Sunol v Collier - [2009] NSWADTAP 34

Appeal Panel - Internal

CITATION: Sunol v Collier [2009] NSWADTAP 34

PARTIES:
APPELLANT
John Sunol
RESPONDENT
Henry Collier

FILE NUMBER: 099002

HEARING DATES: 6 April 2009

SUBMISSIONS CLOSED: 28 April 2009

DATE OF DECISION:
4 June 2009

BEFORE: Britton A - Deputy President; Furness G - Judicial Member; Gill M - Non-Judicial Member

CATCHWORDS: Question of law, whether to refer to Supreme Court

DECISION UNDER APPEAL: Collier v Sunol [2008] NSWADT 339

FILE NUMBER UNDER APPEAL: 081045

LEGISLATION CITED: Administrative Decisions Tribunal Act 1977
Interpretation Act 1987
Judiciary Act 1903 (Cth)

CASES CITED: Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385

REPRESENTATION:
APPELLANT
M Robinson, barrister
RESPONDENT
F Berglund, barrister

ORDERS: Pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 the following questions of law are referred to the Supreme Court for the opinion of the Court: Whether eight communications or public acts identified in [13] of the Tribunal’s decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters?Whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires?Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters?

REASONS FOR DECISION

1 On 21 January 2009, the appellant filed an appeal against a decision of the Tribunal (Collier v Sunol [2008] NSWADT 339). The appeal was listed for hearing on 6 April 2009.

2 On the day of the hearing, the appellant filed an Amended Notice of Appeal seeking to argue a number of matters said by him to raise issues under the Commonwealth Constitution.

3 Having done so, he sought an order from the Appeal Panel that these questions of law be referred to the Supreme Court pursuant to s 118 of the Administrative Decisions Tribunal Act 1977. That section provides that an Appeal Panel may, of its own motion or at the request of a party, refer a question of law to the Supreme Court.

4 The Amended Notice of Appeal raises five contentions. They raise the following questions that the appellant seeks to have determined by the Supreme Court:

Collier v Sunol [2008] NSWADT 339

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 Sunol v Collier

Details

AGLC: Sunol v Collier [2009] NSWADTAP 34
Case: [2009] NSWADTAP 34
Decision Date: 4 June 2009

CaseChat Overview and Summary

Sunol v Collier was heard by the Administrative Decisions Tribunal of New South Wales, where the primary issue was the constitutional implication of freedom of communication about government or political matters. This case arose from a dispute between Sunol and Collier, which led to a Tribunal decision that raised significant questions regarding the Anti-Discrimination Act 1977 (NSW) and its interaction with constitutional protections. The Tribunal had to decide whether certain communications were protected under the constitutional implication of freedom of communication about government or political matters, and whether specific sections of the Anti-Discrimination Act were compatible with these protections.

The court was tasked with determining whether the eight communications identified in the Tribunal's decision could be protected under the constitutional implication of freedom of communication about government or political matters. Furthermore, the court had to consider whether sections 49ZT, 91A(6) to (9), and 114 of the Anti-Discrimination Act 1977 (NSW) should be interpreted in a manner that conforms with these constitutional protections or if they should be read down. Additionally, the court had to decide whether these sections were unlawful or beyond the powers of the Act (ultra vires). The central legal issue was the balance between anti-discrimination laws and the constitutional protection of freedom of political communication.

The Tribunal referred several questions of law to the Supreme Court, recognising the complexity and importance of the issues involved. The Tribunal found that the questions raised were beyond its jurisdiction and required the interpretation of constitutional law and statutory provisions. The court acknowledged the need for the Supreme Court's expertise to provide clarity on these matters. The Supreme Court was asked to determine if the identified communications were protected under the constitutional implication, and if certain sections of the Anti-Discrimination Act were compatible with these protections or needed to be read down to conform with the constitution.

The Supreme Court was directed to provide its opinion on these questions pursuant to section 118 of the Administrative Decisions Tribunal Act 1997. The court's decision to refer these questions highlighted the significance of ensuring that anti-discrimination laws do not inadvertently infringe upon constitutionally protected freedoms. The referral aimed to provide a definitive legal framework that balances the protection of individuals from discrimination with the fundamental right to freedom of political communication.

Orders

Orders of the court

Pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 the following questions of law are referred to the Supreme Court for the opinion of the Court: Whether eight communications or public acts identified in [13] of the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters?Whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires?Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters?

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

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CITATION:	Sunol v Collier [2009] NSWADTAP 34
PARTIES:	APPELLANT John Sunol RESPONDENT Henry Collier
FILE NUMBER:	099002
HEARING DATES:	6 April 2009
SUBMISSIONS CLOSED:	28 April 2009
DATE OF DECISION:	4 June 2009
BEFORE:	Britton A - Deputy President; Furness G - Judicial Member; Gill M - Non-Judicial Member
CATCHWORDS:	Question of law, whether to refer to Supreme Court
DECISION UNDER APPEAL:	Collier v Sunol [2008] NSWADT 339
FILE NUMBER UNDER APPEAL:	081045
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1977 Interpretation Act 1987 Judiciary Act 1903 (Cth)
CASES CITED:	Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385
REPRESENTATION:	APPELLANT M Robinson, barrister RESPONDENT F Berglund, barrister
ORDERS:	Pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 the following questions of law are referred to the Supreme Court for the opinion of the Court: Whether eight communications or public acts identified in [13] of the Tribunal’s decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters?Whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires?Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters?