Terror attacks by Islamist groups

Pies4shaw · pies4shaw Joined: 08 Oct 2007

The decision is likely to be correct as a matter of law. Ch 9 was seeking to have the complaint dismissed without a hearing on the merits. In our legal system, that happens only to cases that are, to put it colloquially, so unsalvageably hopeless that there is no serious prospect of them succeeding at trial because, as a matter of law, the facts that are alleged do not support a claim of the specific legal kind that has been made (ie, even if all the facts you allege are true and the evidence goes entirely your way at trial, it is not possible for you to win). That is not this case. One should, however, try to distinguish between the very low bar that is set in a claimant�s way when it comes to deciding whether or not they should have their day in court and the much higher bar that is applied when deciding whether or not a case should succeed.

The decision is on austlii. It is Ekermawi v Nine Network [2018] NSWCATAD 112. It concerns the possible application of particular parts of a NSW anti-discrimination law to the facts of that case. You can read it if you want but it�s reasonably uninteresting in the scheme of these things. The statement of the applicable principles in paragraphs 5 to 8 of the decision is very familiar - and about what you�d expect to read in any such decision in the common law world.

David · I dare you to try Joined: 27 Jul 2003 Location: Andromeda

Pies4shaw · pies4shaw Joined: 08 Oct 2007

Now I'm near a laptop, rather than wrestling with a mobile 'phone, here's the link to the reasons for decision:

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATAD/2018/112.html

The key bit (with the references edited out so non-lawyers may, just possibly, find it less impenetrable than it otherwise might be) is:

"5.The Tribunal has power to dismiss a complaint before a final hearing �if the complaint is frivolous, vexatious, misconceived or lacking in substance� or �if the Tribunal is satisfied that for any other reason no further action should be taken"....

6.As a general proposition, a complaint should not be summarily dismissed except in the clearest of cases .... The respondents have the onus of establishing that the proceeding should be dismissed without a hearing. Any facts which [the plaintiff/complainant, in whatever the particular case is,] asserts, must be accepted for the purpose of the summary dismissal application...

7.The words �frivolous, vexatious, misconceived or lacking in substance� have been held to refer to the �insufficiency or to the absence of merit or factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all"....

8.In [a widely-quoted Victorian Supreme Court appeal decision, a judge] stated that the term �misconceived� is commonly used by lawyers to mean �a misunderstanding of legal principle� and the term �lacking in substance� to mean �an untenable proposition of law or fact�. ..."

The decision made was, in short, that the case brought by the complainant was not so obviously and legally hopeless that it should be cut off at the knees without going to "trial". It wasn't that the complainant is correct, merely that it is possible that, on the facts alleged, the complaint might succeed, so that the matter should be allowed to go (in the ordinary way) to final hearing.