Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50
• Hearing dates: 17 September 2012
• Decision date: 30 November 2012
• Before: Judge K P O'Connor - President; R J Wright SC - Judicial Member; J Newman - Non-judicial Member

Decision

Appeal dismissed

• Catchwords: APPEAL - Question of law - Discrimination - Racial Vilification - Standing to make vilification complaint; APPEAL - Leave to appeal on the merits
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Anti-Discrimination Act 1977; Evidence Act 1995; Racial Discrimination Act 1975 (Cth); Uniform Civil Procedure Rules 2005
• Cases Cited: Commissioner for Children & Young People v FZ [2011] NSWCA 111; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; Dilworth v Stamps Commissioner [1899] AC 99; Douglas v Tickner (1994) 49 FCR 507; Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262; Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280; Haider v Combined District Radio Cabs Pty Ltd t/a Central Coast Taxis [2008] NSWADT 123; King-Ansell v Police [1979] 2 NZLR 531; Macabenta v Minister of State for Immigration and Multicultural Affairs (1998) 90 FCR 202; Mandla v Dowell Lee [1983] 2 AC 548; Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259; Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; Saint Francis College v Al-Khazraji 481 US 604 (1987); Sherritt Gordon Mines v Federal Commissioner of Taxation [1977] VR 342; Sunol v Collier (No 2) [2012] NSWCA 44; Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216; Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70; Veloskey v Karagiannakis [2002] NSWADTAP 18; Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273
• Category: Principal judgment
• Parties: Alan Jones (First Appellant); Harbour Radio Pty Ltd t/a 2GB (Second Appellant); Sam Ekermawi (Respondent)
• Representation: Counsel; K L Eastman (First and Second Appellants); C J Birch SC and P Batley (Respondent); Baker & McKenzie (First and Second Appellants); Legal Aid Commission (Respondent)
• File Number(s): 119061

Decision under appeal

• Jurisdiction: 9108
• Date of Decision: 2011-11-29 00:00:00
• File Number(s): 101021; Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280

REASONS FOR DECISION

1 APPEAL PANEL (Judge K P O'Connor, President; R J Wright SC, Judicial Member; J Newman, Non-judicial Member): The Equal Opportunity Division of the Tribunal is dealing with a complaint of racial vilification made by Mr Ekermawi.

2 The subject of Mr Ekermawi's complaint is statements made by Mr Alan Jones in his breakfast program on 2GB, Sydney, on the morning of Wednesday, 8 December 2005. He is the first respondent to the complaint. The station's operator, Harbour Radio Pty Ltd, is the second respondent to the complaint.

3 The present issue is whether Mr Ekermawi meets the requirements of s 88 of the Anti-Discrimination Act 1977 (ADA). Section 88 provides:

88 Vilification complaints

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.

4 The Tribunal has ruled that Mr Ekermawi satisfies this requirement. See Ekermawi v Jones and Harbour Radio Pty Ltd [2011] NSWADT 280.

5 The respondents now appeal.

6 The case has its context in the events leading up to the Cronulla riots, as they came to be known. At Cronulla on Sunday, 4 December 2005, youths, said to be of Muslim or Middle Eastern background, were alleged to have been involved in altercations with other youths who used the beach. As at 8 December, text messages were in circulation encouraging people to attend a protest rally the following Sunday, 11 December 2005. On that Sunday, a gathering of thousands took place, it got out of control and descended into scenes of mayhem and violence. (See generally, Police Report into Cronulla Riots, tabled in the Legislative Council, 24 October 2006.)

7 To better understand the issues raised by the appeal, we set out the provision making unlawful racial vilification by means of a public act (s 20C), the related definition of 'race' (s 4(1)) and the scope of the complaint.

8 Section 20C provides:

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.

(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, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

9 The ADA provides (s 4(1)):

In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ...

race includes colour, nationality, descent and ethnic, ethno-religious or national origin.

