Sam Ekermawi v Harbour Radio Pty Ltd

[2013] HCASL 190

SAM EKERMAWI

v

HARBOUR RADIO PTY LTD & ANOR

[2013] HCASL 190
S69/2013

1. The applicant alleges that the respondents breached racial vilification provisions of the Anti-Discrimination Act 1977 (NSW). He complained under that Act to the Anti-Discrimination Board and then by referral to the Administrative Decisions Tribunal of New South Wales ("the Tribunal"). The Tribunal dismissed the complaints, finding that vilification of Muslims is not unlawful because Muslims are not a "race" within the meaning of the Anti-Discrimination Act 1977 (NSW). In a separate decision, the Tribunal ordered the applicant to pay the respondents' costs.

2. The applicant sought to appeal the substantive decision and the costs decision to the Appeal Panel of the Tribunal.  He did so, however, many months out of time.  The Appeal Panel refused the applicant the further time to appeal.  It did so by reference to the length of the delay, the fact that the applicant had "rested on his rights", and its assessment that both appeals lacked merit.  In particular, the Appeal Panel held, in relation to the Tribunal's finding that Muslims are not a "race", that no question of law was raised.

3. On 20 October 2011, the applicant commenced a proceeding in the Common Law Division of the Supreme Court of New South Wales. It purported to be an appeal from the two decisions of the Tribunal. The primary judge (Davies J) held, in accordance with s 113 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"), that no appeal lay to the Supreme Court from a decision of the Tribunal. His Honour considered that the proceeding may, in substance, have been an appeal on a question of law from the Appeal Panel's refusal of further time to appeal, but held, in accordance with s 119 of the ADT Act, that any such appeal should have been commenced in the Court of Appeal and not in the Common Law Division. His Honour dismissed the proceeding.

4. The applicant sought leave to appeal to the Court of Appeal, which refused leave. The Court of Appeal (Beazley P, Barrett and Emmett JJA) held that the primary judge had power under s 51 of the Supreme Court Act 1970 (NSW) to remove the applicant's summons to the Court of Appeal or, alternatively, to hear and determine the matter himself. It concluded, however, that the appeal could not have succeeded because the applicant had not satisfied the Court that there was a sufficiently arguable case that the Appeal Panel erred in its discretionary decision to refuse an extension of time to appeal.

5. The applicant seeks special leave to appeal from the decision of the Court of Appeal.  The proposed grounds of appeal are that the Court of Appeal erred in finding that the applicant did not have a sufficiently arguable case and by failing to consider whether Muslims are a "race".  The applicant has not demonstrated any error in the approach of the Court of Appeal.  In particular, no question suitable for determination by this Court is raised by the Appeal Panel's refusal of an extension of time to appeal against the decisions of the Tribunal.  The case does not present a suitable vehicle for the consideration of any question of the proper construction of the Anti-Discrimination Act 1977 (NSW). Special leave to appeal will be refused.

6. The applicant submits that, if special leave to appeal is refused, no order for costs should be made on the ground that he seeks to ventilate an issue of significant public interest.  No sufficient reason is shown to depart from the usual rule as to costs.

7. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
3 December 2013 S.J. Gageler