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[2001] FMCA 109
Federal Magistrates Court of Australia
2011-09-06
Original judgment source is linked above.
Introduction 1Mr Ekermawi has applied for permission to lodge late appeals against two decisions of the Tribunal. In the first decision, handed down on 10 June 2010, the Tribunal dismissed Mr Ekermawi's complaints of racial vilification against Harbour Radio Pty Ltd and Nine Network Television Pty Ltd: Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145. In the second decision, handed down on 4 August 2010, the Tribunal ordered that Mr Ekermawi pay the respondents' costs incurred from three weeks before the hearing, that is, after 9 November 2009: Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198. 2An appeal must be made within 28 days of receiving written reasons for the decision. However, the Appeal Panel may extend the time for lodging an appeal: Administrative Decisions Tribunal Act ( ADT Act ) , s 113(3). Mr Ekermawi lodged appeals against both the substantive decision and the costs decision on 18 July 2011. He was just over 12 months out of time in relation to the first decision and just over 10 months out of time in relation to the second. 3Mr Ekermawi represented himself in each of the proceedings following the termination of a grant of Legal Aid approximately two months before the hearing of the substantive matter. He also represented himself on appeal. An appeal may be made against both the substantive decision and the costs decision on any question of law, and with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: ADT Act , s 113(2).
Subject matter of complaints 4The subject matter of the proceedings before the Tribunal at first instance were five talkback radio programs broadcast by Harbour Radio on 2GB and one television program broadcast by the Nine Network on Channel Nine. The programs all went to air in 2005. The allegedly vilifying comments were made by three well known presenters: Alan Jones, Chris Smith and Ray Hadley. Mr Ekermawi's complaint was that parts of the programs breached the racial vilification provisions of the Anti-Discrimination Act 1977 ( AD Act ). Mr Ekermawi gave evidence before the Tribunal to the effect that he had been born in Palestine, he was a Muslim and he considered himself to belong to a long-standing ethnic and religious community that had its origin in Palestine and the Middle East. One of the Tribunal's key findings was that vilification of Muslims is not unlawful because Muslims are not a 'race' as defined in s 4 of the AD Act . Mr Ekermawi disagrees with that conclusion.
Material before the Appeal Panel 5The hearing before the Appeal Panel took place on 6 September 2011. All parties filed evidence and written submissions. At the hearing, Mr Ekermawi was granted leave to file a list of authorities. Despite the fact that no directions were made for the filing of further evidence or submissions, Mr Ekermawi filed further evidence and submissions three days after the hearing, on 9 September 2011. By letter of 20 September 2011, the respondents objected to the Tribunal taking that material into account. If the Tribunal did take it into account, the respondents submitted that it does not assist the Tribunal to determine any relevant issue. 6The further evidence includes a short report from Dr Diddee, Mr Ekermawi's general practitioner, dated 8 September 2011. I have decided to take that evidence into account, but it does not significantly assist Mr Ekermawi's case. The further submission from Mr Ekermawi comprises 35 pages of typed text challenging the legal basis and factual merits of the Tribunal's decision. The submissions are difficult to follow and, in many respects, irrelevant. They do not enlarge in any significant way on the legal issues Mr Ekermawi had previously raised about alleged errors that the Tribunal had made. I have taken those submissions into account. The respondents are not prejudiced by not being given an opportunity to respond because the submissions largely repeat earlier submissions that Mr Ekermawi has made.
Legal principles for late appeals 7The ADT Act does not list the factors that the Tribunal should take into account when deciding whether to accept an appeal which has been lodged more than 28 days after the receipt of written reasons. Those factors can be gleaned from relevant case law. The general rule is that proceedings commenced more than 28 days after the decision has been communicated will not be entertained. An extension of time will be granted, however, if it is proper to do so taking into account matters including: (1) the length of the delay; (2) the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and as to the Appellant's entitlement to appeal; (3) the reasons for the failure including whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested; (4) any prejudice to the Appellant of not granting leave; (5) any possible prejudice to the Respondent of granting leave; and (6) the merits of the appeal: Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9. 8These considerations are similar to those adopted by decision makers when considering comparable legislation at the federal level. In Philips v Australian Girls Choir Pty Ltd [2001] FMCA 109 at [10] McInnis FM set out his understanding of the relevant factors and principles as follows:
Length of delay 9Mr Ekermawi was just over 12 months out of time in relation to the substantive decision and just over 10 months out of time in relation to the costs decision. In circumstances where the appeal period is 28 days, the delay was considerable in both cases. The length of the delay is made more significant by the fact that due to a lengthy procedural history, it is now six years since the programs went to air.
