Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 (20 March 2009)

Last Updated: 23 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143


JURISDICTION:


FILE NUMBER(S):
30044/08

HEARING DATE(S):
26 February 2009

JUDGMENT DATE:
20 March 2009

PARTIES:
Plaintiff - Sam Ekermawi
First Defendant - Administrative Decisions Tribunal of New South Wales
Second Defendant - Alan Jones
Third Defendant - Harbour Radio Pty Ltd

JUDGMENT OF:
Schmidt AJ

LOWER COURT JURISDICTION:
Administrative Decisions Tribunal of New South Wales

LOWER COURT FILE NUMBER(S):
071118

LOWER COURT JUDICIAL OFFICER:
Hennessey DP

LOWER COURT DATE OF DECISION:
20 March 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Ekermawi v Jones & anor [2008] NSWADT 93

COUNSEL:
Plaintiff - Mr P Batley, counsel
Second and Third Defendants - Ms R Graycar, counsel

SOLICITORS:
Plaintiff - Steve O'Connor of Legal Aid Commission of NSW
Second and Third Defendants - Stuart Thomas



CATCHWORDS:
ADMINISTRATIVE LAW - judicial review - s 69 of the Supreme Court Act 1970 - two complaints - racial vilification broadcasted on air - whether Tribunal applied wrong test to determine whether leave to proceed with the complaints should be granted - whether Tribunal denied plaintiff natural justice - obligation imposed on plaintiff to establish 'substantial reasons' for leave to be granted - error warranting review established - natural justice denied - orders

LEGISLATION CITED:
Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1977
Broadcasting Services Act 1992 (Cth)
Legal Profession Act 2004
Supreme Court Act 1970

CATEGORY:
Principal judgment

CASES CITED:
Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339
An v Nichigo Press Pty Ltd [2005] NSWADT 164
Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] ADT 24
Catch The Fire Ministries Inc and Ors v Islamic Council of Victoria Inc and Anor [2006] VCSA 284
Commonwealth of Australia v Diston [2003] NSWCA 51
Deva v University of Western Sydney [2008] NSWCA 137
Ekermawi v Jones and Anor [2008] NSWADT 93
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Italiano v Carbone & Ors [2005] NSWCA 177
IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572
Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26
Salido v Nominal Defendant (1993) 32 NSWLR 524
Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349
Xu v Sydney West Area Health Service [2006] NSWADT 3

TEXTS CITED:


DECISION:
1. The decision of the Tribunal of 20 March 2008 is quashed.
2. The matters are to be remitted to the Tribunal.



JUDGMENT:

- 32 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADMINISTRATIVE LAW LIST

SCHMIDT AJ

Friday, 20 March 2009

30044/08 SAM EKERMAWI v ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES & ORS

JUDGMENT

1 HER HONOUR: By summons of 9 May 2008 the plaintiff seeks judicial review of a decision of the Administrative Decisions Appeal Tribunal ('the Tribunal) on referral from the Anti-Discrimination Board ('the Board'). In September 2007, pursuant to s 92(1) of the Anti-Discrimination Act 1977 (‘the Act’), the President of the Board declined to proceed with the plaintiff’s complaints of alleged racial vilification. In March 2008, under s 96 of that Act, Hennessey DP refused the plaintiff leave to proceed with his complaints.

2 By an amended summons filed without objection at the hearing, the relief which the plaintiff seeks was limited to an order that the Tribunal’s decision be quashed. It was common ground that the Court could make such an order under s 69 of the Supreme Court Act 1970, if it came to the view that either of the plaintiff's two complaints were established. They were firstly, that the Tribunal had applied the wrong test to determine whether leave to proceed with the complaints should be granted and secondly, that the Tribunal had denied the plaintiff natural justice in refusing to grant leave.

3 The plaintiff had alleged in his complaints to the Board that Mr Alan Jones and the radio station 2GB had vilified Muslim and Middle Eastern people during a broadcast aired on or about 8 December 2005. The complaints were lodged with the Board in October 2006. Further information about the complaints were sought from the plaintiff. That information was provided and in January 2007, the Board notified the second and third defendants of the complaints, brought under s 20C of the Act. The section provides:

20C Racial 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 race 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 on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

4 Responses to the allegations made and other information was sought from the defendants. In July 2007 a response was provided to the Board by Macquarie Radio Network, in which it denied the complaints and sought to put the statements and comments complained about, into context. The Board sought further information from both the plaintiff and the defendants and on 13 September 2007, the President advised the plaintiff that his complaints had been declined as lacking in substance. The reasons given were:

· The complainant was out of Australia at the time the alleged racially vilifying comments/statements were made and only heard of isolated extracts of the broadcast via the internet. The complainant did not provide information regarding the immediate context or context of the program as a whole in which they were made.

· The respondent provided information regarding the context in which the particular comments/statements were made which were verified by transcripts of the broadcast. In context the comments/statements appeared to alter their worth.

· The Board is of the view that some of the broadcast would be considered as promoting severe hatred and serious contempt for people of Middle Eastern or Lebanese background or of the Muslim faith.

However, applying the objective test for incitement based on case law, the specific alleged comment/statements within the immediate context are unlikely to meet the requirements for racial vilification under sections 20B and 20C of the Anti-Discrimination Act 1977 (NSW).

5 The plaintiff exercised his right under s 93A of the Act to have the complaints referred to the Tribunal. Leave to proceed with the complaints was refused, even though Hennessey DP concluded that ‘it cannot be said that the complaint is so lacking in substance that it has no reasonable prospects of success’. (See Ekermawi v Jones and Anor [2008] NSWADT 93 at [15]). The view taken was that there were other reasons for refusing the leave sought, namely that:

22 Lebanese people and people from a Middle Eastern background were the subject of the comments made by Mr Jones. Mr Ekermawi as an individual was not the target. Consequently I have assumed that any damages he may have suffered would be no more or less than the damage suffered by any other member of the group. In my view, the argument that the complaint should proceed so that Mr Ekermawi can potentially recover any damage that he has suffered is a relatively weak one. In the particular circumstances of this case, neither compensation to Mr Ekermawi, nor an apology, would significantly remedy the effect of the respondent’s conduct. In my view, the most effective way of remedying the conduct, if it does breach the AD Act, is for Radio 2GB to develop and implement a training program aimed at eliminating racial vilification in the future. As it is in the process of doing so, leave should be refused for Mr Ekermawi’s complaint to proceed.

6 In determining whether leave to proceed should be granted, Hennessey DP applied the approach she had developed in Xu v Sydney West Area Health Service [2006] NSWADT 3 (at [4] to [5]) which required that a plaintiff establish a substantial reason for leave to be granted. The plaintiff challenges the correctness of that approach, arguing that the correct approach was that earlier adopted by Hennessey DP in An v Nichigo Press Pty Ltd [2005] NSWADT 164, where it was concluded that ‘where the President has declined a complaint as lacking in substance, the Tribunal should only refuse leave in a clear case’ (at [7]).

The decision in Xu

7 In Xu the Tribunal was also concerned with an application for leave to proceed with a complaint brought under s 96(1) of the Act. The basis on which the President might decline a complaint is specified in s 92. The Act does not specify the basis on which the Tribunal may grant leave to proceed, s 96 merely providing:

96 Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91 (2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

8 After considering the history of the legislation and various leave provisions in other State and Federal legislation, Hennessey DP concluded:

16 It is not generally appropriate for the President to decline a complaint as lacking in substance where there is a serious question of fact to be determined or where a serious question of credit is involved. (Spellson v George (1992) 26 NSWLR 666.) Importantly, if factual issues are likely to be affected by evidence in the possession of the respondent, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1.)

17 The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.

18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

The parties’ cases

9 It was the plaintiff’s case that Xu had been wrongly decided, Hennessey DP there misconstruing both the Act and the nature of the function the Tribunal was performing, when considering an application for leave under s 96.

10 It was further argued that while it was held in Xu that the Tribunal's discretion was unfettered and should not be constrained by rigid rules or criteria, nevertheless, such a rule was then effectively imposed by the adoption of the requirement that the complainant had to show a ‘substantial reason’, in order for leave to be granted. In coming to that conclusion, analogies were drawn with the approach adopted by the Federal Court to appeals from decisions of the Federal Magistrates Court, where leave to appeal was also required. This was submitted to be a superficially attractive, but erroneous approach, which could not hold on proper examination.

11 This was because a first instance decision of a court to summarily dismiss a complaint, is a judicial decision made after an adversarial hearing, guided by the approach of the High Court in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129. That approach required the conclusion that the matter was so obviously untenable, that it could not succeed. A decision made by the President of the Board involved no such contest and required no such certainty. It was rather an administrative decision, not reviewable or appealable.

12 The policies underlying the approach adopted by courts to leave to appeal interlocutory decisions of courts, did not to apply to complaints referred to the Tribunal for consideration as to whether leave to proceed should be granted, when they had been dismissed by the President. Those principles were concerned with the proper administration of justice, cost and delay, which did not arise for consideration in this statutory context.

13 In Xu, Hennessey DP had also not given consideration to authorities which showed that leave will more readily be given by courts in interlocutory decisions which finally determine the parties’ rights. Various other legislative analogies not considered in Xu provided better guidance to the approach to be adopted to the question of leave under s 96, it being argued that what was required of the Tribunal when considering leave, was a consideration of the subject matter, scope and purpose of the legislation, which was remedial (see IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696 at 702) and the justice of the application for leave.

14 This approach was required because the discretion to grant leave was an unlimited discretion, in which case the question for the decision maker is whether it would be just in all of the circumstances to grant or refuse the application. (See Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532.)

15 It was further argued that the President’s power to decline to continue an investigation into a complaint, even without a conciliation being conducted, enabled the President to make a judgment having regard to the objects of the Act and the interests of the parties, as to whether the resources of the President should continue being used, with the respondent being required to continue to participate in that process. The President’s decision was made without the benefit of evidence or argument and was not reviewable in a legal sense. By way of contrast, the Tribunal, on referral was dealing with an adversarial contest, in which the legal effect of its refusal of leave, namely, to deprive the complainant of the legal redress established by the legislature, had to be considered.

16 By creating the requirement that a complainant must establish a ‘substantial reason’ for leave to proceed, the Tribunal had created a requirement which altered the meaning and effect of s 96 of the Act and imposed a larger barrier to a complainant, than the legislature had intended. The reference in Hennessey DP’s decision to s 347 of the Legal Profession Act 2004, which has the purpose of containing unmeritorious claims for damages for personal injuries, was but another part of the foundation of this inappropriate barrier.