10 The proper scope of the complaint was the subject of an earlier ruling of the Tribunal. In the decision under appeal, the Tribunal referred to this matter at [13]:

13 In the decision granting leave for the complaint to proceed, the Tribunal characterised the complaint as relating to three comments made by Alan Jones (AJ): Ekermawi v Jones and Harbour Radio Pty Ltd t/as Radio 2 GB [2010] NSWADT 262 at [3]. Those comments are italicised. The immediate context is also included.

First comment

P: The police obviously can't or won't do anything about it. The politicians are not listening to us as usual. If need be, mate, I'll get babysitters for my kids on Sunday and I'll be down there.

AJ: OK. Now, let me tell you, P, let me just say this to you because - you know I'm the person that's led this charge here. Nobody wanted to know about North Cronulla. Now, it's gathered to this, we really have to be hands off here we don't want a situation whereby there's open warfare between people calling themselves Aussie whites and people calling themselves Lebs or whatever. We have at least alerted the government.

Second comment

AJ: And the text message urges Aussies yesterday to take revenge and Lebs and wogs. Now it's got pretty nasty when you start talking like this. It says, "Come to Cronulla this weekend to take revenge. This Sunday every Aussie in the Shire get down to North Cronulla to support the Leb and wog bashing day . . ."

I do understand what people are saying, let's give the police a chance to do the job. And I can understand the young blokes who've sent that text message yesterday, "Come to Cronulla this weekend to take revenge", it says. "This Sunday every Aussie in the Shire get down to North Cronulla to support the Leb and wog bashing day, bring your mates, let's show them that this is our beach and they're never welcome." Well, now that's not the way, I do understand what you're saying, P, but we've just got to back off a bit here. We're not giving any ground to them. I'm saying backing off and letting, backing off and let the police do the job.

Third comment

AJ: Yeah, well I've got, I've got a stack of emails in front of me, let me read you this one, "Alan, its not just a few Middle Eastern bastards at the weekend, its thousands. Cronulla is a very long beach and it's been taken over by this scum. It's not a few causing trouble. It's all of them, it's an attitude that you feel whenever you go there, it's just straight out racism against the skippies, it will not go away, the police have their hands tied - I'll come to that later in the program - reduce numbers and powers, I wish there was an answer".

11 In the reasons below, Mr Ekermawi's racial and cultural background is described in this way at [4]:

The applicant is not Lebanese. He was born in Jerusalem in 1945 when it was under the control of the British Mandate for Palestine. His parents were Arabic speaking Muslims and he was raised within what he describes as an Arabic culture.

12 Though Mr Ekermawi's complaint has been with the Tribunal for five years, it has still not reached a hearing on the substance (it has a long and convoluted history set out in the decision under appeal, and earlier decisions).

The Decisions under Appeal

13 With the agreement of the parties, the Tribunal formulated the following three questions and answered them as follows:

1. On the ground of which race or races is it alleged that the respondents have breached s 20C of the Anti-Discrimination Act 1977?

Arab

2. Is that a race or races within the meaning of the term "race" in the Anti-Discrimination Act?

Yes

3. Is the applicant a person of that race or races and/or does he claim to be a person of that race or races and is there no sufficient reason to doubt that claim?

Yes

14 It will be seen that Question 1 refers to s 20C, Question 2 has as its primary focus s 4(1) and Question 3 refers to s 88.

The Appeal

15 The appeal is interlocutory. We have given leave for it to proceed. The grounds of appeal set out four questions of law, and apply for leave to extend the appeal to the merits, with a view to the Appeal Panel dismissing the complaint on the ground that Mr Ekermawi does not satisfy the threshold set by s 88.

16 The appellants assert that:

(a) The Tribunal misdirected itself by analysing the three questions by reference to the requirements of proof that apply to applications for summary dismissals made by respondents to equal opportunity claims; and instead should have dealt with them as questions going to jurisdiction without having regard to any onus that might be said to apply to a respondent (Ground 1 of the notice of appeal).