Information provided at the time 10When providing written reasons for the decisions to the parties, the Tribunal includes a four page document headed "Rights of Appeal Against a Decision of the Administrative Decisions Tribunal". That document sets out s 113(3) of the ADT Act which contains the time limit for lodging an appeal. 11I asked Mr Ekermawi during the hearing whether he remembers receiving a copy of that document. He said that when he received the decisions he threw them away because he was so disgusted with the fact that the Tribunal had dismissed his complaints and ordered him to pay costs. He said he did not read the material forwarded with the decisions and was under the impression that he had 12 months to lodge an appeal. He said he gained that impression because a person has 12 months from the occurrence of a breach of the AD Act to lodge a complaint with the President of the Anti-Discrimination Board. He added that if it had not been for his ill health, he would have appealed within the first few days. 12I find that Mr Ekermawi received the Tribunal's four page document which included information about the time limits for lodging an appeal. I also find that Mr Ekermawi received a copy of the written reasons for decision in relation to both the substantive matter and the award of costs. 13The information conveyed to Mr Ekermawi at the time the decision was notified to him, both as to the reasons for the decision and his entitlement to appeal, were adequate. 14I do not accept Mr Ekermawi's evidence that he thought he had 12 months to appeal. That evidence was given in an off-hand way, as an after thought. It does not ring true especially when Mr Ekermawi did not appeal until more than 13 months after the date of the substantive decision and more than 12 months after the 28 day period had expired.
Reason for delay 15In his Notice of Appeal and in his Mr Ekermawi gives the following reasons for the delay:
Prejudice to the appellant 27The prejudice to Mr Ekermawi if leave is refused is that: (1)he will lose the opportunity to appeal against a decision which found that various broadcasts and telecasts in 2005 did not breach the racial vilification provisions of the AD Act; (2)he will be liable for a significant amount of costs which, if enforced, he says will lead to him having to sell his house and to being declared bankrupt. 28Mr Ekermawi feels very strongly that the relevant publications vilify Muslims and that Muslims are a 'race' as defined in the AD Act . His concern is not to obtain monetary compensation but to vindicate his strong belief that the broadcasts are in breach of the law. 29The prejudice to Mr Ekermawi in not being given leave to appeal the costs order has a more practical significance. While it is likely that the costs, as assessed, will be somewhat less than the $84,058.08 claimed in the bill, the amount is likely to be significant. Mr Ekermawi receives a disability pension. There was no evidence about his assets, but I accept that he will suffer considerable financial hardship if the costs order is enforced.
Prejudice to the respondents 30An affidavit from Mr Stewart, the solicitor who appeared for the respondents in the first instance proceedings, reveals that on 15 October 2010 he was instructed to brief an external costs consultant to prepare a bill of costs so that the outstanding costs could be assessed. He states that, at that time, the parties had not been able to settle the outstanding costs issue. He says that his clients told him that had Mr Ekermawi appealed either of the decisions they would not have instructed him to brief an external costs consultant. I accept that evidence. The cost of preparing the bill of costs was $6,094. The respondents have now incurred this expense as well as further legal costs on the assumption that no appeal against either decision would be lodged. 31The respondents did not submit that they would be prejudiced in relation to their ability to defend the proceedings if leave to appeal out of time were granted.