17 The approach in An, it was argued, was the correct one, namely that leave would only be refused in a clear case. Here, the Tribunal had concluded that the plaintiff’s claim was not so lacking in substance that it did not have reasonable prospects of success. Instead of granting leave thereupon, the Tribunal’s focus on the requirement that the plaintiff had to show a substantial reason for the complaint to proceed, led it to consider other criteria available to the President for declining leave under s 92. In so approaching the question of leave, the Tribunal had erred. The Tribunal ought to have confined its consideration to the ground identified by the President, in declining to proceed with the complaint.

18 This approach, it was submitted, had led the Tribunal into its second error. It took account of a process which was not concerned with the complaint before the Tribunal, but involved the exercise of the Australian Communications and Media Authority's ('the ACMA') functions under the Broadcasting Services Act 1992 (Cth). That exercise was not concerned with the complaints of unlawful discrimination advanced by the plaintiff, but rather with the radio station’s license and whether it had breached a statutory Code of Conduct by various broadcasts. It followed that the proposal by the radio station to implement a compliance program to resolve issues identified by the ACMA, could not remedy the plaintiff’s complaint to the Board. An inquiry into possible breaches of a radio license and an inquiry into a complaint under the Act, could not, even by way of analogy, give rise to principles of finality and non duplication of litigation. (See Deva v University of Western Sydney [2008] NSWCA 137.)

19 Given the way in which this issue was approached by the Tribunal, the result was that it had failed to afford the plaintiff natural justice, as required by s 73 of the Administrative Decisions Tribunal Act 1977, which governed the procedures adopted at the hearing (see s 95(3) of the Act). It was apparent from the Tribunal’s decision that the plaintiff did not appreciate the case being advanced by the defendants in relation to the ACMA findings. The Tribunal ought to have taken steps to inform the plaintiff of the nature of that claim and the implication that the Tribunal might determine the question of leave adversely to the plaintiff, on the basis of the ‘more appropriate’ remedy ground. The plaintiff had been deprived of an opportunity to address on that ground (see Italiano v Carbone & Ors [2005] NSWCA 177).

20 The defendants’ case was that there had been no reviewable error amenable to this Court’s supervisory jurisdiction, in relation to any of the complaints advanced. The Tribunal had not erred in applying the test established in Xu, or rejecting the earlier test established in An.

21 The defendants argued that the Tribunal’s role in a s 96 leave application was not simply one of appeal or review of the decision of the President. The discretion to grant leave was a broad one, with the result that in determining the question of leave, the Tribunal had not erred in considering the arguments advanced by the defendants as to other bases available to the President under s 92 of the Act, for determining that a complaint should not proceed.

22 The basis upon which the Tribunal came to the view that the ACMA process and its outcome was an effective response to the plaintiff’s claim of racial vilification, was that of the Court of Appeal’s test in Deva, namely determining what the subject matter of the plaintiff’s complaint was. The answer in this case was racial vilification. That was what the ACMA was also concerned with. The conclusion reached that leave should be refused given the ACMA process and what had emerged from it, was entirely open to the Tribunal in all of the circumstances and involved no error of the kind which could result in the relief sought.

23 As to the complaint that natural justice had been denied to the plaintiff, it was argued that it was he who had introduced the ACMA process at the hearing, relying on the report to support the submission that he had a basis for his complaint as to racial vilification. It was in that context that the defendants had argued that account should also be taken by the Tribunal of the remedy which had flowed from the ACMA process, in determining whether leave should be granted. In permitting that course, the Tribunal had not fallen into any error.

24 The plaintiff had been given an opportunity to respond to the written submissions which the defendants had been permitted to file. He was an unrepresented litigant. That he was confused as to what had occurred at the hearing, was not a basis for concluding that he had been denied natural justice, as he now complained.

Consideration

Did the plaintiff have the obligation to establish a ‘substantial reason for leave to be granted’?

25 The obvious starting point for a consideration of whether the Tribunal fell into error in requiring the plaintiff to establish a ‘substantial reason for leave to be granted’, the test established in Xu, is to observe that such an obligation is not imposed by s 96 of the Act. It gives the Tribunal an unfettered discretion to grant leave. How is that discretion to be exercised?

26 The Act gives the President a wide investigative role in relation to complaints of unlawful discrimination, as well as a wide discretion to decline a complaint, even before an investigation is concluded. These are administrative functions, the latter to be undertaken in accordance with s 92 of the Act, which, in addition to the various identified bases upon which a decision to decline a complaint might rest, gives the President a power to make such a decision ‘for any other reason’.

27 Until amendment of the Act in 2005, complainants had the right to refer their complaints to the Tribunal, if declined by the President. The Tribunal was then required to deal with the complaint. That right was curtailed by the 2005 amendment which introduced the leave requirement in s 96. On its face, the discretion to grant leave is unfettered. The plaintiff, nevertheless, argued that it was a discretion which had to be confined to a consideration of the basis upon which the President had decided to decline the complaint, exercising the powers granted by s 92. This followed logically, it was argued, from the scheme of the Act, especially the provision made in s 102, which also grants the Tribunal a power to dismiss a complaint, once leave has been granted under s 96. That section provides:

102 Tribunal may dismiss complaint

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

28 I am satisfied that the Tribunal’s apparently unfettered discretion in relation to leave is not confined in the way argued for the plaintiff. The reliance on s 102 does not comfortably lead to the construction contended for. To the contrary, the provision made in s 102 militates against the fettering of the s 96 discretion, that being a limitation not apparent on the face of the section. Had it been intended that in considering an application for leave, the Tribunal was confined to a consideration of the basis upon which the President had declined the complaint, the section could have said so directly. That it does not, militates against the construction urged, as does a consideration of the consequences of such an approach to the statutory scheme. If the legislation were so construed, it would lead to odd outcomes, which can readily be illustrated. Section 92 provides:

92 President may decline complaint during investigation

(1) If at any stage of the President’s investigation of a complaint:

(a) the President is satisfied that:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2) The President, in a notice under this section, is to advise the complainant of:

(a) the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.