(b) In seeking to ascertain what 'race' the broadcaster was referring to, for the purposes of s 20C(1) and consequently s 88, the Tribunal misdirected itself in not confining its consideration to the three statements that fell within the scope of the complaint, and instead wrongly considered the whole of the broadcast; and had it confined itself to the three statements that fell within the scope of the complaint, it could not have concluded that the race to which the broadcast referred was Arab (Grounds 3 and 4).

(c) In any case, it erred in finding that there is an Arab "race" (Ground 2).

(a) The Way the Tribunal Approached the Resolution of the Three Questions

17 Submissions: In support of their contention that the Tribunal misdirected itself as to the process of inquiry it should follow in resolving the three questions, the appellants referred to the following statements at the beginning of the Tribunal's reasons for decision:

2 The respondents have applied for the proceedings to be dismissed on the basis that the applicant does not have "standing" to bring the complaint under the Anti-Discrimination Act 1977 (AD Act). [Section 88 set out]

4 The respondents submitted that the applicant does not have standing because he is not a member of the "race" which was the ground for the alleged vilification. They say that the relevant comments were about "Lebs", "wogs" and "Middle Eastern" people and that only the term "Lebs" denotes a "race". The applicant is not Lebanese. He was born in Jerusalem in 1945 when it was under the control of the British Mandate for Palestine. His parents were Arabic speaking Muslims and he was raised within what he describes as an Arabic culture. According to the respondents, because neither "Middle Eastern" nor "wogs" come within the definition of "race" in the AD Act, the complaint, insofar as it alleges those grounds, should be dismissed.

18 The appellants also referred to the following passage at [7]:

These proceedings relate to an interlocutory application by the respondents for the complaint to be dismissed because Mr Ekermawi does not have standing".

19 The appellants assert that the Tribunal mischaracterised the task before it as one of dealing with an application said to have been made for them for dismissal. It must have seen it as a summary dismissal application, given the point in the proceedings that it arose. Properly the Tribunal should simply have seen the questions as ones going to jurisdiction which it was obliged to resolve, regardless of whether the appellants as respondents had first drawn them to attention. It is said that the Tribunal then applied the restrictive standards that govern the making of summary dismissal applications, in particular the impermissible casting of an onus on the maker of an application for summary dismissal.

20 The respondent to the appeal (Mr Ekermawi) noted that the appellants could not point to any place in the reasons where the Tribunal said as much. Although there was no formal order for preliminary determination of separate questions, it was submitted that this is what, in substance, occurred.

21 In dealing with the three agreed questions, the Tribunal received evidence from the respondent concerning his background and origins, evidence as to the broadcast the subject of the complaint and documentary evidence concerning classification of races. It then determined the answers to the three questions, after receiving oral and written submissions.

22 The respondent's position was that neither those questions and answers nor any of the Tribunal's reasoning indicated that it had made any error as to the nature of the application or had reversed the onus.

23 The respondent also drew attention to the Court of Appeal's decision in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 concerning the caution with which tribunals operating under a provision such as s 73(3) of the Administrative Decisions Tribunal Act 1997 (ADT Act) should approach legal rules governing the onus or burden of proof (s 73(3): 'The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms').

24 Consideration: It is plain that there is no express reference in the Tribunal's reasons to it being engaged in responding to an application for the 'summary' dismissal of proceedings. We do not consider that the way in which the Tribunal described the task it was discharging at [2] and [7] led it into the errors asserted by the respondents.

25 While it might possibly have been more accurate for the Tribunal to have described the nature of the proceeding before it as a final determination of certain preliminary or jurisdictional questions relating to Mr Ekermawi's standing, it made no further reference to 'summary' dismissal, nor did it anywhere in its reasons refer to the principles developed in the equal opportunity jurisdiction in relation to summary dismissal, or related matters such as onus of proof (see, for example, Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73).

26 The Tribunal did not use any of the language of summary dismissal decisions, such as 'taking the complainant's case at its highest' or asking whether there is 'no case to answer' (see Prakash) which might have suggested that it was misdirecting itself. (This is what the Tribunal had in effect quite properly done earlier in considering the complainant's application for leave to proceed in circumstances where the President of the Anti-Discrimination Board had declined the complaint - Ekermawi v Jones and Harbour Radio Pty Ltd [2010] NSWADT 262 at [23] to [34] and [43].)