Substantive decision 32The Tribunal made its decision on the basis that Mr Ekermawi had failed in each of his complaints to satisfy key requirements of the AD Act in which the definition of 'race' is involved. Section 20C(1) makes racial vilification unlawful: 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. 33Various defences, which are not relevant here, are set out in s 20C(2). 34There was no dispute that the broadcasts in each of the relevant programs constituted public acts. Vilification must be on the ground of "race". Race is defined in s 4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin." 35The Tribunal also referred to s 88 which relates to a person's entitlement or "standing" to make a complaint: A vilification complaint cannot be made unless each person on whose behalf the complaint is made: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim. 36The Tribunal made findings only on the issues relating to race. Those issues were: whether Muslims are a race; whether Muslims of Pakistani origin are a race; and whether Mr Ekermawi had standing to lodge the complaints. The Tribunal dismissed the complaints on the basis of the following three propositions: 53 First, vilification of Muslims does not fall within section 20C(1), because Muslims are not a 'race' as defined in section 4 of the Act. The reason, as the Tribunal said in Khan at [18], is that Muslims 'do not share common racial, national or ethnic origins' and are therefore not an ethno-religious group such as the definition embraces. In so ruling, we follow the decisions, commencing with Khan , that are listed above at [44]. We are unaware of any recent authority to the contrary. It follows that any statements broadcast by the Respondents that generated negative feelings towards Muslims generally, or any group of Muslims, on the ground of their being Muslims could not amount to unlawful racial vilification. 54 Secondly, Mr Ekermawi does not belong to the one category of Muslims - Muslims of Pakistani origin - that (a) was targeted in the Respondents' broadcasts and (b) might well constitute an ethno-religious group within the definition in section 4. Accordingly, any statements broadcast by the Respondents that generated negative feelings towards Muslims of Pakistani origin, or any group within this category, on the ground of their being Muslims of Pakistani origin, cannot provide the basis for a claim by Mr Ekermawi that section 20C(1) was contravened. Not being a Muslim of Pakistani origin, he does not have, and could not claim to have, 'the characteristic that was the ground for the conduct that constitutes the alleged contravention', as required by section 88. 55 Thirdly, none of the statements broadcast by the Respondents focused on the one category of Muslims that (a) included Mr Ekermawi and (b) might constitute an ethno-religious group under section 4. This category comprises Muslims of Palestinian origin. Mr Ekermawi would have standing under section 88 to sue with respect to any broadcast statements that generated negative feelings towards Muslims of Palestinian origin, or any group within this category, on the ground of their being Muslims of Palestinian origin. But no such statements were broadcast. 37In reaching those conclusions the Tribunal rejected two of Mr Ekermawi's submissions as to why Muslims should be regarded as an ethno-religious group under the AD Act . Those submissions were that Jews had been held to have a common ethnic origin under the Racial Discrimination Act 1975 (Cth) and that in the Second Reading Speech for legislation amending the AD Act in 1994 the Attorney General had referred to Muslims, as well as Jews and Sikhs, as examples of ethno-religious groups. Mr Ekermawi repeated those and other submissions on appeal. 38Partly because of the inadequacy of Mr Ekermawi's submissions on the questions of whether the comments amounted to incitement and whether any defences applied, the Tribunal did not finally determine those issues. 39Apart from making it very clear that he disagreed with the Tribunal's conclusion that Muslims do not constitute a race, Mr Ekermawi's submissions on appeal were, with respect, extremely difficult to follow. His submissions appear to be a mixture of his own words and extracts from various publications and cases. He referred again to various cases, including cases decided under the RDA and to the Second Reading Speech. Looking at his Notice of Appeal and taking into account all his written submissions, I regret to say that I cannot find a question of law. 40It has frequently been said that the existence of an error of law is not merely a qualifying condition to ground an appeal without leave it is also the subject matter of the appeal. 41An appeal does not entitle a party to a second trial of the same issues unless a question of law is identified and an error of law found. Even if the Appeal Panel might reach a different conclusion had they been determining the issues at first instance that does not mean that the Tribunal fell into error. Mere disagreement with the Tribunal's decision does not justify giving leave to appeal. 42Despite the deficiencies in Mr Ekermawi's grounds of appeal and submissions, the Appeal Panel has a duty to ensure, as far as possible, that self-represented parties are not disadvantaged. That duty includes identifying a legal error in the Tribunal's decision if one exists: Barghouthi v Transfield Pty Ltd [2002] FCA 666; XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43]. In this case, it also includes a duty to assess the merits of any appeal for the purpose of determining whether to grant leave to appeal out of time. 43Having read the substantive decision and Mr Ekermawi's material, I am unable to identify any possible question of law which the Tribunal answered erroneously and which would have affected its finding that Muslims are not a 'race' as defined in s 4 of the AD Act . Similarly I cannot identify any reason that the Appeal Panel would grant leave for the appeal to extend to the merits of the Tribunal's decision. 44Mr Ekermawi did not address in any detail the Tribunal's finding that because he is not a Muslim of Pakistani origin, he does not have standing to bring a complaint about comments referring to such people. That finding is consistent with previous Tribunal decisions on the point: Commissioner of Police, NSW Police Service v Mooney [2001] NSWADTAP 20 at [30] and Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89 (27 March 2006) at [20]. In the absence of any submissions to the contrary, I am unable to come to the view that an appeal in relation to that finding would have merit.
Costs decision 45The Tribunal decided to order that Mr Ekermawi pay the respondent's costs for that part of the proceedings that took place after 9 November 2009. The general rule is that each party pays its own costs. However, the Tribunal may award costs if it is satisfied that it is fair to do so taking into account various matters including: the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law: ADT Act , s 88(1A)(c) 46Legal Aid NSW provided Mr Ekermawi with a draft submission in relation to costs before the matter was determined 'on the papers' pursuant to s 76 of the ADT Act . In that submission, Mr Ekermawi stated that: I do not remember any discussion about the issue of whether Muslims come within the definition of "race" either from my lawyer at Legal Aid or at the mediation. I was not aware of the Respondents' arguments until a few days before the hearing in these proceedings. I was given a big bundle of documents and did not fully understand them. 47The Tribunal noted that prior to the respondents filing and serving their Points of Defence in the proceedings on 6 November 2009, they appeared to accept that Muslims did or might constitute a 'race' and that Mr Ekermawi did not lack standing under the AD Act . the Tribunal found that until the respondents filed their Points of Defence, Mr Ekermawi could legitimately have assumed (as he claimed to have assumed) that the question of his standing, at least, was 'not an issue'. However, after that date, Mr Ekermawi should have realised that the complaints 'had no tenable basis in fact or law' within the meaning of paragraph (c) of subsection 88(1A) of the ADT Act . 48The Tribunal's reasoning is summarised at [53]; 53 None of our rulings regarding the period before 9 November 2009 undermines our conclusion that from this date onwards Mr Ekermawi's complaints had 'no tenable basis in fact or in law'. As it happens, it was shortly before this date that he ceased to have the benefit of Legal Aid. But the Points of Defence made it quite clear that two key matters which previously appeared to be conceded were now being contested. The reason why he still persisted with his complaints may have been (as he claimed) that he did not appreciate the significance of this change. But his apparent failure to obtain appropriate advice about it is a matter for which he must bear the consequences. (Emphasis added .) 49As part of his submissions on appeal, Mr Ekermawi sought to tender evidence in the form of correspondence from Legal Aid NSW. One purpose of the evidence was to prove that he was never advised that his case was hopeless or that he had no standing to bring the case against the respondents. The only relevant correspondence is a letter from Legal Aid NSW dated 20 November 2009. In that letter, written eleven days before the hearing, Legal Aid formally notified Mr Ekermawi that his grant of legal aid has been terminated. The reasons for the termination were said to be his failure to accept a reasonable offer of settlement and the fact that, using a cost/benefit analysis, Legal Aid was unlikely to be able to recoup its costs even if the Tribunal made a favourable decision. The letter does not express a view on the merits of the substance of Mr Ekermawi's complaint. It does go on to say, however, that "there is a slight risk that the respondents will ask the Tribunal to order that you pay their legal costs. . " 50In accordance with the evidence before it (and the evidence provided to the Appeal Panel) the Tribunal found, as a matter of fact, that Mr Ekermawi may not have appreciated the significance of the change to the respondents' position as disclosed in its Points of Defence. It is also found, correctly in our view, that he did not seek or obtain further legal advice on the significance of the Points of Defence after they were filed. Finally, the Tribunal exercised its discretion to award costs on the basis that it was fair to do so having regard to the fact that Mr Ekermawi had made a claim that 'had no tenable basis in fact or law'. 51The Appeal Panel, differently constituted, made the following observations about costs orders in the Equal Opportunity Division in the recent case of Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30 at [6] to [9]: 6 It has been most unusual for costs orders, especially full costs orders, to be made against a complainant in the equal opportunity jurisdiction. 7 The equal opportunity jurisdiction serves the important social purpose of providing a facility for the resolution of grievances over perceived unlawful discrimination against individuals on the basis of irrelevant personal characteristics or attributes, such as gender, race and marital status. The making of costs orders may discourage people from airing their grievances. The primary rule reinforces these public interest objectives. The exception is not lightly to be applied. 