Margan v Manias

Judgment

1. MACFARLAN JA: I agree with Gleeson JA.
2. GLEESON JA: This appeal concerns the construction and application of the homosexual vilification provisions in the Anti-Discrimination Act 1977 (NSW) (the Act).
3. In August 2010 the appellant, Mr Margan, was the victim of two incidents several days apart during which the respondent, Mr Manias, first verbally abused and later physically attacked him. Mr Margan made a complaint to the Anti-Discrimination Board alleging that the conduct of Mr Manias constituted both unlawful homosexual vilification and serious homosexual vilification for the purposes of ss 49ZT and 49ZTA of the Act. Those sections make conduct of that kind unlawful.
4. The first incident occurred in the week prior to 9 August 2010 when Mr Margan was in Oxford Street, Darlinghurst, putting up same-sex marriage posters along Oxford Street. Mr Manias appeared to be following Mr Margan and appeared to be keeping pace with him. Near the corner of Oxford and Brisbane Streets, Mr Manias yelled to the street in general, but no-one particularly:

• "I am going to eradicate all gays from Oxford Street";
• "Do not worry, I am doing good work"; and
• "There are wicked things taking place on Oxford Street". (For convenience this conduct may be referred to as the "verbal conduct".)

1. The second incident occurred on 9 August 2010 at about 10.30 pm when Mr Manias assaulted Mr Margan. (For convenience this conduct may be referred to as the "physical conduct".)
2. According to the appellant's submissions, the assault resulted in Mr Margan sustaining a fracture to his left interior medial orbit which has caused an ongoing loss of visual acuity, other facial fractures, cognitive problems, sleep disorders and stuttering.
3. Mr Manias was arrested and charged with five assault offences - one relating to the incident involving Mr Margan, and the other four relating to incidents on the same night involving other persons. He subsequently pleaded guilty to all these offences in the Local Court. There was evidence before the Local Court showing that before and at the time of the assaults, Mr Manias was suffering from a mental illness. He was sentenced to imprisonment for 18 months and placed on a good behaviour bond with conditions requiring that he continue to receive treatment for his illness.

Relevant legislation

1. Section 49ZT, entitled "Homosexual vilification unlawful", makes it unlawful for a person to engage in a "public act" amounting to homosexual vilification within the meaning of that section. The section provides: (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter 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, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
2. The term "public act" in s 49ZT is relevantly defined in s 49ZS as follows: public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
3. It is unnecessary to set out the terms of s 49ZTA relating to the offence of serious homosexual discrimination, as this claim was not pursued in the Court below.

Relevant principles

1. In Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 (Sunol) this Court considered that the word "incite" when used in s 49ZT means "to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement" (Bathurst CJ at [41(a)]; Allsop P and Basten JA agreeing). Bathurst CJ accepted (at [28]) that this could cover a wide variety of conduct, but emphasised that it is not sufficient that the words simply express hatred, serious contempt for, or severe ridicule of, a person on the relevant ground; the relevant public act must be one which could encourage or spur others to harbour such emotions. That is, it must be capable of inciting such emotions.
2. The Chief Justice noted that it is well established that it is not necessary for a person in fact to be incited by the words or publication: at [29]. His Honour accepted, without finally deciding, that it is not necessary to establish an intention to incite: at [31].
3. The Chief Justice referred to a divergence of views as to whether the public act required for a contravention of vilification provisions such as s 49ZT, is one which would incite the requisite emotion in an "ordinary reasonable" member as opposed to simply a "reasonable" member or an "ordinary" member of the class to which the public act was directed: at [32]. His Honour noted the different approaches to that question taken by the Court of Appeal of Victoria in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207 (Catch the Fire).
4. Bathurst CJ preferred the views of Ashley and Neave JJA in Catch the Fire (at [132], [157]-[158]) namely, that the question was to be answered by reference to an "ordinary" member. His Honour reasoned (at [34]) that this is because the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals and this could be measured "only by reference to an ordinary member of the class to whom the public act is directed".
5. In summarising his conclusions, the Chief Justice stated at [41(c)]: It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed.
6. Counsel for Mr Margan acknowledged that he did not seek to challenge any aspect of the reasons in Sunol (tcpt CA at 13, lines 40-43).

Tribunal

1. On 7 August 2013, the Administrative Decisions Tribunal (the Tribunal) found that the first incident involving the verbal conduct constituted unlawful homosexual vilification in breach of s 49ZT, but that the second incident involving the physical conduct did not: Margan v Manias [2013] NSWADT 177. The Tribunal rejected Mr Margan's contention that the verbal conduct and the physical conduct should together be regarded as one "public act" for the purposes of s 49ZT. The Tribunal also rejected Mr Margan's alternative contention that the physical conduct (the assault), considered in isolation, was unlawful vilification because there was no "incitement".

Appeal Panel

1. Mr Margan appealed to the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT). On 9 May 2014, the Appeal Panel upheld the Tribunal's decision: Margan v Manias [2014] NSWCATAP 16.

The Court below

1. Mr Margan brought proceedings in the Supreme Court seeking judicial review of the Appeal Panel's decision, pursuant to ss 65 and 69 of the Supreme Court Act 1970 (NSW). In addition, Mr Margan relied upon an entitlement to appeal, with leave, on a question of law pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW), and asserted an entitlement to appeal, as of right, on a question of law pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW) (now known as the Administrative Decisions Review Act 1997 (NSW)).
2. The primary judge (Hall J) doubted whether Mr Margan had an appeal as of right under s 119 of the Administrative Decisions Tribunal Act. He noted that this provision had been repealed on 4 March 2013 and the decisions of the Tribunal and Appeal Panel were handed down on 7 August 2013 and 9 May 2014 respectively. (Contrary to his Honour's understanding, s 119 was repealed on 1 January 2014: see Civil and Administrative Tribunal Amendment Act 2013 (NSW), s 2(2) and Schedule 2, item [31], and the definition of "establishment day" in s 7 of the Civil and Administrative Tribunal Act, being relevantly "1 January 2014".) It was unnecessary however for his Honour to resolve this question. He determined that, given the potential significance of the issues raised in the proceedings by the appeal, leave should be granted in any event.
3. His Honour may be taken therefore to have dealt with the matter as an appeal, with leave, pursuant to s 83(1) of the Civil and Administrative Tribunal Act, rather than an application for judicial review under the supervisory jurisdiction of the Supreme Court.
4. On 26 March 2015, the primary judge dismissed the summons: Margan v Manias [2015] NSWSC 307.
5. Mr Margan appeals to this Court against that decision.
6. Mr Manias did not appear on the hearing of the appeal. Nor did he appear in the Court below or before the Tribunal or the Appeal Panel.
7. Counsel, Ms V McWilliam with Ms F St John, appeared on the appeal as amicus curiae in generous response to a last minute request from the Court. The Court was greatly assisted by, and appreciative of, the submissions of the amicus in circumstances where the appeal would otherwise have proceeded in the absence of a contradictor.

Leave to appeal

1. The total amount of the compensation sought by Mr Margan before the Tribunal was $60,000. An appeal where the matter at issue does not involve an amount of $100,000 or more requires leave: Supreme Court Act, s 101(2)(r). Counsel for Mr Margan accepted, the point having been properly raised by the amicus, that leave to appeal was required. Counsel made an oral application for leave to appeal and requested that the application for leave be heard concurrently with the appeal.
2. The Court made orders on 13 November 2015: (1) permitting Mr Margan to address an application for leave to appeal on the hearing; (2) directing that a form of summons seeking leave to appeal consistently with the notice of appeal be filed by 20 November 2015; and (3) dispensing with service of the summons seeking leave to appeal.
3. It is appropriate that there be a grant of leave to appeal as the proper construction of the relevant provisions of the Act raises an issue of legal principle.

