Trad v Jones (No. 2)

[2009] NSWADT 206

CITATION:	Trad v Jones (No. 2) [2009] NSWADT 206
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Keysar Trad RESPONDENTS Alan Jones Harbour Radio Pty Ltd
FILE NUMBER:	071036
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	9 July 2009
DATE OF DECISION:	4 August 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Scope of complaint - amendment of pleadings - issue of summons
LEGISLATION CITED:	Administrative Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89 Haider v Combined District Radio Cabs Pty Ltd trading as Central Coast Taxis [2008] NSWADT 123 Khan v Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1 Sleiman v Kmart Australia Limited [2003] NSWADT 21 Queensland v JL Holdings (1997) 189 CLR 146 Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 Trad v Jones & anor [2008] NSWADT 272
REPRESENTATION:	APPLICANT T Goldberg, solicitor RESPONDENT A Stewart, solicitor
ORDERS:	1. Leave is granted to the Applicant to amend his Points of Claim, by inserting par. [25] of the Second Further Amended Points of Claim filed on 29 June 2009 2. The application in respect of the balance of the amendments sought will be determined at Hearing on August 6 2009 3. Leave to issue Summons on the Lebanese Moslem Association is refused.

1 These reasons address two preliminary issues — whether leave should be granted to the Applicant, Mr Keysar Trad, to amend his Points of Claim and whether the Respondents, broadcaster, Alan Jones and Radio 2GB licensee, Harbour Radio Pty Ltd, should be permitted to issue a summons to the Lebanese Moslem Association.

2 The substantive issue in these proceedings concerns a complaint of racial vilification lodged with the Anti-Discrimination Board by the Applicant. He contends that during radio programs broadcast over three mornings in April 2005, Mr Jones racially vilified him and ‘the entire Australian Muslim community and the entire Lebanese community’.

3 Section 20C of the Anti-Discrimination Act 1977 (the Act) makes it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

4 Race is defined by the Act to include ‘colour, nationality, descent and ethnic, ethno-religious or national origin’.

5 This matter is now part heard.

6 The proposed amendments are set out in the Second Further Amended Points of Claim filed by the Applicant on 29 June 2009. They include the characterisation of the race alleged to have been vilified by the Respondents. The Respondents oppose the amendments.

7 To put the parties’ arguments in context it is necessary to sketch in some background. Since the commencement of these proceedings the Applicant’s ‘pleadings’ have contained two main claims — first, that in the course of a radio program broadcast on 28 April 2005, the Respondents vilified members of the Lebanese community. For convenience I will refer to this as the ‘Schedule A claim’. Second, that during radio programs broadcast on 26, 27 and 28 April 2005, the Respondents vilified members of the ‘Muslim community’ ― the ‘Schedule B claim’. That claim rests on the assertion that Muslims constitute an ‘ethno religious group’ and thus a race for the purpose of the Act (see par.[25] of the Applicant’s Amended Points of Claim).

8 In opening submissions on 11 May 2009, counsel for the Applicant, Ms Nomchong, stated that in respect of the Schedule B claim it remained the Applicant’s primary contention that Muslims constitute an ethno-religious group and thus a race. She stated that while the Applicant did not resile from that position, in the alternative, it was claimed that the race or group vilified by the offending broadcasts, was ‘Lebanese Muslims’, or ‘Arab/Middle Eastern Muslims’.

9 Counsel for the respondents, Ms Eastman, contended that this ‘alternative position’ put the Applicant’s claim on a very different basis to that made to date. She argued that this was the first time in the long history of these proceedings that the Applicant has contended that the group alleged to have been vilified by the Schedule B broadcasts, was anything other than ‘Muslims/members of the Muslim community’. She pointed out that from Day 1 the Applicant has sought to argue the ‘novel point’ that Muslims are an ethno-religious group.

10 She also pointed out that this issue had been the subject of an earlier application made by the Respondents to have the Schedule B claim struck out. She noted that in October 2008 the Tribunal invited the Applicant to do what he now seeks to do, but he chose not to take that opportunity (Trad v Jones & anor [2008] NSWADT 272):

Complaint of religious vilification

31 The respondents contend that paragraphs 20 to 35 of the Points of Claim plead religious vilification and as religion is not a prescribed ground under the Act, Mr Trad should be invited to amend his Points of Claim. They contend that Mr Trad’s claim that ‘Muslims’ or ‘members of the Muslim community’ constitute a race or more specifically an ‘ethno-religious’ group for the purpose of the Act, is unsustainable. They refer to the long line of authority within the Tribunal that Muslims do not fall within the statutory definition of race: Khan v Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1; Sleiman v Kmart Australia Limited [2003] NSWADT 21; Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89; Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 and Haider v Combined District Radio Cabs Pty Lid trading as Central Coast Taxis [2008] NSWADT 123.

