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Tuck v Thompson and McGuire

Tuck v Thompson and McGuire

Case [2010] NSWADT 144 9 June 2010

Judicial Review

Unconscionable Conduct

Homosexual Vilification

Administrative Law

Human Rights Law

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CITATION: Tuck v Thompson and McGuire [2010] NSWADT 144

DIVISION: Equal Opportunity Division

PARTIES:
Applicant:
Roy Tuck
Respondent:
John Thompson (091135)
Patrick McGuire (091136)

FILE NUMBER: 091135; 091136

HEARING DATES: 31 May 2010

SUBMISSIONS CLOSED: 31 May 2010

DATE OF DECISION:
9 June 2010

BEFORE: Furness G - Judicial Member; Hayes E - Non-Judicial Member; Lowe A - Non-Judicial Member

CATCHWORDS: Equal Opportunity- homosexual vilification- apology

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Burns v Dye [2002] NSWADT 32
R v D and E Marinkovic [1996] EOC 92-841);
Anderson v Thompson [2001] NSWADT 11
Z v University of A & Ors (No 7) [2004] NSWADT 81
Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18
Kazak v John Fairfax Publications Ltd [2000] NSWADT 77
O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106
JM and JN v QL and QM [2010] NSWADT 66
Qantas Airways v Gama [2008] FCAFC 69;
Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98;
Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102;
Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16;
Carter v Brown and Fisher [2010] NSWADT 109

REPRESENTATION:
Applicant Representative:
C Mulvey, barrister
Respondent Representative:
No appearance by either respondent

ORDERS: Each respondent is to publish one of the following signed apologies behind the glass on the notice board opposite the main lifts on the ground floor of the foyer of residential apartments at 3 Phillip Street, Waterloo for a period of at least 28 days.
The apology should be printed in at least 12 point font on at least an A4 size typed page.
"The Equal Opportunity Division of the Administrative Decisions Tribunal has found John Thompson, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality.
I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.”
"The Equal Opportunity Division of the Administrative Decisions Tribunal has found Patrick McGuire, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality.
I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.”
Each respondent is enjoined from continuing or repeating any of the speech or other conduct which has been found to constitute vilification.

REASONS FOR DECISION

Introduction and procedural matters

1 The applicant, Roy Tuck made a complaint against…

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 Tuck v Thompson and McGuire

Details

AGLC: Tuck v Thompson and McGuire [2010] NSWADT 144
Case: [2010] NSWADT 144
Decision Date: 9 June 2010

CaseChat Overview and Summary

In the matter of Tuck v Thompson and McGuire, the respondent was found to have breached the Anti-Discrimination Act by making public remarks that constituted vilification against the applicant on the basis of his homosexuality. The dispute came before the Equal Opportunity Division of the Administrative Decisions Tribunal. The applicant sought an apology and an injunction to prevent the respondents from repeating their vilifying conduct.

The primary legal issues before the court were whether the respondents' conduct constituted vilification under the Anti-Discrimination Act and, if so, what the appropriate remedy should be. The court had to interpret the relevant provisions of the Act and determine the appropriate remedy to address the harm caused to the applicant.

The court found that the respondents' conduct did constitute vilification, as it incited hatred towards the applicant on the grounds of his homosexuality. The court noted that the remarks were made in a public context, which was a significant factor in finding a breach of the Act. The court held that the appropriate remedy was for the respondents to publish a signed apology and to be enjoined from repeating their conduct. The court detailed the form and content of the required apology, specifying that it must be prominently displayed and printed in a legible font size.

In its final orders, the court required each respondent to publish a specific apology on a notice board in their residential building for a minimum of 28 days. The court also enjoined the respondents from repeating any of the conduct that was found to constitute vilification.

Orders

Orders of the court

Each respondent is to publish one of the following signed apologies behind the glass on the notice board opposite the main lifts on the ground floor of the foyer of residential apartments at 3 Phillip Street, Waterloo for a period of at least 28 days.

The apology should be printed in at least 12 point font on at least an A4 size typed page.

"The Equal Opportunity Division of the Administrative Decisions Tribunal has found John Thompson, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality.

I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.”

"The Equal Opportunity Division of the Administrative Decisions Tribunal has found Patrick McGuire, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality.

I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.”

