Corbett v Burns [2014] NSWCATAP 42

Corbett v Burns [2014] NSWCATAP 42

The appeal failed because the Tribunal correctly treated s 49ZT(2) as an exception to s 49ZT(1), with the onus on Ms Corbett under s 104 to prove any exception. In the absence of evidence from her, there was no basis for finding that the good faith requirement in s 49ZT(2)(c) might be satisfied. The Tribunal did not err by failing expressly to refer to implied freedom authorities because it properly considered s 49ZT(1) and then s 49ZT(2). Leave to extend the appeal to the merits was refused because Ms Corbett had notice and an opportunity to present her case at first instance, the findings were open to the Tribunal, and no substantial injustice or unfair fact-finding process was shown.

Jurisdiction
Australia
Judgment Date
14 August 2014
Procedural Posture
Appeal From Administrative Decisions Tribunal Decision Concerning Homosexual Vilification Complaint Under the Anti Discrimination Act 1977 (nsw) / Appeal Panel Hearing on Questions of Law and Application for Leave for Appeal to Extend to the Merits
Outcome
Application for the appeal to extend to the merits refused; appeal dismissed.
Legal Topics
['homosexual Vilification' 'public Act' 'exceptions to Unlawful Vilification' 'onus of Proof' 'implied Freedom of Political Communication' 'failure to Appear at First Instance' 'leave to Appeal on Merits' 'communication to the Public in New South Wales']
['anti Discrimination Law' 'administrative Law' 'statutory Construction' 'practice and Procedure' 'constitutional Law'] ['homosexual Vilification' 'public Act' 'exceptions to Unlawful Vilification' 'onus of Proof' 'implied Freedom of Political Communication' 'failure to Appear at First Instance' 'leave to Appeal on Merits' 'communication to the Public in New South Wales']

Case Brief

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Procedural Posture

Appeal From Administrative Decisions Tribunal Decision Concerning Homosexual Vilification Complaint Under the Anti Discrimination Act 1977 (nsw) / Appeal Panel Hearing on Questions of Law and Application for Leave for Appeal to Extend to the Merits

Legal Issues

  1. 1 ['Whether s 49ZT(2) of the Anti-Discrimination Act 1977 (NSW) is an exception to s 49ZT(1), and whether the onus of proving it lies on the respondent to the complaint.' 'Whether the Tribunal erred by not finding, in the absence of evidence from Ms Corbett, that the exception in s 49ZT(2)(c) might apply.' 'Whether the Tribunal erred by failing to refer expressly to High Court authorities on the implied freedom of political communication.' "Whether leave should be granted for the appeal to extend to a review of the merits of the Tribunal's decision." "Whether the Tribunal's findings that the public acts incited hatred or serious contempt and were communicated to the public in New South Wales justified merits review."]

Ratio Decidendi

The appeal failed because the Tribunal correctly treated s 49ZT(2) as an exception to s 49ZT(1), with the onus on Ms Corbett under s 104 to prove any exception. In the absence of evidence from her, there was no basis for finding that the good faith requirement in s 49ZT(2)(c) might be satisfied. The Tribunal did not err by failing expressly to refer to implied freedom authorities because it properly considered s 49ZT(1) and then s 49ZT(2). Leave to extend the appeal to the merits was refused because Ms Corbett had notice and an opportunity to present her case at first instance, the findings were open to the Tribunal, and no substantial injustice or unfair fact-finding process was shown.

Court Disposition

Application for the appeal to extend to the merits refused; appeal dismissed.

Orders

  • ["The application for the appeal to extend to the merits of the Tribunal's decision is refused." 'The appeal is dismissed.']