32 It was argued for Mr Trad that there is no binding authority on this issue and the Tribunal constituted for the purpose of determining his complaint is not bound to adopt the approach taken by differently constituted tribunals. He points to the expert evidence filed in these proceedings which challenges the orthodoxy that reference to ‘the Muslim community’ or ‘Muslims’ is solely a reference to adherents of the religion of Islam. He claims that a matter of substance such as this should be permitted to be determined on its merits and not dismissed summarily.

33 In any event it is argued for Mr Trad that the reference to ‘Muslims’ in paragraphs 20 to 35 of the Points of Claim is not a reference to ‘Muslims at large’ but rather a reference to the Muslims referred to by Mr Jones in the offending broadcasts.

34 I agree with Mr Trad that it would be premature at this stage of the proceedings to determine this issue. As Mr Trad correctly points out there is no binding authority on this point and accordingly it is open to the Tribunal to determine this legally complex issue.

35 While for the reasons given I have decided not to strike out paragraphs 20 to 35 of the Points of Claim, if, as argued by Mr Trad the reference to ‘Muslims’ and ‘members of the Muslim community’, is not intended to be a reference to Muslims ‘at large’ but rather to those referred to in the offending broadcast, he is invited to consider whether that is properly reflected in the Points of Claim and if not, to file amended Points of Claim [within 21 days].

11 Much of the hearing on 11 May was occupied by argument about whether it was now open to the Applicant to contend that par. [25] of the Points of Claim could be read as referring to ‘Lebanese Muslims’.

12 The Tribunal invited the Applicant to consider whether he needed to amend par. [25] to properly reflect his ‘alternative position’. It made clear that leave would not necessarily be granted and the issue decided after the Respondents had been given an opportunity to make submissions.

13 The Applicant elected to seek leave to amend.

Should the Applicant be granted leave to amend?

14 The Applicant has made no submissions in support of his application other than to assert that the Respondents would not be prejudiced.

15 The Respondents complain that the proposed amendments and the correspondence they have had with the Applicant’s legal representatives leave them without a precise understanding of the case they must meet.

16 They contend that leave ought to be refused for a number of reasons.

17 First, they say that the proposed amendments go well beyond the scope of what had been foreshadowed at the hearing on 11 May 2009.

18 Second, they complain that the proposed amendments come at a very late stage in the proceedings and could have been made much earlier, at least by late 2008 after the Tribunal handed down its interlocutory decision on 3 October 2008.

19 Third, the Respondents submit that they had squarely raised the problem that the original points of claim were framed as religious rather than racial vilification. They say that they had put the Applicant on notice that such a complaint was outside the Tribunal’s jurisdiction and that he maintained this untenable position despite an invitation from the Tribunal, which was prompted by the Respondents, to reformulate the complaint to bring it within the scope of the Act.

20 Procedural rules are, of course, servants not masters of justice. The application for leave requires the Tribunal to weigh two fundamental considerations: the general imperative to manage litigation before it so as to facilitate the just disposal of the real issues between the parties; and the need do so in a manner which is as expeditious and economical as is reasonable in all the circumstances. (See s 73(2),(3) &(4) of the Administrative Tribunal Act 1997).

21 In making any discretionary order, such as that sought in the present application, the Tribunal must follow the dictates of justice. The High Court’s dictum in Queensland v JL Holdings (1997) 189 CLR 146 on this subject is well-known. The Court said (at 155):

Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

22 In considering where the dictates of justice lead, the Tribunal will usually take into account a number of matters. These include the stage at which the application for a discretionary order is made; whether there has been unreasonable default or delay in bringing the application; any prejudice that may flow to the non-defaulting party or parties or to Tribunal itself in the management of its caseload and the nature and degree of any such prejudice.

23 In assessing the degree of prejudice or injustice to the Respondents, the Tribunal must look at the significance of the matter in issue and make an assessment of the significance of the claims and defences. Given the public interest in determining issues of the kind raised by the Applicant, the Tribunal must also weigh the intangible prejudice to the parties if the dispute is not resolved by legal determination of the real issues now identified by the Applicant as those in dispute. Of course, I also take into account that there has been no default on the part of the Respondents.

24 I have concluded that leave to amend ought to be granted for the following reasons.

First, this matter is of significance in the wider community. Mr Jones is a well-known broadcaster and his views are, it is common knowledge, widely influential within the community. The fact that the Applicant has complained about Mr Jones and the radio station is also well-known. There is a public interest in resolving the claim by a public legal determination of the real issues between them.