29 A respondent could urge the President to decline a complaint, because, for example, it had no substance and because the conduct, if proven, could not disclose a contravention of the Act, grounds provided in s 92(1)(a)(i) and (ii)). If the construction of the section urged by the plaintiff were accepted, it would follow that if the President’s reasons for declining the complaint rested only on one of the two points which the respondent had raised, the respondent would then be precluded from relying on both grounds before the Tribunal, in seeking to resist a complainant’s application for leave brought under s 96. Despite this restriction, if leave to proceed were then granted by the Tribunal, the defendant in the proceedings would then immediately be able to ask the Tribunal to dismiss the complaint under s 102, on the very basis that it was precluded from relying on, in relation to the question of leave.

30 That would be an odd and cumbersome process to impose on the Tribunal and the parties to such leave applications, one that the words of s 96 do not hint at. Instead, the section leaves the Tribunal's discretion at the point of leave, entirely unfettered. To adopt the approach urged in this respect, would also be inconsistent with the argument otherwise advanced by the plaintiff as to the proper construction of the section. I turn to that issue.

31 There can be no question that the discretion granted by s 96 has to be exercised by the Tribunal, having in mind the purpose of this legislative scheme, remedial as it undoubtedly is. The scheme also, however, has introduced the possibility that a complaint will not be considered on its merits, either because the President has refused to proceed with the complaint and the complainant does not challenge that decision, or because leave is sought of the Tribunal, but is refused.

32 In considering an application for leave, the Tribunal obviously has to have in mind that refusal of such leave will finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights, as the High Court considered in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349. A plaintiff refused leave will be deprived of the right to pursue a discrimination complaint. That situation is ordinarily one in which a cautious approach is adopted to a refusal of leave. In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572, for example, it was observed:

43 Artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question - Carr at 248 (Gibbs CJ) 256 (Mason J). But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties "... a prima facie case exists for granting leave to appeal" - Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 400; Minogue v Williams [2000] FCA 125 at par 18. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance - Little v State of Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).

33 It must also be considered that leave to proceed is being sought of the Tribunal in circumstances where the President’s decision to decline the complaint was an administrative decision, not one made by a court upon whom the approach of the High Court in General Steel, is imposed. That test is that a claim will only be dismissed without hearing in circumstances where there is no reasonable cause of action disclosed on the pleadings and where it is clear that the plaintiff’s case is so untenable, that it cannot succeed. While there will be such circumstances in which the President declines a complaint, they are not, however, the only circumstances in which the President may do so under s 92.

34 It is against that background that the plaintiff’s complaint must be considered. That complaint was that the requirement established in Xu, that a plaintiff must demonstrate a ’substantial reason’ for leave being granted, did more than merely indicate that the usual onus falls on a plaintiff to establish that the discretion to grant leave should be exercised in the particular circumstances before the Tribunal. That formulation, it is complained, had the result of putting a gloss on the discretion, thereby imposing a higher obligation on a plaintiff, than the section which granted the unfettered discretion to grant leave, itself envisaged.

35 I am satisfied that this aspect of the plaintiff's case must succeed. The section does not itself require that a plaintiff establish a ’substantial reason’ for leave being granted. It is not for the Tribunal to erect such a requirement.

36 I do not, however, accept the plaintiff’s argument that the approach which should have been adopted was that discussed in An, namely that leave will be granted only in a 'clear case'. Any gloss on the unfettered discretion ought to be avoided. In my view, the question of leave should be approached by the Tribunal in the same way as discussed by the Court of Appeal in Salido. There the Court of Appeal was concerned with an unfettered discretion to grant leave under the Motor Accidents Act 1988. The trial judge had accepted an argument that an applicant for leave had to 'show something truly special or extraordinary before leave should be given’. Gleeson CJ observed at 531-2:

With all respect to the argument that was put to Clachan DCJ and accepted by him, the proposition that leave under s 52(4) should not be given lightly is one that provides little assistance. It cannot be intended to be taken literally; what kind of judicial discretion would be exercised lightly? Presumably its forensic purpose is cautionary, and one can hardly take exception to that. Even so, proceeding with all proper caution, the court must exercise the statutory discretion in a judicial manner. The proposition that an applicant "must show something truly special or extraordinary" adds a gloss to the statute which alters its meaning and effect. It is true that, in Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 445, Windeyer J, in a similar context, approved of a statement that said that a discretion could only be exercised where there are special circumstances which create a real reason why the statutory limitation should not take effect. However, his Honour referred to that proposition in the course of pointing out that time-limits are prescribed for a purpose and, to set them aside, there must be something more than a belief that no harm might come of doing so. I see no reason to characterise the circumstances that might, in a given case, justify leave under s 52(4) as necessarily extraordinary, or truly special. The question is what is fair and just. To take a simple example, delay in the onset of symptoms is a circumstance that might make it equitable to grant leave to commence proceedings out of time. Such delay happens from time to time, and in many cases it would be inappropriate to describe it as extraordinary, or truly special. It is true that the exercise of the discretion is to be approached on the basis that the onus is on the applicant to show why it is fair and just that in his or her case there should be a dispensation from a general rule established by the statute. Nevertheless, the statute recognises that there may be cases where it is fair and just to grant such a dispensation, and the applicant should not be required to bear some additional forensic burden of indeterminate nature and unquantified weight.

