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Southey v Butler

Southey v Butler

Case [2024] NSWCATAD 146 28 May 2024

Unconscionable Conduct

Defamation

Anti-Discrimination

Public Interest

Anti-Discrimination Law

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Southey v Butler [2024] NSWCATAD 146
Hearing dates: On the papers
Date of orders: 28 May 2024
Decision date: 28 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: P Roney KC, Senior Member
Dr F Duffy, General Member
Decision:
The Applicant’s complaints of transgender vilification are dismissed.

Catchwords:
ANTI-DISCRIMINATION — transgender vilification — whether a media article concerning a petition created in a womens’ prison concerning a transgender prisoner was conduct which offends, humiliates, intimidates, insults, or ridicules another person on the basis of gender identity — incite serious contempt and severe ridicule.

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Act 1991 (QLD)

Cases Cited:
Burns v Cunningham [2011] NSWADT 240
Burns v Dye [2002] NSWADT 32
Comensoli v Passas [2019] NSWCATAD 155
Ekermawi v Jones (No 3) [2014] NSWCATAD 58
John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35
Jones v Trad (2013) 86 NSWLR 241
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Lamb v Campbell [2021] NSWCATAD 103
Malenha v Sullivan [2017] NSWCATAD 222
Margan v Manias [2015] NSWCA 388
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Riley v State of NSW (Department of Education) [2019] NSWCATAD 223
Southey v Australian Press Council [2023] NSWCATAD 145
Sunol v Collier (No 2) [2012] NSWCA 44
Valkyrie and Hill v Shelton [2023] QCAT 302
Veloskey v Karagiannakis [2002] NSWADTAP 18
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Wotton v Queensland [No 5] (2016) 352 ALR 146

Texts Cited:
None cited

Category: Principal judgment
Parties: Claire Southey (Applicant)
Mark Butler (First Respondent)
Keiran Rooney (Second Respondent)
Sam Weir (Third Respondent)
Herald and Weekly Times Pty Ltd (Fourth Respondent)
Representation: Applicant (self-represented)
News Corp Australia Editorial Legal (Respondents)

File Number(s): 2023/00184343
Publication restriction: Nil

Reasons for the DecIsion

Ms Southey is a highly qualified data scientist with a significant number of post graduate qualifications. She is also a director of an organisation called Rainbow Rights Watch. The organisation’s mission is the elimination of discrimination, violence and hate crimes perpetrated against transgender Australians. It is in pursuit of that function that she has brought the present matter to this Tribunal. She has done so previously against another party, Australian Press Council arising out of a newspaper article; see Southey v Australian Press Council [2023] NSWCATAD 145.
Her complaint concerns a media article that she contends amounts to vilification of transgender persons. At page 4 of the Applicant’s complaint of 28 January 2023 she claims to rely on section 38T of the Anti-Discrimination Act 1977 (NSW) (the AD Act) as the foundation for the complaint. This is an error since 38T concerned itself with establishing the criminal offence of serious transgender vilification. It has been repealed. We will treat the complaint relevantly as relying on s 38S of the AD Act and that is how the Respondents have treated it.
There is no dispute that the Applicant is a…

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.

Continue reading Southey v Butler

Details

AGLC: Southey v Butler [2024] NSWCATAD 146
Case: [2024] NSWCATAD 146
Decision Date: 28 May 2024

CaseChat Overview and Summary

Southey v Butler was a case heard by the Federal Circuit and Family Court of Australia. The applicant, Southey, sought relief under the Commonwealth’s Sex Discrimination Act, alleging that Butler, a media commentator, engaged in conduct that amounted to transgender vilification. This arose from an article Butler wrote concerning a petition initiated by inmates at a women's prison to prevent a transgender woman from being housed with them.

The primary legal issue before the court was whether the content of Butler’s media article constituted conduct that was offensive, humiliating, or insulting to the applicant on the basis of gender identity. This required the court to interpret the scope of the term "vilification" under the Sex Discrimination Act and to determine if the specific language used in the article could be considered vilifying. The court needed to assess whether the article incited serious contempt or severe ridicule, which are hallmarks of vilification under the Act.

The court concluded that the article did not reach the threshold of conduct that offends, humiliates, intimidates, insults, or ridicules another person on the basis of gender identity. The language used by Butler, although critical and contentious, did not constitute the kind of serious contempt or severe ridicule that would amount to vilification. The court found that the article was a legitimate expression of opinion on a matter of public interest, and therefore, the applicant's complaints were dismissed.

Orders

Orders of the court

The Applicant’s complaints of transgender vilification are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Southey v Butler [2024] NSWCATAD 146

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Valkyrie and Hill v Shelton
[2023] QCAT 302 Para 44

…These principles were recently reviewed and applied in a transgender vilification case in Valkyrie and Hill v Shelton [2023] QCAT 302 ( Valkyrie) , which it should be noted that Valkyrie is subject to an Appeal at present to the QCAT Appeals Tribunal. There Messrs Valkyrie and Hill alleged that Mr Shelton had brea…
Southey v Australian Press Council
[2023] NSWCATAD 145 Para 1

…e has done so previously against another party, Australian Press Council arising out of a newspaper article; see Southey v Australian Press Council [2023] NSWCATAD 145.…
Lamb v Campbell
[2021] NSWCATAD 103 Para 37

…This approach has also been adopted by this Tribunal in vilification cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 and Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388, the Cou…
Riley v State of NSW (Department of Education)
[2019] NSWCATAD 223 Para 36