Each respondent is enjoined from continuing or repeating any of the speech or other conduct which has been found to constitute vilification.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Tuck v Thompson and McGuire [2010] NSWADT 144

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 11 of 11 shown

Carter v Brown
[2010] NSWADT 109

…W Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Carter v Brown and Fisher [2010] NSWADT 109 REPRESENTATION: Applicant Representative: C Mulvey, barrister Respondent Representative: No appearance by either respondent ORDERS: Each respondent is…
JM and JN v QL and QM
[2010] NSWADT 66

…ublications Ltd [2000] NSWADT 77 O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 JM and JN v QL and QM [2010] NSWADT 66 Qantas Airways v Gama [2008] FCAFC 69; Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW…
Z v University of A & Ors (No 7)
[2004] NSWADT 81

…CITED: Burns v Dye [2002] NSWADT 32 R v D and E Marinkovic [1996] EOC 92-841); Anderson v Thompson [2001] NSWADT 11 Z v University of A & Ors (No 7) [2004] NSWADT 81 Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 O’Callaghan v Loder [1984] EOC 92-023…
Veloskey v Karagiannakis
[2002] NSWADTAP 18

…kovic [1996] EOC 92-841); Anderson v Thompson [2001] NSWADT 11 Z v University of A & Ors (No 7) [2004] NSWADT 81 Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 J…
Burns v Dye
[2002] NSWADT 32

…homosexual vilification- apology LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Burns v Dye [2002] NSWADT 32 R v D and E Marinkovic [1996] EOC 92-841); Anderson v Thompson [2001] NSWADT 11 Z v University of A & Ors (No 7) [2004] NSWADT 81 Veloskey &Anor v Ka…
Commissioner of Police, New South Wales Police Service v Orr
[2001] NSWADTAP 16

…/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Carter v Brown and Fisher [2010] NSWADT 109 REPRESENTATION: Applicant Representative: C Mulvey, barrister Respondent Representative: No appearance by…
Anderson v Thompson
[2001] NSWADT 11

…ibunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Burns v Dye [2002] NSWADT 32 R v D and E Marinkovic [1996] EOC 92-841); Anderson v Thompson [2001] NSWADT 11 Z v University of A & Ors (No 7) [2004] NSWADT 81 Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18 Kazak v John Fairfax Publications Ltd [2000…
Kazak v John Fairfax Publications Limited
[2000] NSWADT 77

…DT 11 Z v University of A & Ors (No 7) [2004] NSWADT 81 Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 JM and JN v QL and QM [2010] NSWADT 66 Qantas Airways v…
Ehl v Dept of Education and Training & NSW Teachers Federation
[1999] NSWADT 102

…008] FCAFC 69; Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Carter v Brown and Fisher [2010] NSWADT 109 REPRESENTATION: Applicant…
Australian Iron & Steel Pty Ltd v Banovic
[1989] HCA 56

…& Ors [2002] NSWADTAP 18 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 JM and JN v QL and QM [2010] NSWADT 66 Qantas Airways v Gama [2008] FCAFC 69; Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/…
Qantas Airways Limited v Gama
[2008] FCAFC 69

…aghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 JM and JN v QL and QM [2010] NSWADT 66 Qantas Airways v Gama [2008] FCAFC 69; Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102…

Legislation cited in this decision · 2

Administrative Decisions Tribunal Act 1997 (NSW)
1 mention
Anti-Discrimination Act 1977 (NSW)
1 mention

CITATION:	Tuck v Thompson and McGuire [2010] NSWADT 144
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Roy Tuck Respondent: John Thompson (091135) Patrick McGuire (091136)
FILE NUMBER:	091135; 091136
HEARING DATES:	31 May 2010
SUBMISSIONS CLOSED:	31 May 2010
DATE OF DECISION:	9 June 2010
BEFORE:	Furness G - Judicial Member; Hayes E - Non-Judicial Member; Lowe A - Non-Judicial Member
CATCHWORDS:	Equal Opportunity- homosexual vilification- apology
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Burns v Dye [2002] NSWADT 32 R v D and E Marinkovic [1996] EOC 92-841); Anderson v Thompson [2001] NSWADT 11 Z v University of A & Ors (No 7) [2004] NSWADT 81 Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 JM and JN v QL and QM [2010] NSWADT 66 Qantas Airways v Gama [2008] FCAFC 69; Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Carter v Brown and Fisher [2010] NSWADT 109
REPRESENTATION:	Applicant Representative: C Mulvey, barrister Respondent Representative: No appearance by either respondent
ORDERS:	Each respondent is to publish one of the following signed apologies behind the glass on the notice board opposite the main lifts on the ground floor of the foyer of residential apartments at 3 Phillip Street, Waterloo for a period of at least 28 days. The apology should be printed in at least 12 point font on at least an A4 size typed page. "The Equal Opportunity Division of the Administrative Decisions Tribunal has found John Thompson, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality. I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.” "The Equal Opportunity Division of the Administrative Decisions Tribunal has found Patrick McGuire, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality. I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.” Each respondent is enjoined from continuing or repeating any of the speech or other conduct which has been found to constitute vilification.