Issues on appeal

1. The sole ground of appeal is that the primary judge erred in construing ss 49ZS and 49ZT of the Act. Expressed in that manner, the notice of appeal did not identify a question of law.
2. In oral argument, counsel for Mr Margan identified the question of law in these terms: whether as a matter of law (for the purposes of s 49ZT of the Act), the ordinary member of the relevant audience to whom two public acts are directed, ought to be assumed to have had knowledge of each public act (tcpt CA at 4, lines 13-16).
3. An understanding of the context in which this question arises is assisted by an outline of Mr Margan's contentions below and the reasons of the Tribunal, the Appeal Panel and the primary judge.

Mr Margan's contentions and the reasons of the Tribunal, Appeal Panel and the primary judge

Tribunal

1. Before the Tribunal, Mr Margan advanced alternative arguments: either there was a "single" public act or "separate" public acts.
2. The Tribunal recorded (at [33]) Mr Margan's first argument that the verbal conduct and physical conduct should be regarded as interrelated or combined, because: (a) These two instances of conduct occurred in the same location: Oxford Street, Darlinghurst. (b) The Tribunal has taken judicial notice of the fact that this location is 'predominantly associated with the LGBTI community'. (c) The verbal conduct was a 'reinforcement of' the subsequent physical conduct. (d) The test of whether unlawful vilification occurred under section 49ZT requires an assessment of the reactions of a hypothetical, not an actual, observer of the relevant conduct. It is irrelevant, therefore, to determine whether any one or more persons witnessed both the 'verbal' and the 'physical' conduct. What should be assessed instead is the reaction of a hypothetical observer of both these instances of conduct.
3. The Tribunal rejected this submission, referring to an earlier decision in JM and JN v QL and QM [2010] NSWADT 66, where the Tribunal treated as separate public acts a series of alleged incidents involving loud derogatory comments in a public place referring to the complainant's homosexuality.
4. Importantly, it does not seem from the Tribunal's reasons that Mr Margan submitted before the Tribunal that the hypothetical observer of the later conduct, is to be assumed to have had knowledge of the earlier conduct. Mr Margan's submissions summarised at [33(d)] above, was directed to the hypothetical observer of both incidents.
5. Turning to the "separate" public acts argument, the Tribunal referred to the reasons of this Court in Sunol concerning the meaning of the word "incite" in s 49ZT. The Tribunal accepted that the correct approach is to determine whether the public act is capable of inciting the requisite emotion in an ordinary member of the class to whom it is directed: at [45].
6. The Tribunal gave the following reasons for finding that there was no "incitement" of the relevant kind by the physical conduct (the assault) on Mr Margan (at [56]-[62]):

• At the time of the assault Mr Manias did not say anything that would have encouraged onlookers to have negative feelings about homosexuals.
• Mr Manias assaulted five victims, seemingly at random, on the same evening.
• There was no evidence to suggest that Mr Manias recognised Mr Margan as a person whom he had seen putting up same-sex marriage posters during the previous week. In any event, no one observing the assault would know or believe that they had recently encountered each other in such circumstances.
• The assault on Mr Margan occurred outside a convenience store, and there was no reason to believe (and no evidence) that the customers of this store would solely or predominately constitute homosexuals.
• Any suggestion that the "islander girls" (who saw the physical conduct) might have been prompted by Mr Manias' assault to feel hatred or contempt is not relevant because what matters is the reaction of hypothetical, not actual observers.