37 That approach has been followed in later cases, (see for instance Commonwealth of Australia v Diston [2003] NSWCA 51) and, it seems to me, is one which must be followed in the context of this statutory scheme. That conclusion is reinforced by the consideration that all proceedings before the Tribunal, including these in which applications for leave are being considered, must be conducted in accordance with the requirements of s 73 of the Administrative Decisions Tribunal Act, which provides:

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

(h) may reinstate proceedings that have been dismissed because of an applicant’s failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.

(6) A judicial member may:

(a) hold a directions hearing in relation to any proceedings before the Tribunal, or

(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.

38 The emphasis in s 73(3) on 'equity, good conscience and the substantial merits of the case', is an emphasis entirely consistent with approaching the question of leave on the basis of identifying whether it is fair and just to grant or refuse the leave sought in the particular circumstances in which the application for leave to proceed with a complaint comes forward. That requires the position of both parties to be considered. Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

39 That approach also accords, in my view, with that of the Court of Appeal in Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26, recently applied in Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339. There it was observed at pp 29 - 31, in relation to the predecessor to s 73 of the Administrative Decisions Tribunal Act:

Section 108(1)(b) of the Act provides:

"(1) For the purposes of any inquiry, the Tribunal —

(a) ...

(b) shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms."

The precise effect of this section is not immediately clear. Section 118(1) provides that a party aggrieved by a decision of the tribunal may appeal to the Supreme Court on a question of law and subs (3) provides that the Court shall hear and determine the question of law arising on the appeal and may make such order in relation to the appeal as to it seems fit. It is apparent therefore that s 108(1)(b) does not release the tribunal from the obligation to apply rules of law in arriving at its decisions. If that had been the effect of s 108(1)(c) there would have been no point in conferring a right of appeal to the Supreme Court on a question of law. The apparently conflicting provisions must, as a matter of construction, be reconciled: compare Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia (1960) 104 CLR 437 at 454-455. The position may be otherwise where a tribunal is under a duty to act according to equity and good conscience, but its decisions are not subject to appeal on questions of law: compare W H D Winder, "The Courts of Requests" (1936) 52 LQR 369-394 and O Howard Beale, "Equity & Good Conscience" (1937) 10 ALJ 349.

A similar conflict arose between s 36(3) of the Workers' Compensation Act 1926 in its original form which provided that decisions of the commission "shall be upon the real merits and justice of the case, and it shall not be bound to follow strict legal precedent" and s 37 which provided for an

appeal on a question of law to the Supreme Court. In Thomas v Airlines of NSW Pty Ltd (1964) 64 SR (NSW) 176; 81 WN (Pt 2) (NSW) 213, Sugerman J said with reference to these provisions (at 185; 220):

"... Section 36(3) may be taken as requiring that the commission shall proceed according to the real merits and justice of the case in applying the provisions of the statute to each particular set of circumstances which comes before it for decision; perhaps the provision that it shall not be bound to follow strict legal precedent is a direction to it that in

performing this task it is not to regard itself as bound by supposed rules derived from previous decisions on similar, but not identical, sets of circumstances. But s 36(3) does not, in my opinion, empower the commission to decline to give effect to the provisions of the Workers Compensation Act ... not does it authorize the commission to transcend the powers which are conferred upon it by the Act."

The words "equity, good conscience and the substantial merits of the case" are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found: see generally, Santos Ltd v Saunders (1988) 49 SASR 556 at 564 per Legoe J. In some circumstances

the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; Ex parte Moses [1896] AC 245.

In other contexts such words have been construed as requiring the tribunal to apply the ordinary law. Section 7 of the now repealed Small Debts Recovery Act 1912 provided that the Small Debts Court should hear and determine civil actions for the recovery of small debts "in a summary way,

and according to equity and good conscience". In Ex parte Herman; Re Mathieson (No 1) (1959) 78 WN (NSW) 6 at 9; [1961] NSWR 139 at 1142, Kinsella J said:

"... I am not sure what the magistrate meant to imply in using the words 'according to equity and good conscience' in his brief judgment, but I am clearly of opinion that as used in s 7 of the Small Debts Recovery Act they do not give the court power to depart from established principles of law nor do they give it power to dispense justice otherwise than according to law."

In a very different context in the former British India the words were interpreted as a direction to the courts to apply English law if applicable to Indian society and circumstances: see Waghela Rajsanji v Shekh Masludin (1887) LR 14 Ind App 89 at 96 and compare Barlow v Orde (1870) LR 3 PC

164.

In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the tribunal from its duty to apply the general law in deciding the issues raised by the defences of release by deed.

40 In this case, it is apparent that had the question of leave been approached by the Tribunal on the basis discussed in Salido, namely that leave had to be granted, or refused, depending on what was fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted, a different conclusion may have been reached to that which flowed from a consideration of whether the plaintiff had established a substantial reason for leave being granted.