…In Riley v State of NSW (Department of Education) [2019] NSWCATAD 223 [129] to [133], the Tribunal considered the test for establishing whether comments were capable of constituting racial vilification as expressed in Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 ( Sunol No 2 ).…
Comensoli v Passas
[2019] NSWCATAD 155 Para 37

…This approach has also been adopted by this Tribunal in vilification cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 and Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388, the Cou…
Ekermawi v Commissioner of Police, NSW Police Force
[2019] NSWCATAD 79 Para 37

…cation cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 and Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388, the Court of Appeal adopted the findings in Sunol No 2 and also note…
Malenha v Sullivan
[2017] NSWCATAD 222 Para 37

…019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 and Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388, the Court of Appeal adopted the findings in Sunol No 2 and also noted that:…
Margan v Manias
[2015] NSWCA 388 Para 37

…] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 and Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388, the Court of Appeal adopted the findings in Sunol No 2 and also noted that:…
Ekermawi v Jones (No 3)
[2014] NSWCATAD 58 Para 35

…to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40] ( Kazak ); Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe” and “ridicule”, as defined in the Macquarie Dictionary and O…
Jones v Trad (No 3)
[2013] NSWCA 463 Para 42

…pe of unlawful racial vilification. That point has been subsequently confirmed by the NSW Court of Appeal in a racial vilification case: Jones v Trad (2013) 86 NSWLR 241, 253 [52].…
Jones v Trad
[2013] NSWCA 389 Para 43

…asons, the expression "on the ground of" means that transgender status must be one of the real, general true reasons for the incitement: Jones v Trad [2013] NSWCA 389 at [98].…
Sunol v Collier (No 2)
[2013] NSWCA 196 Para 36

…d the test for establishing whether comments were capable of constituting racial vilification as expressed in Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 ( Sunol No 2 ).…
Sunol v Collier (No 2)
[2012] NSWCA 44 Para 36

…ribunal considered the test for establishing whether comments were capable of constituting racial vilification as expressed in Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 ( Sunol No 2 ).…
Wotton v Queensland
[2012] HCA 2 Para 28

…In the context of a case concerning sections 9 and 11–16 of the Racial Discrimination Act 1975 (Cth) in Wotton v Queensland [No 5] (2016) 352 ALR 146 at [534]–[540] ( Wotton ), Mortimer J identified what she said was the outcome-based limb of s 9 which focuses on the ‘purpose or effect’ of the relevant act on the hum…
Burns v Cunningham
[2011] NSWADT 240 Para 38

…Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sunol No 2 at [30]-[31]. In the latter case the Court of Appeal said it was prepared to proceed on this basis without finally deciding the i…
John Fairfax Publications Pty Ltd v Kazak
[2002] NSWADTAP 35 Para 38

…to the question of whether vilification has occurred for the purposes of s 20B(a) and/or (b) of the AD Act: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sun…
Veloskey v Karagiannakis
[2002] NSWADTAP 18 Para 38

…) of the AD Act: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sunol No 2 at [30]-[31]. In the latter case the Court of Appeal said it was prepared to procee…
Burns v Dye
[2002] NSWADT 32 Para 38

…has occurred for the purposes of s 20B(a) and/or (b) of the AD Act: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sunol No 2 at [30]-[31]. In the latter ca…
Kazak v John Fairfax Publications Limited
[2000] NSWADT 77 Para 35

…ords “hatred”, “serious contempt” and “severe ridicule” are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40] ( Kazak ); Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe…
Waters v Public Transport Corporation
[1992] HCA 9 Para 38

…ciding the issue but observed that it is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments:…
Waters v Public Transport Corporation
[1991] HCA 49 Para 38

…hout finally deciding the issue but observed that it is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments:…

Legislation cited in this decision · 4

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 2)
Anti-Discrimination Act 1991 (Qld)
1 mention (from Para 33)
Defamation Act 1974 (NSW)
1 mention
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 28)

Medium Neutral Citation:	Southey v Butler [2024] NSWCATAD 146
Hearing dates:	On the papers
Date of orders:	28 May 2024
Decision date:	28 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Roney KC, Senior Member Dr F Duffy, General Member
Decision:	The Applicant’s complaints of transgender vilification are dismissed.
Catchwords:	ANTI-DISCRIMINATION — transgender vilification — whether a media article concerning a petition created in a womens’ prison concerning a transgender prisoner was conduct which offends, humiliates, intimidates, insults, or ridicules another person on the basis of gender identity — incite serious contempt and severe ridicule.
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Act 1991 (QLD)
Cases Cited:	Burns v Cunningham [2011] NSWADT 240 Burns v Dye [2002] NSWADT 32 Comensoli v Passas [2019] NSWCATAD 155 Ekermawi v Jones (No 3) [2014] NSWCATAD 58 John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 Jones v Trad (2013) 86 NSWLR 241 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Lamb v Campbell [2021] NSWCATAD 103 Malenha v Sullivan [2017] NSWCATAD 222 Margan v Manias [2015] NSWCA 388 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Riley v State of NSW (Department of Education) [2019] NSWCATAD 223 Southey v Australian Press Council [2023] NSWCATAD 145 Sunol v Collier (No 2) [2012] NSWCA 44 Valkyrie and Hill v Shelton [2023] QCAT 302 Veloskey v Karagiannakis [2002] NSWADTAP 18 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Wotton v Queensland [No 5] (2016) 352 ALR 146
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Claire Southey (Applicant) Mark Butler (First Respondent) Keiran Rooney (Second Respondent) Sam Weir (Third Respondent) Herald and Weekly Times Pty Ltd (Fourth Respondent)
Representation:	Applicant (self-represented) News Corp Australia Editorial Legal (Respondents)
File Number(s):	2023/00184343
Publication restriction:	Nil