Appeal Panel

1. Before the Appeal Panel, Mr Margan raised three grounds of appeal. Only the first two are presently relevant. The first ground, referred to as the "contextual analysis", asserted that the Tribunal erred in treating the verbal and physical conduct as two separate events, instead of one entire event. (The Appeal Panel accepted that this involved a question of law). Alternatively, Mr Margan submitted that if the two incidents were two separate events, the physical conduct should be analysed in the context of the fact that the verbal conduct had taken place. (The Appeal Panel did not consider this involved a question of law, but noted that it overlapped with Mr Margan's second ground of appeal, referred to below).
2. In rejecting the first contention, the Appeal Panel observed that the verbal conduct and the physical conduct occurred several days apart, and found that the Tribunal did not err in regarding them as two separate public acts: at [21]. The Appeal Panel rejected Mr Margan's submission that the events should be regarded as a "course of conduct". The Appeal Panel continued (at [21]): The 'public act' must be a 'communication to the public' including conduct observable by the public. While a communication may take place on more than one occasion, it is a question of fact to determine whether each occasion constitutes a separate public act.
3. The second ground, referred to as "the theoretical test", asserted that the Tribunal erred when determining whether the physical conduct incited hatred because it excluded the hypothetical ordinary person's knowledge of both the prior verbal comments and Mr Margan's homosexuality: at [23].
4. The Appeal Panel accepted that this ground raised a question of law, or at least a mixed question of fact and law. Mr Margan submitted that the hypothetical ordinary member of the public who saw the physical conduct should be taken to have known about other events - relevantly, the earlier verbal conduct and that Mr Margan is homosexual because he was putting up gay marriage posters at the time: at [24].
5. At [26], the Appeal Panel referred to the test for incitement stated by Bathurst CJ in Sunol (at [34]) and his Honour's preference for the term "ordinary member" of the class to whom the public act was directed, rather than an "ordinary reasonable" member or simply a "reasonable member".
6. The Appeal Panel found (at [30]): The audience in relation to any public act is the person or group of people to whom the public act is directed. That person in this case is a hypothetical member of the public who was a witness to the public act: Jones v Trad [2013] NSWCA 389 at [63]. That person may be taken to be aware of significant current affairs and events. But the hypothetical onlooker is not omniscient. He or she is not deemed to know about other events that have taken place between the same two people on another occasion even if those events took place in public.
7. The Appeal Panel concluded that the Tribunal did not make an error of law in relation to what was in the mind of the hypothetical members of the audience: at [30].