27 Moreover the Tribunal did say in between the two paragraphs quoted above, at [3]:

3 Both parties agreed that this provision represents a "jurisdictional fact", that is, something which must exist before the Tribunal can entertain the complaint.

28 A tribunal's reasons are to be read fairly and not in an 'over-zealous' way so as to glean an inadequacy from the way they are expressed (Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

29 The Tribunal formulated the questions in the way agreed by the parties, and we are satisfied that it approached the consideration of those questions in an even handed way, without imposing any onus threshold on the respondent.

30 The Tribunal spent some time identifying in its reasons for decision the conduct complained of in order to determine what was "the alleged contravention" of the ADA, as referred to in s 88 of that Act. Then it considered the evidence adduced by Mr Ekermawi as to what Mr Jones had said in the broadcast of 8 December 2005. In the light of this material, it reached its conclusion set out at [42] and [50] as to what was "the characteristic that was the ground for the conduct that constitutes the alleged contravention", within the meaning of s 88(a) of the ADA.

31 The Tribunal also received and considered evidence from Mr Ekermawi as to his background and geographic and cultural origins and documentary evidence as to the classification and ethnic or cultural identity of Middle Eastern persons and Arabs. On these bases, the Tribunal made the findings set out at [57] and [58] concluding in effect that Mr Ekermawi had the requisite characteristic.

32 The Tribunal's reasoning is consistent with the approach that Mr Ekermawi bore the burden of establishing that he had standing.

33 We observe that there is no section in the ADT Act nor rule in the ADT Rules which expressly permits the Tribunal to order that there be a determination of separate questions in the way that is seen in the higher courts, see, for example, Part 28 of the Uniform Civil Procedure Rules 2005 (NSW)). The Tribunal, as is the case with tribunals generally, has wide powers to manage its procedures in a flexible way, appropriate to the issues with which it has to deal: see, for example, ss 73(1) and (3) of the ADT Act which would permit this to be done. Furthermore, the powers of the Tribunal that may be relevant to determining an issue of lack of standing under s 88 of the ADA are found in either s 102 or s 108(1)(a) of the ADA, which describe the Tribunal's relevant powers as being to "dismiss the whole or any part of a complaint" or "dismiss the complaint in whole or in part", respectively. There is a similar power of dismissal contained in s 73(5)(g)(ii) of the ADT Act.

34 It was open, we consider, to the Tribunal to describe the process in which it was engaged as one that might lead to the 'dismissal' of the proceedings. Similarly, it was not inappropriate to describe the application as 'interlocutory'. The appellants raised the issue, and to that extent it was reasonable of the Tribunal to describe itself as dealing with an application from them.

35 It does not follow from this, however, that the appellants bore any onus of proof in relation to standing or lack of standing. Moreover, if the appellants were successful, the only order that could be made in the circumstances was that the complaint be dismissed.

36 The Panel finds no error of law by the Tribunal in describing what was before it as an interlocutory application by the appellants for the respondent's complaint to be dismissed. Nor can it be concluded that the Tribunal erred by treating the application as a "summary dismissal" application or by impermissibly reversing the onus of proof.

37 Ground 1 is rejected.

(b) Taking into Account the Whole of the 8 December 2005 Broadcast, and Related Matters

38 The appellants argue that the Tribunal erred both:

(i) by taking into account and considering the whole of the 8 December 2005 broadcast and not merely those parts that are the subject of the complaint; and also

(ii) by concluding in the circumstances that the matters complained of referred to "Arabs" when that word was not used in the parts of the broadcast the subject of the complaint and there was no evidence to support that finding.

39 The Tribunal held (at [28]) that, even though the conduct complained of was confined to the three comments, it was appropriate to refer to the entire broadcast because the various expressions used throughout the broadcast identified a single relevant group of persons. The Tribunal at [38] of its reasons listed as other relevant expressions used in the broadcast for the group:

"Middle Eastern" - "gangs", "youths" "gang members", "males" and "bastards" and as "gangs made up of Middle Eastern descent". They are also referred to as "Lebs and wogs", "Lebanese gangs", "Lebs or whatever" and "ethnic people".

