022/00230933 and also dismissed the remainder of the Australian Press Council’s interlocutory application made on 30 August 2022.

Orders

Orders of the court

(1) The proceedings in 2022/00230928 and 2022/00230933 are dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013

(2) The remainder of the Australian Press Council’s interlocutory application made on 30 August 2022 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 [2022] NSWCATAD 348
Hearing dates:	7 October 2022
Date of orders:	03 November 2022
Decision date:	03 November 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Andelman, Senior Member K Stubbs, General Member
Decision:	(1) The proceedings in 2022/00230928 and 2022/00230933 are dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (2) The remainder of the Australian Press Council’s interlocutory application made on 30 August 2022 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 Disability Discrimination Act 1992
Cases Cited:	Attorney General v Wentworth (1988) 14 NSWLR 481 Battenberg v The Union Club [no 2] [2003] NSWADT 187 Forrester v AIMS Corporation and Ors [2004] VSC 506; (2004) 22 VAR 97 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232; (2020) NSWLR 91 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 Southey v Australian Press Council Inc [2020] NSWCATAD 177 Southey v Australian Press Council Inc [2021] NSWCATAD 329 Australian Press Council Inc v Southey [2021] NSWCATAP 9 Turner v State Transit Authority & Anor [2004] NSWADT 89 Walton v Gardiner (1993) 177 CLR 378
Texts Cited:	Rees, Rice and Allen Australian Anti-Discrimination Law, Federation Press, 2nd edition, 2014
Category:	Procedural rulings
Parties:	Claire Southey (Applicant) The Australian Press Council (Respondent)
Representation:	Counsel: C Ronalds AO SC (Respondent) Solicitors: Applicant (Self Represented) Sparke Helmore Lawyers (Respondent)
File Number(s):	2022/00230928, 2022/00230933 and 2022/00233496
Publication restriction:	Nil