Appeal Panel - Internal CITATION: Radio 2UE Sydney Pty Ltd & Ors v Burns (No 2) (EOD) [2008] NSWADTAP 53 APPELLANTS Radio 2UE Sydney Pty Ltd, John Laws and Steve Price PARTIES: RESPONDENT Gary Burns FILE NUMBER: 049049; 059017 HEARING DATES: 7, 8 and 9 November 2007 (Ex Tempore Decision Delivered 9 November 2007) SUBMISSIONS CLOSED: 9 November 2007 BEFORE: O'Connor K - DCJ (President); Grotte E - Judicial Member; Nemeth de Bikal L - Non Judicial Member CATCHWORDS: Conduct of primary hearing - Defence - Relevant Evidence Not Given - Whether further opportunity should be given - Explanation - Interests of Justice MATTER FOR DECISION: Application for leave to extend Appeal to merits DECISION UNDER APPEAL: Burns v Radio 2UE Sydney Pty Ltd and Ors [2004] NSWADT 267 FILE NUMBER UNDER APPEAL: 031086 and 031149 DATE OF DECISION UNDER APPEAL: 11/22/2004 LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 CASES CITED: Burns v Radio 2UE and Ors [2004] NSWADT 267 Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349 APPELLANTS T Blackburn SC with P Kulevski of counsel / Banki Haddock Fiora REPRESENTATION: RESPONDENT C Ronalds SC with K Edwards of counsel / Public Interest Advocacy Centre (A) Appellants' application for leave to extend to the merits granted to allow consideration of the evidence of Mr Price and Mr Laws in connection with the defence provided by s 49ZT(2) of the Anti-Discrimination Act 1977 (B) For that purpose the case is remitted to the Tribunal below, if possible as previously constituted, subject to the following directions: 1. The Tribunal restrict its consideration to the evidence comprised by the statements marked A3 and A4 in the proceedings before the Appeal Panel and related evidence being the television program and the audio tape of the radio program and the transcript of the radio program ORDERS: 2. The Tribunal to determine whether it should maintain or vary its previous orders, and if its decision is to vary its orders, to vacate its previous orders to the extent necessary, and enter new orders (C) Appeal adjourned pending the Tribunal's reconsideration of its orders Costs: 1. Respondent's Application under s 88 of the Administrative Decisions Tribunal Act 1997 for its Costs in respect of this Application. The Appellants to pay the Respondent's costs of the Appellants' application. The operation of this order as it relates to the Second and Third Appellants is deferred until further order of the Tribunal. The Respondent's further application that the costs to be paid on an indemnity basis reserved for further consideration if and when the appeal proceedings recommence before the Appeal Panel 2. Respondent's Application under s 88 of the Administrative Decisions Tribunal Act 1997 for its Costs in respect of the Further Proceedings before the Tribunal below. Referred to the Tribunal below for consideration by the Tribunal in due course. REASONS FOR DECISION DELIVERED EX TEMPORE 9 NOVEMBER 2007 PRESIDENT: 1 The appellants have before the Appeal Panel a wide-ranging notice of appeal challenging the decision of the Equal Opportunity Division of the Tribunal in Burns v Radio 2UE and Ors [2004] NSWADT 267 (22 November 2004). The appellants are a company which runs a radio station and two of its presenters, Mr Price and Mr Laws. The conduct found to be unlawful is conduct on the part of Mr Price and Mr Laws. The company is liable vicariously. 2 The hearing of the substantive appeal has been long delayed, principally by reason of a failed preliminary application by the appellants to have the Appeal Panel address the issue of the constitutionality of the State provision which they were found to have contravened (Anti-Discrimination Act 1977 (ADA), s 49ZT): Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349. 3 This ruling deals with a further application in the nature of a preliminary application. The appellants have applied to the Appeal Panel to grant leave, exercising the power conferred by s 113(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act), to extend the appeal to a review of the merits of the appealable decision. The appellants have asked that this be done without there being any consideration of the substantive points of appeal. 4 The application is a most unusual one. The essential ground for the application is that the two presenters, Mr Price and Mr Laws, did not understand the legal implications for them of not giving direct evidence to the Tribunal below in relation to their conduct, and as a result were deprived of the opportunity to properly defend the complaint. Mr Price and Mr Laws say that had they known it would have assisted their case to have given direct evidence in relation to their conduct they would have done so. 5 As the law now stands, it is clear that direct evidence from the makers of statements impugned as incitement of others to severe ridicule of homosexuals may be taken into account in relation to, at the least, one aspect of the exception to a finding of contravention allowed by s 49ZT(2). There was some debate before us as to what the state of the law on this point was at the time of the hearing. We do not think it necessary for today's decision to reach a view on that matter. We also accept that Ms Ronalds in her submissions actively flagged the potential significance for the appellants if they failed to give evidence going to the defence (that is, an adverse finding). 