Appeal Panel - Internal CITATION: Radio 2UE Sydney Pty Ltd & Ors v Burns [2004] NSWADTAP 53 APPELLANTS Radio 2UE Sydney Pty Ltd, Steve Price and John Laws PARTIES: RESPONDENT Gary Burns RESPONDENT Gary Burns FILE NUMBER: 049049 HEARING DATES: 14/12/2004 SUBMISSIONS CLOSED: 12/14/2004 DATE OF DECISION: 12/17/2004 Burns v Radio 2UE Sydney Pty Ltd & ors [2004] NSWADT267 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Goode P - Judicial Member; Nemeth de Bikal L - Non Judicial Member CATCHWORDS: interim order MATTER FOR DECISION: Preliminary matter FILE NUMBER UNDER APPEAL: 031086 & 031149 DATE OF DECISION UNDER APPEAL: 11/22/2004 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Defamation Act 1974 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 Re Adams and The Tax Agents Board (1976) 12 ALR 239; 1 ALD 251 CASES CITED: Thurairajah v Law Society of New South Wales (LSD) [2002] NSWADTAP 22 Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC [92-701] Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 APPELLANT REPRESENTATION: G Reynolds, SC RESPONDENT C Ronalds, SC ORDERS: 1. The appellants' application for an urgent interlocutory order staying the proceedings of the Equal Opportunity Division is refused; 2. This appeal is adjourned until further order of the Appeal Panel. REASONS FOR DECISION 1 The Appeal Panel has before it an application by the appellants that the Appeal Panel exercise the power given by s 116 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) to make an interlocutory order staying proceedings that are part-heard in the Equal Opportunity Division of the Tribunal (the Tribunal). 2 This application follows lodgment of a notice of appeal against a decision of the Tribunal on 22 November 2004 finding that the appellants (two radio presenters and the broadcasting company that employed them) had engaged in the unlawful conduct of homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (the ADA): see Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267. 3 The Tribunal's decision did not deal with the question of the appropriate orders or the successful applicant's application for costs of the proceedings. The Tribunal gave the following directions in that regard: '3. The question of an appropriate remedy is reserved 4. By 10 December 2004 the applicant will file and serve submissions on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made 5. By 24 December 2004 the respondents will file and serve submissions in reply on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made 6. The question of costs is reserved 7. By 24 December 2004 the respondents will file and serve submissions on costs.' 4 The applicant in the original proceedings, who is now the respondent to the appeal (and will be referred to in these reasons as the respondent), has complied with direction 4. 5 The appellants seek a stay of directions 5 and 7 pending resolution of this appeal against the finding of liability. The respondent opposes the application. 6 The application was heard by the Appeal Panel on 14 December 2004. 7 In the Appeal Panel's opinion, it is ordinarily not desirable to interrupt the processes of determination of the primary Tribunal by way of stay orders of the kind sought. To similar effect: Thurairajah v Law Society of New South Wales (LSD) [2002] NSWADTAP 22 at [13]. The respondent has in this instance been successful in relation to a matter of significance, conduct said to amount to homosexual vilification within the meaning of the ADA. Understandably, he now wishes to have final orders made. 8 This application has not come forward in a conventional manner. Ordinarily a stay application of this kind would be accompanied by a formulated notice of appeal, especially in circumstances where the appellants have been legally represented throughout. Instead, the notice of appeal filed 8 December 2004 states under the heading 'reasons for appeal' – 'To be advised'; and as to the reasons for applying for leave to extend the appeal to the merits – 'To be advised'. The appellants tendered at the hearing of this application a folder in which was included a list described in a covering letter from the appellants' solicitor as 'a document setting out our clients' draft points of appeal'. 9 The appellants relied on the following matters in support of their application: one, the prospects of success of the appeal; two, the prejudice that they would suffer if required to comply now with the directions of the Tribunal; and three, the balance of convenience. (a) Prospects of Success 10 Some care must be exercised in approaching this question. The final hearing of the points of appeal is not to be brought forward into the environment of a preliminary hearing. 11 Under the scheme of the ADA, all complaints as to conduct said to violate the ADA must first be made to the Anti-Discrimination Board of New South Wales. The President has power to decline a complaint on the basis that it lacks substance. The appellants noted that in this case the President had exercised that power. This fact was said to be relevant to the question of whether the appeal has reasonable prospects of success. The appellants contrasted the view of the President with the extremely different view reached by the Tribunal. 