40 Submissions. The appellants' main contention is that the Tribunal erred in law. They emphasised that at no point either in the three statements or in the rest of the broadcast did Mr Jones use the expression 'Arab'. Further, they submitted that "it was not open to the Tribunal to attribute a meaning to the words [in the three comments] in the absence of any evidence about what the authors or speakers intended to mean for the purposes of answering the jurisdictional fact".

41 The respondent submitted that the Tribunal took the correct approach and concluded (in the light of the entire broadcast) that the group to which Mr Jones was referring in the three comments was those of "middle eastern descent" or "middle eastern background" as a racial group. It was then submitted that it was not erroneous, although it was probably not necessary, for the Tribunal to enquire and determine what "race" was being referred to by the terms used by Mr Jones.

42 The respondent submitted that instead of asking, as the appellants contended: Which race or races can be identified from the three comments?, the correct question was: Which race is (or races are) the subject of the three comments? The answer to that latter question is found in the context of the entire broadcast.

43 Contrary to the appellants' submission, the respondent submitted that there was evidence to support the finding that the race being referred to was Arab, namely the transcript of the broadcast (including the three comments) and the Australian Bureau of Statistics document relied upon. Finally, it was said that Mr Jones's subjective intentions were not determinative in this regard.

44 Consideration. It will be seen that the three comments identify two groups as being in disagreement with each other:

(a) "people calling themselves Aussie whites", "Aussie", "skippies"; and

(b) "people calling themselves Lebs or whatever", "Leb and wog", "not just a few Middle Eastern bastards ... its thousands".

45 Mr Ekermawi's complaint is made on his own behalf. He has not made the complaint on behalf of other named persons. In these circumstances, in order for Mr Ekermawi to have standing under s 88 of the ADA to bring such a complaint, that section requires that he has (or claims to have and there is no sufficient reason to doubt the claim) "the characteristic that was the ground for the conduct that constitutes the alleged contravention".

46 In order to determine the relevant characteristic, it is first necessary to identify the alleged contravention of s 20C(1), that is the public act which is said to have incited the requisite response on the ground of the characteristic. The Tribunal has already decided that the public act consists of the three comments set out at [13]. There has been no appeal.

47 For the purpose of deciding the question of standing, the Tribunal proceeded, appropriately, by assuming that the three comments were capable of constituting a contravention or contraventions of s 20C(1). Making this assumption, the task before the Tribunal was to determine what was the "the race of the ... members of the group" in relation to whom the three comments were alleged to incite hatred, contempt or ridicule.

48 It is correct to say that the Tribunal cannot go beyond the conduct complained of in determining what the "alleged contravention" was for the purposes of s 88.

49 From this, however, it does not follow that in understanding and evaluating this conduct and determining the relevant ground for that conduct, the Tribunal cannot consider any material going beyond that conduct, either when determining a preliminary question as to standing or at a final hearing. The Tribunal is entitled to have regard to the context in which the conduct occurred in order properly to understand the allegedly contravening conduct, what was the ground for that conduct and what was the meaning of the words used in that conduct.

50 This can be illustrated by a simple example. A spectator at a march yelled out to the other bystanders: "These people marching are scum. They deserve to die sooner not later. Let's attack them!" and the spectator attempted to jump over the barrier separating marchers from spectators. No other words were spoken by the spectator. If a complaint of vilification based on these words and actions came before the Tribunal, it would be incorrect for the Tribunal to proceed on the basis that, in determining what was the ground for the conduct that constituted the alleged contravention, it could only have regard to the actual words and conduct that constituted the alleged contravention and not the context in which they occurred. If the march was by persons who were HIV/AIDS infected carrying placards to that effect, and other bystanders around the spectator were making comments such as "These marchers with AIDS are scum and should not be allowed to live", this could be taken into account by the Tribunal to determine what was the ground upon which the spectator was inciting hatred, contempt or ridicule for the group marching and whether it was a ground that fell within s 49ZXB of the ADA. Indeed, without taking into account that information, the Tribunal could not properly make its decision.