The reasons of the primary judge

1. His Honour set out (at [25]) the two grounds of appeal identified in the summons. Ground 1 related to the question of intention to incite the requisite emotion towards the protected class of persons. It may be put aside as it is not presently relevant.
2. Ground 2 was in the following terms: The [T]ribunal's decision to make inadmissible the background incidents and comment prior to the physical assault was incongruous to the ordinary 'reasonable person' test being a hypothetical, not a practical test, therefore contrary to the rule allowing the inclusion of all of an incident's relevant history in consideration of the hypothetical reasonable person's reactions, mandated in Green v R [1997] HCA 50.
3. His Honour accepted that s 33 of the Interpretation Act 1987 (NSW) required that a construction should be given that would promote the purpose or object of the Act: at [33]-[34]. He referred to the secondary material referred to by Allsop P in Sunol at [57] which identified the subject matter and mischief to which Pt 4C of the Act was directed.
4. His Honour also accepted that the term "public act" when used in s 49ZT includes that expression in the plural form: at [55]. Nonetheless, it did not follow that every case of multiple public acts must be considered or analysed conjunctively for the purpose of determining whether unlawful homosexual vilification has occurred. His Honour emphasised the importance of other matters, such as temporal and geographic factors, when observing (at [55]): In a particular case, other matters may require examination including temporal and geographic factors relevant to such public acts and their occurrence and whether one or more of the public acts in question were communicated to or observable by a particular audience.
5. His Honour referred to the authorities on the concept of the audience to whom a public act is directed and the effect which such an act is capable of producing, including: Sunol at [33]-[34] (Bathurst CJ) and [61]-[62] (Allsop P); Catch the Fire at [16]; and Jones v Trad [2013] NSWCA 389; 86 NSWLR 241 at [62].
6. At [63], his Honour noted the need to consider the factual context of the assault and whether there was a particular person or class of persons to whom the public act was directed.
7. At [71], his Honour observed that there is no reference to the "hypothetical ordinary member of the public" in the text of the Act. Nor did his Honour consider that the authorities supported such a test for the purpose of making a finding as to the assumed or hypothetical knowledge of events of such a hypothetical person.
8. His Honour rejected (at [74]) the broader proposition or "test" advanced by Mr Margan, as being inconsistent with the approach of Bathurst CJ to s 49ZT(1) in Sunol at [34]. His Honour noted that this proposition or "test" sought to substitute the imputed knowledge of members of a hypothetical audience for the knowledge of an ordinary member of an actual audience as to both episodes of the conduct.
9. His Honour observed (at [79]): The Tribunal and the Appeal Panel, in my opinion, were correct in proceeding in the present case upon the basis that there needed to be an actual observation of the earlier verbal conduct of the defendant by persons who constituted an audience to and witnessed the physical conduct before the verbal and physical conduct could be considered conjunctively. This was consistent with the observation in Sunol at [34] that incitement is to be measured "only by reference to an ordinary member of the class to whom the public act is directed". [Emphasis in original.]
10. His Honour concluded that the Appeal Panel was correct in holding that the Tribunal had not erred by regarding the two events (the verbal and physical conduct) as separate public acts, and that there is no basis in the legislation requiring in all cases "one analysis" of the two acts: at [80].
11. Turning to the Appeal Panel's reasons in dealing with ground 2 - "Assumed knowledge of the audience", his Honour found that the Appeal Panel was correct in focusing upon the actual audience to whom a public act is directed, and that there is no basis in the Act for "deeming" knowledge of events in "the hypothetical onlooker": at [82].
12. His Honour reasoned (at [83]) that a distinction needed to be maintained between: (i) identifying the audience, that is the actual audience to which the public act is directed on the one hand; and (ii) determining the effect upon an ordinary member within that audience who witnessed the public act, that is, the capability of the public act to incite emotions in such a member, such as hatred etc, of the kind referred to in s 49ZT(1).
13. His Honour found that the provisions of s 49ZT(1) are to take into account the knowledge of the "public act" by the ordinary member of the audience to whom the conduct is directed, not the deemed knowledge of a hypothetical person or member of a hypothetical audience: at [85].
14. His Honour considered (at [86]) that the objective facts relating to the "physical conduct", being the assault upon Mr Margan, did not in any way suggest incitement of the relevant kind referred to in s 49ZT(1). Reference was made to the five matters referred to in the Tribunal's reasons, which were summarised in the Appeal Panel's decision at [15] (set out at [37] above).
15. Finally, his Honour rejected an additional argument raised by Mr Margan in the alternative, that there were, in fact, two common observers - Mr Margan and Mr Manias - and that this was a fact ignored by the Appeal Panel: at [94].

Appellant's submissions

1. In this Court, Mr Margan repeated his argument advanced before the Appeal Panel and the primary judge, based on the assumed knowledge of the hypothetical ordinary person to whom the public act is directed. Accepting that the two incidents were separate events, the argument was that the physical conduct was capable of inciting the requisite emotion in an ordinary member of the class to whom the conduct is directed, because the ordinary member of that class is to be assumed to have had knowledge of the earlier verbal conduct.
2. Mr Margan submitted that the text of the Act required that this assumption be made. Reliance was placed upon the term "public act" being taken to include "public acts", having regard to s 8(b) of the Interpretation Act. It was submitted that there would be no work for the term "public acts" if the proper legal test required each separate public act to be considered in isolation.
3. Counsel for Mr Margan accepted that there is a limit to the assumed knowledge of the ordinary member of the public to whom the conduct is directed. It was submitted that the limit in any particular case is a question of fact for the decision-maker, here the Tribunal (tcpt CA at 4, lines 40-45).
4. Mr Margan submitted that the Tribunal, the Appeal Panel and the primary judge had each proceeded on the erroneous basis that public acts could not, as a matter of law, be looked at conjunctively.
5. Mr Margan emphasised that the definition in s 49ZS(b) of "public act" requires that conduct need only be "observable", not "observed". It was submitted that the primary judge erred in his construction of s 49ZT because at [79] of his Honour's reasons reference was made to the need for actual observation of the public act by the persons who constituted the relevant audience.
6. Mr Margan also submitted, in the alternative, that if two public acts must be observed by common witnesses, that requirement was satisfied in the present case because here the witnesses were Mr Margan and Mr Manias themselves.