25 Second, as originally framed in the Points of Claim, the Schedule B claim, may not fall within the scope of the Act. While a final determination of that question has yet to be made, there is strong authority against the Applicant’s original proposition that Muslims constitute a race for the purpose of the Act. To ensure that the real issues between the parties are properly placed before the Tribunal it is, in my opinion, appropriate to grant leave. When distilled, it became apparent that regardless of the question of whether Muslims are a race, the Applicant’s primary complaint is that members of his ‘race’, namely Lebanese or Middle Eastern/Muslims have been vilified by Mr Jones and 2GB. Whether that is so is the real issue to be determined.

26 Third, although the application came at a very late stage, no evidence has yet been heard. Although the Respondents may to some extent have to recast their case as a result, the fact that evidence has not been tested reduces the prejudice that the Respondents might otherwise have suffered due to the Applicant’s delay in bringing the application. The resulting delay is unfortunate and the fault for that delay lies squarely with the Applicant. The effects upon the Respondents of the delay, however, are not fatal or irreparable.

27 Fourth, although costs are not usually ordered in this jurisdiction, and no application is made at this stage for a costs order, it is within the power of the Tribunal to cure any unreasonable prejudice caused to the Respondents by making a costs order in their favour. In saying this, however, I am not foreshadowing any such order but simply making the point that the prejudice is curable, if appropriate, by a costs order.

28 For these reasons I have decided to permit the amendment contained in par. [25] of the Second Further Amended Points of Claim.

29 In respect to the balance of the amendments sought, many appear to be of a technical nature and could not reasonably be said to prejudice the Respondents. For example, the claim that the offending broadcasts ‘promoted or expressed hatred towards, and/or serious contempt for, or severe ridicule of, a person or group on the grounds of race…’ has been narrowed by the deletion of the words ‘severe ridicule of’ (par. [10] of the Second Further Amended Points of Claim). At the next directions hearing, the Respondents will be given the opportunity to identify any amendments to which they object and the issue then decided.

Should a summons issue?

30 The Respondents apply for an order that a summons issue for documents to be produced by the Lebanese Moslem Association. The documents sought include any referring to an authority for the Applicant to act as spokesperson for the Association and to represent the views of the Association; documents created between 1 April 2005 and 30 May 2005 referring to Sheik Faiz; Mr Alan Jones; 2GB Radio; and Harbour Radio; and documents of the Lebanese Moslem Association purporting to speak for, or act on behalf, of all Moslems resident in Sydney.

31 They say that the Applicant, in effect, claims a representative status for a large body of Australian Muslims of Lebanese birth or descent. It wishes to explore the Applicant’s relationship with the Lebanese Moslem Association. It asserts that as the Applicant claims that he suffered the loss of his position on the board of the Association as a direct result of Mr Jones’s broadcasts, the documents are relevant to the question of damages. Finally, it asserts that it needs the documents to properly test the claim that the word ’ ‘Muslim’ means ‘Lebanese Muslim’ in the context of the current litigation.

32 Issue is taken with this summons by the Applicant. It is contended that the material sought is irrelevant because the Applicant does not purport to speak for the Lebanese Moslem Association but on his own behalf as a Lebanese Muslim. That he had once been the President of the Association is, irrelevant to the matter before the Tribunal. Whatever views the Association may have as to the meaning of ‘Muslim’ and ‘Lebanese Muslim’ these are also said to be irrelevant. It is also denied that they are relevant to the damages claim made by Mr Trad.

33 My initial reaction to this application is: what has changed since 16 February 2009 when I first dealt with a similar application and rejected it?

34 The fact that a member of a group or category of protected persons brings a complaint does not make him or her representative of that group. In this case, the Applicant does not bring a complaint representing the Lebanese Moslem Association. It is not a complaint brought on behalf of others or a representative body (see ss 87B, 87C of the Act). The Association is not a party to the proceedings. An exploration of the Applicant’s relationship with the Association appears, as I said in February this year, to be irrelevant. The views of the Association on the questions involved in this case are also irrelevant.

35 I accept that if the Applicant lost his position on the Board of the Association as a result of the offending broadcasts, and the Applicant can prove that, damages may flow. However, the summons, as currently framed, does not on its face appear to deal with that issue but rather with other things which appear to be irrelevant to the proceedings.

36 My conclusion is that there has been no material change in the circumstances and I refuse this application.

Orders

1. Leave is granted to the Applicant to amend his Points of Claim, by inserting par. [25] of the Second Further Amended Points of Claim filed on 29 June 2009.

2. The application in respect of the balance of the amendments sought will be determined at Hearing on August 6 2009.

3. Leave to issue Summons on the Lebanese Moslem Association is refused.