41 That possibility cannot be excluded, given the conclusion that while the applicant had succeeded in demonstrating that his complaints did not lack substance, yet still leave was not granted in relation to either complaint, because of the view reached by the Tribunal that ‘the most effective way of remedying the conduct, if it does breach the AD Act, is for Radio 2GB to develop and implement a training program aimed at eliminating racial vilification in the future. As it is in the process of doing so, leave should be refused for Mr Ekermawi’s complaint to proceed.’

42 It was common ground between the parties that at the hearing before the Tribunal it was the plaintiff who had provided the September 2004 Commercial Radio Australia Ltd Code of Practice and Guidelines and the ACMA Investigation Report No 1485, upon which he relied, to show that his complaint of unlawful discrimination had substance. The plaintiff succeeded in making out that point.

43 That report concluded that on 8 December the licensee of 2GB, Harbour Radio Pty Ltd had breached clause 1.3(e) of the Code of Conduct which bound it, in that it had broadcast a program which was likely to vilify people of Middle-Eastern background on the basis of ethnicity and that the program was not presented reasonably and in good faith, for one of the purposes specified in clause 1.4 of the Code.

44 In the report the ACMA noted that the complaints it was dealing with had raised breach of s 20C of the Act. It accordingly considered whether failure to comply with that provision of the Act might constitute a breach of the license condition specified by cl 8(1)(g) of Schedule 2 to the Broadcasting Services Act. That section was concerned with use of broadcasting services in the commission of an offence. The ACMA's view was that breach of s 20C of the Act not being an offence, but rather leading to a civil outcome, it followed that the license condition did not arise for consideration, with the result that the complaints about the broadcast were dealt with only under the Code and not as breaches of s 20C.

45 The Code was established under s 123 of the Broadcasting Services Act as a code of practice ‘to be applicable to the broadcasting operations’ of sections of the industry. Section 1.3(e) of the Code provides that ‘A licensee must not broadcast a program which:

(e) is likely to incite or perpetuate hatred against or vilify any person or group on the basis of age, ethnicity, nationality, race, gender , sexual preference, religion or physical or mental disability.'

46 The ACMA found breach of the Code established by the broadcast of 8 December, but its decision did not deal at all with the consequences of that breach. That issue was raised at the hearing by the defendants, who were given leave to provide further information to the Tribunal. The defendant later provided further material, but the plaintiff complained as to the inadequacy of what had been provided. In her decision, Hennessey DP concluded:

16 Radio 2GB submitted that leave should be refused because it has taken appropriate steps to remedy or redress the conduct. Details of those steps were provided in a submission to the Tribunal following the hearing. Mr Ekermawi made a submission in reply which suggests that he misunderstood the nature of the Tribunal’s directions at the hearing. The Tribunal reserved its decision and directed that the respondents provide details of any remedies agreed to with ACMA as a result of its findings. Contrary to Mr Ekermawi’s understanding, the Tribunal did not grant leave at the hearing. It is not appropriate for the Tribunal to make the orders suggested by Mr Ekermawi in his submissions.

47 It follows that there was no question that Hennessey DP expressly found that the plaintiff had misunderstood what had occurred at the hearing. From his submission, it was apparent that he understood that there had been an admission of guilt by the defendants, which had led the Tribunal to grant the leave to proceed which he sought, leaving only the question of remedy to be determined by the Tribunal. Putting that difficulty to one side, for the moment, in Xu it was observed at [16] that it would not generally be appropriate for the President to decline a complaint under s 92 where serious questions of fact or credit had to be determined, or where factual issues were likely to be affected by evidence in the possession of the respondent.

48 Despite being conscious of the plaintiff's misunderstanding of what had happened at the hearing, with the result that the plaintiff addressed no submissions to the question of leave in the context of what had flowed from the ACMA process, Hennessy DP went on to determine the question of leave. This was even though the plaintiff plainly did not have possession of evidence as to what steps had been taken by either defendant in relation to the ACMA report. The report itself did not deal with remedy. All that material was in the defendants' hands. The plaintiff was complaining that what had been provided by the defendant, was inadequate and contrary to the Tribunal's direction. Remedy was an issue raised at the hearing by the defendants, after the plaintiff had relied on the ACMA report, in order to demonstrate that his complaint had substance. It was the defendants who had argued that it was relevant to the Tribunal’s consideration of leave, to have regard to the outcome of the ACMA report, and so it was given an opportunity to put the relevant material before the Tribunal and the plaintiff was given an opportunity to respond.

49 That sequence of events leaves no doubt that the situation was one where the information which the defendants sought to rely on to convince the Tribunal that the plaintiff should not be granted leave, was entirely within their knowledge, not the plaintiff’s. Despite this being a situation in which the Tribunal in Xu had indicated that the President ought not to decline a complaint, yet it refused the plaintiff leave to proceed in those very circumstances, even when the plaintiff complained that adequate information as to remedy had not even been provided to the Tribunal, as it had ordered.

50 How the test imposed by the Tribunal could be met by a plaintiff in relation to information not even in the plaintiff’s hands, is difficult to see. Had the test applied by the Tribunal to the question of leave been that of determining what was fair and just in the circumstances before it, rather than imposing an obligation on the plaintiff to establish a substantial reason for leave being granted, it is difficult to see that leave would not have been granted in this situation.