Submissions of the amicus curiae

1. The amicus submitted that neither the text of the Act nor a purposive construction of the Act supported the proposition that two acts were capable of inciting the requisite emotion towards a protected class of persons by reference to a "hypothetical ordinary person" who had (assumed) knowledge of both the prior verbal conduct and Mr Margan's homosexuality.
2. It was submitted that the correct approach was to apply the words of the statute, taking into account the context in which the public act takes place, as referred to by Allsop P in Sunol at [61]-[62]. On this approach, the proper construction of ss 49ZS and 49ZT of the Act requires, it was submitted, an assessment of: 1. whether the conduct (which may include multiple acts) was a "public act", which requires attention to the actual audience receiving the communication or capable of observing the conduct; 2. if so, whether the conduct was capable of inciting the requisite emotion, hatred etc, towards the protected class of persons.
3. It was submitted that the test proposed by Mr Margan, which directed attention to the assumed knowledge of the hypothetical ordinary member of the class to whom the public act is directed, was inconsistent with the approach of Bathurst CJ in Sunol at [32]-[34].
4. Contrary to the contention of Mr Margan, the amicus submitted that the Tribunal and the Appeal Panel did not find, as a matter of law, that public acts could not be looked at conjunctively. Rather the Tribunal found that on the facts of the present case, the verbal conduct and the physical conduct were to be considered separately, and the Appeal Panel found that there was no error by the Tribunal in adopting that approach, while accepting that it is a question of fact whether each occasion constitutes a separate public act.
5. The amicus acknowledged that his Honour's reasons at [79] (set out at [53] above) when referring to the need for actual observation of the public act, were somewhat loosely expressed. It was submitted that his Honour should be understood as giving a shorthand description of the Appeal Panel's confirmation that the context of the public act, here the physical conduct, and the class of persons to whom the conduct was directed, did not include people who knew about the earlier verbal conduct.
6. The amicus submitted that the reasons of the Tribunal (at [55]-[58]), and the Appeal Panel (at [21] and [30]), made clear that they did not require the actual observation by the ordinary member of the class to whom the conduct is directed, before two public acts could be considered together.
7. With respect to Mr Margan's alternative contention, it was submitted that his Honour's finding that neither Mr Margan nor Mr Manias were members of the class of persons to whom the conduct was directed, was correct and that to find otherwise would be to impermissibly import private knowledge into the application of the relevant provisions of the Act.

Disposition of the appeal

1. It is convenient to first address Mr Margan's "assumed knowledge" argument which was the focus of oral argument on the appeal.

No assumed knowledge of an earlier public act

1. The present case does not involve any issue of principle as to the approach to statutory construction. Nonetheless, since Mr Margan's argument directed attention to the meaning of "public act" in the statutory definition in s 49ZS, it is appropriate to refer to the comments of McHugh J in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103]. His Honour explained that the proper approach to statutory construction requires that once it is clear that a definition applies, it is necessary to read the definition into the substantive provision - in its extended or confined sense - and then construe the substantive provision in its context and bearing in mind its purpose and the mischief it was designed to overcome.
2. Here, it can be readily accepted that the definition of "public act" in s 49ZS(b) requires that conduct need only be "observable" not "observed". Importantly however, the definition requires that the conduct must be observable by the public.
3. Sunol establishes that when the definition of "public act" is read into the operative provision, s 49ZT, the conduct must have the capacity to incite the requisite emotion in an ordinary member of the class to whom the public act is directed, not a "reasonable ordinary member" of that class. This necessarily requires identification of the relevant audience to whom the conduct is directed: Sunol at [34]. See also Jones v Trad at [54]-[55] where Ward JA (Emmett and Gleeson JJA agreeing) referred, with approval, to the observations of Nettle JA in Catch the Fire (at [16]) that there can be no incitement in the absence of an audience.
4. The question of whether conduct has the capacity to incite the requisite emotion is ultimately one of fact in the context in which the public act takes place: Sunol at [61] (Allsop P). The particular class to whom the public act is directed may be taken to be aware of various matters which contextualise the public act. Depending upon the particular class of the public, this might include significant current affairs and events. This however is not to make the assumption for which Mr Margan contends. Rather it is an assessment based upon the characteristics of the ordinary member of the particular audience to whom the public act is directed.
5. It is for this reason that the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited of hatred towards, serious contempt for, or severe ridicule of, homosexuals by the public act.
6. In the present case, counsel for Mr Margan acknowledged that considered in isolation (as the Tribunal found), the physical conduct did not have the capacity to incite the requisite emotion in the class of persons to whom that public act was directed (tcpt CA at 20, lines 34-35). This is the context in which Mr Margan contends that the audience to whom the physical conduct was directed is to be assumed to have knowledge of both the earlier verbal conduct and that Mr Margan is a homosexual.
7. There are a number of difficulties with this approach both on the facts and as a matter of proper construction of s 49ZT of the Act.