51 Similarly, in the present case, it was permissible for the Tribunal to have regard to the context in which the three comments were made in order to make a fully informed decision as to what was the meaning of words used in the three comments and what was "the characteristic that was the ground for the conduct that constitutes the alleged contravention" under s 88 of the ADA. The transcript of the broadcast of 8 December 2005, during which the three comments were made, provides that context. It was not an error of law for the Tribunal to refer to the entire broadcast for this purpose in the present case.

52 That is not to say, however, that the Tribunal would have been entitled to "trawl through" (to use the appellants' phrase) the entire broadcast to find new grounds of complaint or other examples of conduct not the subject of the complaint which might amount to racial vilification and then identify the characteristic that was the ground for that other conduct and treat that, without more, as if it were the relevant characteristic in relation to the conduct that was the subject of the complaint. Such a course would involve an error of law but it was not what the Tribunal did in this case.

53 Whether the context, in any particular case, assists the Tribunal to understand and assess the conduct complained of will be a question of fact depending upon the circumstances of each case. It is possible to imagine cases where the context adds nothing of substance. In other cases, such as the simple example of the spectator above, the context may be vital to a proper understanding of what occurred. In the present case, the Tribunal concluded as a matter of fact that the various expressions used throughout the broadcast identified a single relevant group of people being the group referred to in the three comments. There was adequate evidence from both the wording of the three comments as well as the rest of the broadcast to support this finding. As a result, it follows that the context provided by the entire broadcast was of legitimate assistance to the Tribunal in arriving at a full and proper understanding of the meaning of the words used in the three comments and the ground for the alleged contravention or contraventions. Indeed, if the context were such as to indicate that the words spoken in the conduct complained of did not have their ordinary meaning, it could well be an error on the part of the Tribunal not to have regard to the context in that circumstance.

54 To suggest, as the appellants appear to at paragraph 26 of their written submissions, that because the Tribunal's hearing in the present case was "at a preliminary stage" the only material which the Tribunal could consider was the allegedly contravening conduct and not its context is also wrong. As is made clear in [6] of the Tribunal's reasons for decision, the task upon which the Tribunal embarked was not hearing a preliminary application in the nature of a strike out or summary dismissal application. Even though the hearing was taking place before the final hearing of the matter, the Tribunal was determining the question of standing on a final basis, at the urging of, or at least without any opposition from, the appellants.

55 To this end, evidence was adduced by Mr Ekermawi, including the transcript of the entire interview. It was admissible in the circumstances. There is no sound basis for confining the material, to which the Tribunal might have regard in this case for the purpose of deciding whether the respondent had standing, to the conduct the subject of the complaint.

56 Having determined that the group referred to in the three comments included but was not limited to Lebanese and extended to people of Middle Eastern descent or background (at [42]), the Tribunal in effect used the entire broadcast to confirm the meaning of the words used in the three comments. The Tribunal did not attribute a different meaning to the actual words used in the three comments because of what was said in the other parts of the broadcast not including the three comments.

57 The Panel is satisfied that the Tribunal did not fall into any error of law by having regard to the entire broadcast to gain a proper understanding of the group of persons being referred to in the three comments.

58 In any case, we do not accept the underlying premise of the appellants' submissions. The underlying premise is that had the Tribunal confined itself to the three statements the subject of complaint, only one answer could have been reached - that the statements in issue referred to the Lebanese race and, as Mr Ekermawi was not Lebanese, he therefore had no standing under s 88.

59 The appellants conceded that there were words used in the three statements that went beyond terms such as 'Leb' which might be said to be short-hand for 'Lebanese'. But the contention then was that as the words of wider denotation (for example 'or whatever', 'wog', 'Middle Eastern bastards') did not refer to any known race of people, they ought properly to have been disregarded, as they did not supply any wider racial profile to the only word of a clearly racial character - 'Leb'.