8 This Tribunal's costs rule is similar to the costs rule that applies in the Victorian Civil and Administrative Tribunal (VCAT): see Victorian Civil and Administrative Tribunal Act 1998 , s 109. Morris J, then President of VCAT, sitting in that Tribunal's Planning List, noted in Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059: It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that 'it is fair to do so' will influence the manner in which a particular jurisdiction operates. Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal. 9 In my view, these considerations apply with additional force to a human rights jurisdiction of the kind that the Equal Opportunity Division is. 52The Tribunal in the present case did not have the benefit of these observations when it made its decision. Even if it had, reasonable minds may differ on the question of whether it is "fair" to award costs in the Equal Opportunity Division. Discretionary judgements can only be disturbed if they miscarry in a serious way, in violation of the principles set out in the line of cases starting with House v R [1936] HCA 40; (1936) 55 CLR 499. 53Having read the costs decision, I am unable to identify any possible question of law which the Tribunal answered erroneously and which would have affected its finding. In relation to giving leave to appeal against the merits of the Tribunal's decision, as I have said, reasonable minds may differ, but that is not a basis for upsetting the Tribunal's decision.
Conclusion 54The prima facie rule is that proceedings commenced outside the prescribed period will not be entertained. That prima facie rule should not be disturbed in the circumstances of this case. Mr Ekermawi received advice from the Tribunal in relation to the appeal period. I accept that he was unable to obtain pro bono legal representation to appeal against the decisions. I do not accept that he was so physically incapacitated that he could not have lodged an appeal within time, or at least within a reasonable time. The length of the delay was significant - approximately 12 times longer than the appeal period. 55Mr Ekermawi rested on his rights by failing to communicate to either the Tribunal or the respondents that he intended to appeal until making a remark to the respondents' lawyer five months after the end of the appeal period. In addition, he instructed solicitors to negotiate with the respondents' solicitors on the question of the quantum of costs. The respondents were entitled to assume that the litigation was over. 56Despite the significant prejudice to Mr Ekermawi of refusing to accept his costs appeal out of time, both appeals lack merit. Leave for the appeals to be accepted out of time is refused. 57Having come to that view, I am nevertheless concerned as to the amount of costs that Mr Ekermawi is likely to be ordered to pay. The Tribunal restricted costs to those incurred after 9 November 2009, three weeks before the hearing. While the Tribunal has power to make an order as to the extent to which costs are to be paid and/or the basis on which costs are to be paid, no actual amount was identified in this case: ADT Act , s 88(2). I doubt whether the Tribunal at first instance would have envisaged that the costs Mr Ekermawi would have to pay would be of the order set out in the respondents' bill of costs. 58In general, it is my view that the Tribunal should fix the amount of costs when making a costs order, especially where a self-represented party is involved. That course avoids further argument about the quantum of costs and gives both parties and the Tribunal an opportunity to assess the amount of costs that it would be "fair" to pay. That amount may differ significantly from the amount of costs which may be assessed as being 'fair and reasonable' for the work concerned pursuant to s 364 of the Legal Profession Act 2004. 59I also note, in case my comments are interpreted as a criticism of the respondents, that the respondents have attempted to negotiate a settlement of the costs issue on terms which they regard as being 'generous'. I have no knowledge of that offer and it would not be appropriate for me to make any comment about it other than to note that it was not accepted.
Order (1)Further time for the appellant to appeal against the Tribunal's decision Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 is refused. (2)Further time for the appellant to appeal against the Tribunal's decision Ekermawi v Harbour Radio Pt Ltd, Ekermawi v Nine Network Television Pty Ltd (No 2) [2010] NSWADT 198 is refused.
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. Decision last updated: 06 October 2011
Ekermawi
Harbour Radio Pty Ltd
[2006] VSC 444
(1936) 55 CLR 499
(1982) 43 ALR 535
(1982) 45 ALR 411
(1993) 45 FCR 441
(1993) 1 VR 297
(1982) 42 ALR 283
(1983) 47 ALR 528
[1936] HCA 40