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…

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 Trad v Jones (No. 2)

Details

AGLC: Trad v Jones (No. 2) [2009] NSWADT 206
Case: [2009] NSWADT 206
Decision Date: 4 August 2009

CaseChat Overview and Summary

The case of Trad v Jones (No. 2) involved the Applicant, Trad, seeking to amend his points of claim against the Respondent, Jones. The dispute centred around the scope of the complaint Trad was entitled to bring and the admissibility of certain amendments to his pleadings. The case was heard in a relevant Australian court. The Applicant sought to include additional allegations in his points of claim, specifically paragraph [25] of the Second Further Amended Points of Claim filed on 29 June 2009. Additionally, Trad applied to issue a summons against the Lebanese Moslem Association, which was also contested by Jones.

The primary legal issues before the court were whether Trad was entitled to amend his points of claim to include the additional allegations and whether the court should permit the issuance of a summons against the Lebanese Moslem Association. The court needed to consider the principles of amendment of pleadings and the scope of the complaint as defined by the existing allegations. The court was also required to decide if the new allegations were relevant and necessary to the case and whether the summons against the Lebanese Moslem Association was appropriate.

The court granted leave for Trad to amend his points of claim by inserting paragraph [25], finding that the amendment was relevant and necessary to the case. However, the court refused leave to issue a summons against the Lebanese Moslem Association, as it was not deemed appropriate at that stage of the proceedings. The court determined that the remaining amendments sought by Trad would be considered at a later hearing on 6 August 2009. The court's reasoning was based on the need to ensure that amendments do not unduly prejudice the Respondent and that the summons was not necessary for the resolution of the existing dispute.

In summary, the court granted partial leave for Trad to amend his points of claim but denied the application to issue a summons against the Lebanese Moslem Association. The remaining amendments would be addressed at a future hearing.

Orders

Orders of the court

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.

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:	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.