The assumption is inconsistent with the facts as found by the Tribunal

1. Dealing first with the facts. The assumption for which Mr Margan contends would be contrary to the facts as found by the Tribunal.
2. The Tribunal found (at [58]) that no one observing the physical assault would know or believe that Mr Margan and Mr Manias had recently encountered each other in the previous week when Mr Margan was putting up same sex marriage posters. Further, the Tribunal found (at [60]) that having regard to the location where the physical assault of Mr Margan occurred, being outside a convenience store, it had not been demonstrated that the customers of that store would solely or predominantly constitute homosexuals. Thus there was no basis for the audience to whom the physical conduct was directed to perceive that Mr Margan himself was a homosexual.
3. These factual findings of the Tribunal were not the subject of appeal to the Appeal Panel, which was limited to an appeal on questions of law, in the absence of leave being granted under s 113(2)(b) of the Administrative Decisions Tribunal Act for the appeal to extend to the merits of the Tribunal's decision: Lloyd v Veterinarian Surgeons Investigating Committee [2005] NSWCA 456; 65 NSWLR 245. No such leave was given by the Appeal Panel: see Margan v Manias [2014] NSWCATAP 16 at [36]-[44].
4. Viewed in this light, the assumption for which Mr Margan contends amounts to an impermissible attempt to challenge the factual findings of the Tribunal.