60 It was then said that the Tribunal compounded this error by embarking upon the "unnecessary inquiry" as to which group of people were the subject of the comments rather than just determining whether the respondent had the relevant characteristic with respect to the three comments (again submitting that they referred to persons of the Lebanese "race").

61 The respondent does not agree that the Tribunal would have been forced to conclude that only people of 'Lebanese' race were covered by the expressions used in the three statements.

62 In our view, it is not appropriate to parse Mr Jones' comments in the way suggested by the appellants' submissions, and to excise words of wider compass when used in conjunction with other words that can readily be said to involve a racial descriptor.

63 The words 'or whatever', 'wog', 'Middle Eastern bastards' point to a category of people that includes people who may not be of Lebanese national origin or descent. In any case, it should not be assumed, as the appellants' submissions do, that the use of a short-hand expression such as 'Leb' necessarily bears the strict denotation of people who are 'Lebanese'. An expression of this kind may over time or because of usage in the community come to acquire a denotation that is wider. The linguistic meaning of an apparently narrow or fixed expression can change over time.

64 The word 'Leb' was used in the three statements that form the scope of the complaint with accompanying words of obviously wider compass. To take the word "whatever" out of the expression "Lebs or whatever" and observe that "whatever" does not refer to any "race" does not have regard to how the English language is actually used.

65 In colloquial English, the use of "whatever" in the expression "Lebs or whatever" in the context of the first comment can reasonably be seen as one that seeks to give a description to the subject group that goes beyond people who are Lebanese, to encompass persons of a like or related origin, background or ethnic or cultural group. Similarly, the expression "Leb and wog" is not, in its context, a reference to Lebanese persons and a separate reference to some other non-racially defined group of persons, as the appellants suggest.

66 "Wog" is defined in the Macquarie Dictionary (Online Ed) as "a person of Mediterranean or Middle Eastern extraction, or of similar complexion or appearance" or "(loosely) any foreigner". At least in the first meaning cited, the word has a potentially racial character. Further, the use of both the terms "Leb" and "wog" in conjunction with one another in the phrase "Leb and wog" tends in the context to exclude the meaning of "wog" as "any foreigner".

67 In our view it was open to the Tribunal to treat this as a composite phrase referring to a group of people of Mediterranean or Middle Eastern extraction or appearance especially those whose origins are from Lebanon or the region about Lebanon. This conclusion is consistent with the description, in the third comment, of the group referred to as "not just a few Middle Eastern bastards ... its thousands".

68 It was also open to the Tribunal to conclude that the words used in the three comments, the subject of the complaint, identify the relevant group as people of Mediterranean or Middle Eastern extraction or appearance and covered, at least, people originating from Lebanon or the region about Lebanon, which geographically includes, among others, areas or countries such as Palestine, Syria and Jordan.

69 Accordingly, the Panel does not accept the appellants' submission that the Tribunal could only conclude that the relevant group identified in the three comments was Lebanese and no other.

70 The group the subject of the alleged vilification having been identified as Lebanese and people of Middle Eastern descent or background, it was perhaps unnecessary for the Tribunal to then embark on a process of "naming" the race or races of the group referred. The Tribunal's task could possibly have been approached simply by asking whether alleged vilification on the ground of being Lebanese or of Middle Eastern descent or background was "on the ground of ... race" within the meaning of the ADA. That is not to say, however, that by taking the course that it did, the Tribunal erred.

71 In the Panel's view, it matters not whether or not the word "Arab" was actually used in the three comments the subject of the complaint or elsewhere in the entire broadcast. Arab may still be an appropriate way in which to refer to the characteristic that was the ground for the conduct that constitutes the alleged contravention of the ADA. Whether it is or not is a matter of fact.

72 In the present case, the Tribunal identified the allegedly contravening conduct, the three comments. By reference to the conduct complained of and the context provided by the entire broadcast, the Tribunal then identified the group allegedly vilified and thereby the ground for the alleged vilification. The ground for the conduct was found to have been that the members of the group were Lebanese and people of Middle Eastern descent or background.