12 This is not the standard by which the question of 'reasonable prospects of success' or 'reasonable arguability' (to use another common formulation) is to be addressed. The relevant comparison is as between the principles upon which the Tribunal relied and those laid down by the law on the subject. 13 After being pressed by the Appeal Panel, counsel for the appellants, Mr Reynolds SC, redirected his submissions. 14 He said that his principal ground was that the Tribunal had misdirected itself as to what was required as a matter of law for conduct to be found to have contravened s 49ZT of the ADA. Section 49ZT provides: ' 49ZT Homosexual vilification unlawful (1) It is 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 homosexuality of the person or members of the group (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.' 15 Mr Reynolds' key submission was that the Tribunal had erred in interpretation of the words 'to incite hatred towards'. He contended that there had to be proof of 'actual' incitement and of an intention to incite. The Tribunal had been wrong when it said: '12 In their submissions the respondents [now, the appellants] conceded that it is not necessary for the Tribunal to find that there was an intention to incite. Decisions in this Tribunal have been inconsistent on this issue, and the NSW Law Reform Commission has said that it is desirable to clarify the position under the Anti-Discrimination Act 1977 (Report 92, 1999 at 7.112-7.122). But it seems to be "the now dominant view" that intention need not be proved (McNamara L, Regulating Racism Sydney Institute of Criminology, 2002, at 185, and see John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 at [24]). In this matter, therefore, it does not matter to the Tribunal what the respondents intended in making their comments about homosexual men. 13 Nor is it necessary to show that anyone was actually incited. This is not immediately apparent from the wording of s49ZT(1) of the Anti-Discrimination Act 1977, which appears to require proof that there was in fact incitement of hatred, serious contempt, or severe ridicule. This point – and the point that establishing vilification would be considerably more difficult if proof of actual incitement was necessary – was made in the second reading debates in relation to the identically worded racial vilification provisions (Hansard, Legislative Assembly, 10 May 1989, p7930; and see Rice S, Racial Vilification: The Missing Words (1995) 20 Alt LJ 304). Nevertheless this Tribunal has always proceeded on the basis that "it [is not] necessary to prove that anyone was in fact incited by the public act in question. It is the capacity of the public act performed by a person which is significant" (Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 at [93], and see Veloskey & Anor v Karagiannis & Ors at [25], and NSW Law Reform Commission Report 92 at 7.125), and we do not propose taking a different approach in this matter. The respondents, in making submissions as to what the conduct was 'capable of', rather than what effect it actually had, effectively conceded this point.' 16 In our view, based on our present researches, these are reasonably accurate statements of the current law. We note that these issues have been authoritatively dealt with in two Appeal Panel decisions, mentioned by the Tribunal in the above extract, John Fairfax Publications Limited v Kazak and Veloskey & Anor v Karagiannis & Ors. The early case (to the contrary) on which Mr Reynolds relied in his submissions, Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC [92-701], is not good law. 17 We have checked the submissions made to the Tribunal below by counsel for the appellants (Ms Oakley). We note that her statement of the law as to this aspect of the interpretation of s 49ZT was in substantially similar terms to those of the Tribunal. 18 In our view Mr Reynolds' principal submission has no reasonable prospects of success. 19 This point was point 9 of his clients' draft points of appeal; and point 10 is in similar terms with respect to the matter of 'hatred'. 20 We have not received any considered submissions on any of the other points of appeal, and, at this stage, we are not in a position to form a view as to whether any or some of them have reasonable prospects of success. 