51 Also to be considered is that this was not a case where the plaintiff had made the same complaint about alleged discrimination to another body, as well as the complaint made to the Board. Rather, here one of the defendants had faced other complaints made to the ACMA about the conduct which constituted the alleged discrimination. These complaints had put its broadcasting license into question. There was no suggestion that the ACMA proceedings were at all concerned with complaints made against the personal defendant, Mr Jones. The plaintiff’s complaint of unlawful discrimination against him appears to have been entirely overlooked by the Tribunal in the approach adopted to the question of leave. There was no separate consideration of that complaint and no reasons given as to why leave to proceed in relation to it, should be refused. That it was just to refuse leave to proceed in these circumstances, is difficult to see, but that does not arise for this Court's determination. What this situation does do, is to reveal the consequences of the adoption of an onus falling on the plaintiff 'to establish a substantial reason' for leave to proceed. Those consequences are inconsistent with the question of leave being determined on the basis discussed in Salido.

52 That observation then brings me to the second issue, the question of natural justice.

Was the Plaintiff denied natural justice?

53 I am satisfied that there can be no doubt that the plaintiff was not given a fair opportunity to present his case, given his patent misunderstanding that he was granted leave to proceed with his complaint at the hearing before the Tribunal. He understood the defendant had made a concession as to vilification and that the Tribunal was to consider remedy. As the result of that misunderstanding, the plaintiff directed no submissions to the question of leave by way of response to the defendants’ advice to the Tribunal as to the remedy which had resulted from the ACMA findings, namely a training programme voluntarily implemented by the radio station. All he did was to complain to the Tribunal about the inadequacy of the information provided by the defendants, seeking that further orders be made in that respect, before penalty was determined.

54 In his submission after the hearing, the plaintiff complained that the defendants had not complied with the Tribunal’s order that they ‘lodge a submission in the form of a full copy of the remedial action that to be provided from an expert in the field of discriminations and vilification that to be supplied to the ACMA and be implemented by all Macquarie radio network’. What had been supplied by the defendants was a letter advising that ‘a formal, voluntary undertaking’ to ACMA had been provided, in terms set out. The expert’s reports referred to in that undertaking, were not provided.

55 In his submission the plaintiff accordingly sought orders as to the supply of the reports, as well as orders requiring their implementation within 21 days, orders that the defendants and their employees desist from incitement of hatred and vilification; orders requiring the defendants to utilise the ‘kill switch' to stop persons from using the radio for such purposes; an on air apology and compensation.

56 Instead of the Tribunal advising the plaintiff of his misunderstanding, dealing with his request that further information be provided by the defendants and giving him the opportunity to respond to what had been advanced by the defendants as to leave, the decision was given. That, it seems to me, reveals relevant error, especially when it is considered that on the approach adopted by the Tribunal, the plaintiff had the obligation to establish that there was a substantial reason for leave to be given. That he was denied the opportunity to make such a case, in relation to the ACMA process and the steps taken by the defendants in response to it, is patent.

57 In Hennessey DP’s decision, the plaintiff's request was dealt with only on the basis that ‘it was not appropriate to make the orders suggested’. The complaint that the orders made by the Tribunal at the conclusion of the hearing, as to the production of the documents evidencing the steps taken by the defendants to remedy or redress the conduct complained of to the ACMA, had not been complied with, was not dealt with. Instead, the decision on leave was given without the plaintiff being advised of his misunderstanding and being invited to make submissions as to whether leave should be granted, notwithstanding the remedy which had flowed from the ACMA report.

58 In the event it is unarguable that the plaintiff was not given a fair opportunity to advance submissions as to those questions.

59 In Italiano v Carbone & Ors [2005] NSWCA 177, Basten JA observed:

88 An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant “lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”, as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.” : at [37].

60 As Einstein J put it:

148 Where as here, a complaint amounts to a denial of procedural fairness, the Court is not dealing with fairness as an abstract concept. As was put by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; [2003] 214 CLR 1 (at [37]):

"[Fairness] is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

61 I have found that the discretion as to leave, granted the Tribunal by s 96, is not confined to a consideration of the grounds on which the President had acted under s 92 and that the Tribunal did not err by reason of the mere fact that it considered other matters relevant to s 92. The discretion is unfettered. It follows that a defendant may argue that leave ought to be refused on grounds other than those upon which the President acted.

62 It follows, of necessity, however, if procedural fairness is to be afforded to a plaintiff in such a case, that the plaintiff must be given proper notice of such an argument and must be heard by the Tribunal on the ground which the defendant raises. The plaintiff’s complaint that he was denied this opportunity was made out.

63 It again needs to be observed that the information provided by the defendants after the hearing concerned steps the radio station had taken to ‘produce and implement a supplementary training programme for presenters and staff’ with the assistance of ‘an expert barrister in discrimination and vilification’. The information did not deal at all with any steps taken by the personal defendant, Mr Jones, although, as was accepted for the plaintiff, inferentially he would have been one of those intended to undertake the training devised. Whether that in fact occurred was not revealed in the information provided to the Tribunal.

64 The nature of the opportunity which the plaintiff was denied was amply revealed by what was advanced for the plaintiff in these proceedings. What the plaintiff was denied was a fair opportunity to advance submissions about the defendants' case in relation to the ACMA process. These submissions included that what the ACMA's own report showed was being considered, was not a complaint of unlawful discrimination. Rather, it was considering whether the broadcasts in question had breached the Radio Code of Practice 2004.