The construction of s 49ZT

1. Turning to the proper construction of s 49ZT, the following observations can be made. First, contrary to Mr Margan's submissions, the assumed knowledge of the "hypothetical ordinary person" finds no support in the text of the Act. Nor is it necessary to adopt that approach to give effect to a purposive construction of the Act. It is a question of fact, not a matter of assumption, whether for the purposes of s 49ZT, a communication or conduct answering the description in subparas (a), (b) or (c) of the definition of "public act" in s 49ZS has the capacity to incite the requisite emotion in the class of the public to whom the public act is directed.
2. Secondly, while it can be accepted that the definition of "public act" includes the plural, it does not follow, as counsel for Mr Margan submitted, that the Tribunal adopted an erroneous approach that the term "public acts" has no work to do when read into s 49ZT. The Tribunal did not say that multiple "public acts" could never be considered conjunctively.
3. Nor did the Appeal Panel say that "public acts" must be considered separately. The Appeal Panel expressly recognised (at [21]) that "[w]hile a communication may take place on more than one occasion, it is a question of fact to determine whether each occasion constitutes a separate public act".
4. Similarly, the primary judge recognised (at [55]) that multiple public acts might be considered or analysed conjunctively, but this would depend upon an examination of various matters, including temporal and geographic matters relevant to such public acts and their occurrence.
5. Thirdly, the concession by counsel for Mr Margan that the limit of the assumed knowledge of the hypothetical ordinary member of the class is a question of fact for the decision-maker, undermines the very assumption which is the foundation of the suggested approach to s 49ZT. The concession amounts to a recognition that whether two or more public acts should be viewed together or separately is ultimately a question of fact in the context in which the public act takes place: Sunol at [61] (Allsop P).
6. Fourthly, I would accept the submission of the amicus concerning a fair reading of [79] of the primary judge's reasons. That paragraph should be understood as a shorthand (and somewhat loose) description of the approach taken by the Tribunal or the Appeal Panel when emphasising the need to consider the capacity of the conduct to incite the requisite emotion in the ordinary member of the class to whom the public act is directed. Neither the Tribunal nor the Appeal Panel said that there needed to be an actual observation of the public act by the ordinary member of the class to whom it was directed.
7. Counsel for Mr Margan pointed to the reference by the Appeal Panel at [30] of its reasons to the "hypothetical member of the public who was a witness to the public act", as suggesting the need for an actual observation by the public of the relevant conduct. In my view, read in context, the Appeal Panel was merely referring to the need for an audience when considering the ordinary member of the class of the public to whom the physical conduct was directed. The Appeal Panel is not to be taken as importing a further requirement of actual observation of the relevant conduct.
8. One further matter should be mentioned. Counsel for Mr Margan referred to three decisions of the Equal Opportunity Division of the Tribunal which have considered whether multiple communications to the public should be regarded as a single "public act" or as two or more "public acts". It was submitted that these cases could provide assistance on the construction argument.
9. Burns v Laws (No 2) [2007] NSWADT 47 concerned four separate segments of a radio broadcast by a well-known radio commentator between 9:15 am and 9:50 am. The case proceeded by way of a concession by counsel for the respondent with the applicant's preferred approach of characterising all four segments of the radio broadcast as one public act.
10. Burns v Sunol [2012] NSWADT 246 concerned multiple publications of material on the internet. The Tribunal accepted that each of the publications complained of was a separate "public act", noting that all of the publications except two occurred on different dates, and that the two publications that occurred on the same date were separated from each other by a significant quantity of published text: at [31].
11. Collier v Sunol [2005] NSWADT 261 concerned the publication of material on websites that were accessible to the general public without a password. The Tribunal expressed the view (at [37]) that it would have been permissible to characterise as a "public act" each of the four internet postings, taken as a whole. Nonetheless, the Tribunal was prepared to proceed on the basis (at [38]) that the publication of each of the eight identified statements, not of the four messages, was a "public act" within s 49ZS of the Act.
12. None of these cases assist Mr Margan's construction argument. Each turned on their own facts. The cases did not consider whether any assumption is required to be made, as a matter of construction of ss 49ZS and 49ZT, concerning the knowledge of the ordinary member of the public to whom the public act is directed.
13. What the cases do emphasise is the importance of the context in which a public act occurs, including temporal and geographic factors, when analysing whether multiple public acts should be treated separately or conjunctively. Thus, in Burns v Laws (No 2), the Tribunal noted (at [36]) that there is scope for some degree of flexibility in applying the concept of "public act" to the dissemination or broadcast of text or spoken words at different stages in a single electronically distributed document or radio program. So much may be accepted. That however does not advance Mr Margan's construction argument.

"Common witness" argument

1. Mr Margan's alternative "common witness" argument only arises if the proper construction of s 49ZT requires actual observation by the particular class of the public of the relevant conduct constituting a "public act". For the reasons given above, neither the Tribunal nor the Appeal Panel proceeded upon that basis. It is only necessary for the relevant conduct constituting the public act to be "observable" by the public.
2. It follows that the premise of the "common witness" argument is not made out. In any event, the argument goes nowhere. The relevant question for the Tribunal was not whether Mr Margan and Mr Manias were witnesses to the public acts, but whether the physical conduct was capable of inciting the requisite emotion in the ordinary member of the class to whom that public act was directed. The Tribunal answered that question in the negative. As already indicated, counsel for Mr Margan accepted in this Court that, considered in isolation, the physical conduct did not have the necessary capacity to incite the requisite emotion. The "common witness" argument cannot assist Mr Margan's case.

Conclusion and orders

1. Mr Margan's appeal has failed. I would propose the following orders:
2. Grant leave to appeal.
3. Appeal dismissed.
4. TOBIAS AJA: I agree with Gleeson JA.

Amendments 07 December 2015 - Typographical corrections to paras 4, 26, 74 and 92. 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: 07 December 2015