21 We have, nonetheless, examined the other points of appeal, and they can broadly be divided as follows: error in that the Tribunal did not separately examine each element of s 49ZT(1) and the defences relied upon under s 49ZT(2) (e.g. points 11 to 14); errors in relation to the application of the objective test of reasonableness (e.g. points 2 and 22); errors in failing to apply some general principles of statutory interpretation (e.g. points 4 to 8); and some more specific errors going to the required proofs (e.g. points 16 and 20). There are also two points alleging that the Tribunal erred in not construing s 49ZT by reference to limitations imposed by the Commonwealth Constitution (points 17 and 18). We note that many of the points made as objections on appeal could have been pressed at first instance - for example the constitutional points and the points based on general principles of statutory interpretation (reference is made to the approaches usually taken in relation to ambiguities, penal provisions and the presumption against invasion of common law rights). 22 We note that some of those points have received considered attention in earlier cases, and do not appear to have been resolved in favour of the submissions (admittedly brief at this stage) made by Mr Reynolds. Others have not, so far as we are aware, previously received consideration. We have in mind in particular the constitutional points. (We have some doubt as to whether this Tribunal is the appropriate forum for any such debate, and note in that regard the conflicting views expressed in relation to the Commonwealth Administrative Appeals Tribunal's power to adjudicate on constitutional questions: compare dicta of Brennan J (President) supporting competence in Re Adams and The Tax Agents Board (1976) 12 ALR 239; 1 ALD 251 with the contrary view of the commentary in Australian Administrative Law (Butterworths 1999) at [223] and Hall, "Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal" (1994) 22 Fed LR 15 at 43.) (b) Prejudice 23 The appellants claim that to put them to the effort and expense of complying with the directions of the Tribunal below at this stage will cause them a prejudice which would be avoided if, as they contend, the appeal is upheld. That prejudice has to be balanced, in our view, against the interest of a successful applicant in having a final resolution of their application. There is also to be considered the public interest in fostering finality in the resolution of disputes. 24 There is an obvious practical value in having matters authoritatively determined at trial level as to all issues in contention before an appeal proceeds. It is the common experience of the legal system that appeals that may have some strength in relation to the adequacy of findings of liability are not pursued when the orders made are taken into account. We acknowledge what Mr Reynolds has said in reply - that in this case his clients will not be deflected from their appeal whatever orders are made as to relief or costs. We note also that the respondent's counsel, Ms Ronalds SC, has indicated that her client is prepared to undertake not to enforce any final orders pending resolution of the appeal. 25 Nonetheless the particular attitudes of the parties in this case do not detract, in our view, from the importance of seeking to ensure, wherever practicable, finality in proceedings at first instance. 26 We are not minded to prevent the Tribunal from completing its task. 27 We accept that the appellants will, as a result, be put to some cost that may prove to be wasted if the appeal concerning the interpretation and application of s 49ZT is determined in their favour. On the other hand, it is in our view clear that this is a relatively minor cost viewed in the totality of the litigation, litigation that has already involved the filing of copious submissions, a number of case conferences or directions hearings, and three days of hearing, involving at all stages counsel of standing and instructing solicitors. 28 Mr Reynolds sought to draw attention to the basis upon which the respondent appears in the proceedings. He claimed that the respondent was insulated from costs by dint of, what he described as, his pro bono representation. In our view the degree of personal exposure by a rival party to costs (if it could be authoritatively proven) is not a relevant consideration on an application of the present kind. 29 Moreover, there is, in our view, benefit for the appeal process in knowing what the Tribunal's conclusion is in respect of the remaining matters. If the appeal is unsuccessful then those orders could be implemented straightaway, thus producing overall finality at this level of the legal hierarchy. (c) Balance of Convenience 30 While this was put as a third ground, Mr Reynolds did not, in our view, raise any matters beyond those already canvassed under the heading of prejudice. Further Conduct of the Matter 31 The appeal which the respondents seek to agitate is clearly an important one. We would encourage the Tribunal to set a speedy time-table with a view to making final orders, and delivering any reasons in support, not later than 31 March 2005. Order 1. The appellants' application for an urgent interlocutory order staying the proceedings of the Equal Opportunity Division is refused 2. This appeal is adjourned until further order of the Appeal Panel. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.