6 The company, Mr Price and Mr Laws were represented in the proceedings by experienced practitioners of standing. The application is not one to have fresh evidence admitted. The evidence was always available. Mr Price and Mr Laws failed, they say through no fault on their part, to put it on. 7 The appellants have dismissed their earlier legal team. They now have another firm of solicitors advising them, and fresh counsel. 8 We are conscious that in litigation represented parties frequently make strategic choices as to how cases are presented. We are, of course, very reluctant to have the Appeal Panel engage in any kind of collateral inquiry into the strategic choices that litigants make. 9 The evidence before the Tribunal as to Mr Price's and Mr Laws' conduct comprised an audio tape of the relevant conduct – statements and comments made by each of them – and to a video tape of the television program that had given rise to those comments. 10 In support of the present application, the appellants have put on documentary evidence setting out the file notes of discussions with them or the company in-house counsel about what was required of them in relation to the hearing before the Tribunal below. Privilege has been waived. Mr Price and Mr Laws filed short affidavits denying that they ever understood that it would be helpful to their cases if they gave direct evidence. They were cross-examined on those affidavits. 11 The Appeal Panel is satisfied on the basis of the evidence led before it, and on the balance of probabilities in that regard, that Mr Price and Mr Laws were not apprised of the availability of a defence based on s 49ZT(2) and of the relevance of direct evidence to the making out of that defence. We accept that Mr Price and Mr Laws, perhaps not unusually, left it to their lawyers to decide how to run the case. We accept also, however, that their evidence is genuine when they say had they known it would assist to give direct evidence they would have done so. 12 In these circumstances, through no fault on the part of the Tribunal, they were deprived of an opportunity to be heard on a matter of importance. 13 Ms Ronalds for the respondent submitted that if we were inclined to accept the appellants' claim that they had been denied an opportunity to be heard, we should not exercise the discretion to extend to the merits. We have before us the statements that Mr Price and Mr Laws would make going to the matters upon which they say they can give direct evidence that are raised by s 49ZT(2), i.e. reasonableness, good faith and public interest purpose. 14 Ms Ronalds submitted that the statements were such that it could not reasonably be considered that Mr Price and Mr Laws had any reasonable prospects of success, based on that evidence, of satisfying the defence. In that regard it is to be noted that the onus of proving the defence lies on the appellants: s 104, ADA. 15 Mr Blackburn for the appellants submitted that the 'reasonable prospects of success' inquiry was not one that the Appeal Panel should engage in at the point of deciding whether to extend to the merits. It is a matter that only should be considered once leave is given, and full evidence is put on, and submissions heard. 16 In our view some consideration of the strength of the case to be put by the applicant for extension to the merits is appropriate and relevant to the exercise of the discretion. We do not wish on this occasion to develop this point any further. 17 In this instance the Tribunal proceeded as it had to without any direct evidence going to the defence. It divided its consideration of the position of Mr Price and Mr Laws by reference to each of the three points (all of which must be established) – public interest purpose, good faith and reasonableness. In that regard at a number of points the Tribunal expressed conclusions as to the likely state of mind or awareness of matters on the part of Mr Price, and to a lesser extent, of Mr Laws. These are conclusions going to their subjective state. In these circumstances, therefore, we think the just course is to grant the application to allow their evidence on their subjective state to be heard. 18 The next question is whether the Appeal Panel retains the matter and engages in the assessment of the further evidence or remits the inquiry to the Tribunal below, similarly constituted or differently constituted. 19 The main consideration favouring leaving it with the Appeal Panel is expedition. The proceedings have been with the Tribunal for a long time. 20 The difficulty is that this Appeal Panel now has before it two appeals involving substantially the same parties in which important questions of law are raised in relation to the construction and application of the homosexual vilification provisions. Were this Appeal Panel to embark on a limited merits inquiry it may place at risk the ability of this Appeal Panel to continue to deal with the appeals on the other points. 21 We are also mindful of the points made by Ms Ronalds that her client would, if the defences succeed on reopening, be deprived of the practical right of appeal allowed by the ADT Act to the Appeal Panel, and left only with the narrow and relatively impractical right of appeal that lies between the Appeal Panel and the Supreme Court. 22 These considerations favour remittal. 23 We will hear the parties on what directions might be given in relation to remittal, the subject matter of the remittal, and make, if thought necessary, a further ruling as to the costs of the respondent in line with that given in July at a directions hearing. 24 [The Appeal Panel invited the parties to prepare minutes of Orders. The Orders, set out in the cover sheet to these reasons, were issued on 20 November 2007.] 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.