Ekermawi v Jones and Harbour Radio Pty Ltd [2013] NSWADT 79

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Ekermawi v Jones and Harbour Radio Pty Ltd [2013] NSWADT 79 Hearing dates: 26 March 2013 Decision date: 17 April 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The applicant's application to amend the complaint is refused. 2. The respondents' application for costs is refused. 3. Matter listed 1 May 2013 at 3 pm to set timetable for the filing and service of further material unless parties agree to a timetable prior to that date. Catchwords: EQUAL OPPORTUNITY - complaint of racial vilification - application to amend complaint to include entire broadcast or further specified comments in the broadcast - transcript of broadcast tendered - alternative applications made - whether fair to award costs Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280 Category: Interlocutory applications Parties: Sam Ekermawi (Applicant) Alan Jones (Respondent) Harbour Radio Pty Ltd t/as Radio 2GB (Respondent) Representation: Counsel P Batley (Applicant) K Eastman SC (1st and 2nd Respondents) Legal Aid (Applicant) Baker & McKenzie (1st and 2nd Respondents) File Number(s): 101021

REASONS FOR DECISION

Introduction 1Mr Ekermawi has complained that three comments made by Alan Jones when broadcasting on Radio 2GB during the morning of 8 December 2005, constitute racial vilification. Mr Ekermawi's complaint to the Anti-Discrimination Board was prompted by an article published by a journalist, David Marr, on 13 December 2005 which quoted the three comments. 2Mr Ekermawi now applies to amend his complaint to include the entire program (Breakfast with Alan Jones). The Tribunal may amend a complaint to include additional complaints and anything else that was not included in the complaint as investigated by the President of the Anti-Discrimination Board: Anti-Discrimination Act 1977 (AD Act), s 103. 3I refuse the application to amend because Mr Ekermawi is not alleging that everything Mr Jones said during the entire program constitutes racial vilification. The context in which the three comments were made is relevant when determining whether those comments breach the racial vilification provisions of the AD Act. But the context can be taken into account without amending the complaint to formally include the entire program. 4Mr Ekermawi's alternative application was that the complaint should be amended to add further specific comments that Mr Jones made during the program. Mr Ekermawi's lawyer sought to tender a transcript of sections of the program identifying further comments. The respondents opposed that application firstly because they were not on notice that it was going to be made and secondly because they objected to the transcript of the program being admitted. I upheld that objection because the origin and veracity of the transcript had not been established. 5Mr Ekermawi's lawyers then submitted that the Tribunal should allow the complaint to be amended by the addition of unspecified further comments to be identified in Amended Points of Claim. I reject that application because unless the additional comments are identified, I cannot assess whether or not they are likely to breach the racial vilification provisions. 6Consequently the primary and both the alternative applications for amendment are refused. There is no need to address the respondents' submissions that the application for amendment is an abuse of process or that the application for amendment should be refused because of undue delay. 7In the rest of the decision I provide some background information about the transcript and say why I refused to accept it into evidence for the purpose of the amendment application. Finally I address and reject the respondents' application for costs.