65 In Deva, the Court of Appeal considered ‘the true construction of the expression “the subject matter of the complaint” in s 92(1)(a)(v) of the AD Act.’ At, Tobias JA observed:

46 As I have indicated, the identification of the “subject matter of the complaint” for the purpose of s 92(1)(a)(v) must be determined in the context of those provisions of the AD Act which relate to conduct constituting unlawful discrimination. Section 87 defines a “complaint” as one made under s 87A which, in turn, refers to a complaint alleging that a person has contravened a provision of the Act.

66 Hennessey DP concluded that the complaints made to the ACMA, constituted ‘the same complaint’, because they dealt with some, although not all of the comments which the plaintiff had complained about to the Board. In coming to that view, the opportunity of which the plaintiff was deprived was the opportunity to make the obvious submission that his complaint was quite different to what the ACMA was dealing with.

67 Here, the situation was different to that being dealt with in Deva. There was no question here that the only complaints the plaintiff had made about the alleged discrimination were those which he made to the Board. His complaint was not at all concerned with the question of whether the radio station had breached the Code of Practice, in the broadcast he complained about. On the Court of Appeal’s approach in Deva, it was plainly arguable that these were not the same things at all.

68 The plaintiff also argued that he was given no opportunity to advance submissions to show that he had no remedy under the ACMA process, especially in relation to the complaint advanced against Mr Jones; that the compliance programme which had been implemented by the radio station could not remedy his complaints, but only the resolution of the breaches of the Code identified by the ACMA process; and that the appropriate remedy for the public vilification with which his complaints were concerned was the likewise public act of the defendants' broadcasting an apology, relying on the approach in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] ADT 24 and Catch The Fire Ministries Inc and Ors v Islamic Council of Victoria Inc and Anor [2006] VCSA 284.

69 Without hearing from the plaintiff, the Tribunal came to the view that what had been done by the defendants amounted to ‘a partial remedy’ so far as the plaintiff was concerned; that the ACMA proceedings would involve the defendants being ‘prosecuted twice’ for the same actions and were capable of satisfying the statutory provision in s 92(v). What the Tribunal did not have was any submissions about these matters from the plaintiff.

70 In their submissions, the defendants asked what the Tribunal was reasonably able to do in a situation such as this, where the plaintiff, an unrepresented litigant, had not understood what had occurred at a hearing. The answer, it seems to me, is that ignoring the difficulty was not an available response. That approach was not consistent with the requirements of natural justice or the express provisions made in s 73(2) and (4)(a),(b) and (c) of the Administrative Decisions Tribunal Act. Once the Tribunal had come to appreciate that the plaintiff had a significant misunderstanding as to what had occurred at the hearing, to take no steps at all to advise him of his misunderstanding, but to decide the matter against him, without giving him an opportunity to be heard at all on the question of whether the leave sought should be refused, because the complaint had been adequately dealt with by another process, was to deny him natural justice.

71 In answer to the question posed by the defendants, it may not be overlooked that there was an express statutory obligation falling on the Tribunal to take ‘such measures as are reasonably practicable’ so that the plaintiff understood ‘the nature of the assertions made in the proceedings and the legal implications of those assertions' (s 73(4)(a)). One obvious way in which that could have been done, was by relisting the matter so that the plaintiff’s misunderstanding could have been addressed. He would then have had an opportunity to explain his complaints about the inadequacy of the material provided by the defendants in relation to the ACMA proceedings. Even if his argument that the information provided was inadequate and contrary to the Tribunal's orders was not then accepted, the plaintiff could have been given an opportunity to address the Tribunal on why leave to proceed should be granted, despite the remedies which had flowed from the ACMA process.

72 No doubt these difficulties could also have been addressed in other ways, the Tribunal being entitled to 'inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice' (s 73(2)). Doing nothing other than giving its decision in the face of these identified difficulties, meant that natural justice was not afforded and that the plaintiff was not afforded ‘the fullest opportunity practicable to be heard or otherwise' to have his submissions considered (s 73(4)(c)).

73 Hennessey DP took the view that the breaches of the Code with which the ACMA was dealing, were similar to the provisions made in s 20C of the Act; that there should be finality and non duplication of litigation; the remedy imposed, a training programme for presenters and staff, was one of the remedies which the Tribunal could impose, the others being an apology and damages. Having in mind that orders under the Act were to remedy the effect of the discriminatory conduct, not punitive or to provide a sanction, and that the plaintiff was an individual of the group vilified, not himself a target, the argument that the complaint should proceed so damages could be awarded was a weak one. Nor would an apology be the most effective remedy. That remedy, the development and implementation of a training programme aimed at preventing future vilification, had already been achieved.

74 In considering these matters, no doubt Hennessey DP was endeavouring to consider arguments which the plaintiff might have advanced, had he made submissions. The difficulty was that he was not given a fair opportunity to do so. In coming to all of these conclusions the Tribunal had simply not heard from the plaintiff.

75 It being shown that the plaintiff was denied natural justice, it follows that there can be no question that the plaintiff's application must succeed and that orders quashing the Tribunal's decision must follow.

Orders

76 For the reasons given, I am satisfied that error warranting review was shown. Accordingly, I order that:

1. The decision of the Tribunal of 20 March 2008 is quashed.

2. The matters be remitted to the Tribunal.

3. The defendants pay the plaintiff's costs as agreed or assessed.

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LAST UPDATED:
20 March 2009