73 Further, having regard to the information in the Australian Bureau of Statistics' publication Australian Standard Classification of Cultural and Ethnic Groups, the Tribunal concluded that the ground for the conduct was that the members of the group were, what could properly be described as, Arab. As the Panel understands the Tribunal's reasons for decision, the Tribunal merely found on the evidence before it that "Arab" was another, relevant way of referring to the persons of Lebanese or Middle Eastern descent or background as identified in the three comments and as confirmed by the broadcast as a whole. The Tribunal did not fall into any error of law by finding as a matter of fact that the relevant characteristic could be described as being "Arab", even though that word did not appear anywhere in the three comments.

74 The next issue is whether the group described as people of Mediterranean or Middle Eastern extraction or appearance, especially originating from Lebanon or the region about Lebanon, constitutes a group that can be described as, a matter of law, a 'race' for the purposes of the Racial Discrimination Act 1975 (Commonwealth).

75 The appellants referred to comments found in Haider v Combined District Radio Cabs Pty Ltd t/a Central Coast Taxis [2008] NSWADT 123 at [8] and [50] and Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 that might be said to bear against the conclusion that references to 'Middle Eastern' involve a reference to a 'race' of people.

76 These cases do not assist. They did not turn on whether "Middle Eastern" by itself constituted a "race", although some doubts were expressed that it did. They were both decided relying on the "ethno-religious ... origin" element of the definition of "race" in s 4(1) of the ADA which was not raised in this case. Mr Ekermawi has not asserted that he belongs to an 'ethno-religious' group.

77 Finally, the appellants submitted in their written submissions that "it was not open to the Tribunal to attribute a meaning to the words in the absence of any evidence about what the authors or speakers intended to mean for the purposes of answering the jurisdictional fact". As the Panel understood the oral submissions this point was abandoned by the appellants. In case we have misunderstood the position, the Panel notes that it would in any event have rejected the submission. Incitement for the purposes of the vilification provisions of the ADA, including s 20C(1), does not depend upon the subjective meaning or intent of the speaker or author but upon whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or group - Veloskey v Karagiannakis [2002] NSWADTAP 18 at [26]. Accordingly, the subjectively intended meaning of the words used by the speaker or author is not determinative and may not, depending on the circumstances, even be relevant.

78 The question is what would the words used have relevantly conveyed to an ordinary member of the audience in the circumstances - see Sunol v Collier (No 2) [2012] NSWCA 44 at [32]-[34]. This is the question which the Tribunal in effect addressed.

79 Conclusions. Accordingly, the Panel finds that there was no error of law by the Tribunal because it took into account the whole of the 8 December 2005 broadcast as context for the three comments which were the subject of the complaint. The Tribunal did not err in law by concluding in the circumstances that the characteristic that was the ground for the allegedly vilifying conduct could be described as being Arab. Furthermore, there was evidence to support the finding as explained above and in the following section.

80 Grounds 3 and 4 in the Notice of Appeal are rejected.

(c) Construction of the word "Race" in the ADA

81 Submissions. The appellants submitted that the Tribunal erred in construing the word "race" in the ADA and, in particular, fell into error by:

(a) admitting the document, Australian Bureau of Statistics: Australian Standard Classification of Cultural and Ethnic Groups, 2nd Ed 1249.0 (the "ASCCEG"), into evidence and relying on that document to support its interpretation of the definition of "race" in s 4 of the ADA;

(b) not determining whether "Arab" was a "race" in accordance with law, in particular, "well-settled case law";

(c) adopting a "common understanding" approach to the definition of "race" and not explaining its reasons for its conclusions;

(d) relying upon a United States case that involved different statutory wording and a different context.

82 The appellants also submitted that there was no evidence before the Tribunal that "Arabs" constituted a race. It was said that the Tribunal relied "solely and exclusively" on the ASCCEG and did not consider the indicia of "race" (referred to in cases such as Mandla v Dowell Lee [1983] 2 AC 548 and Macabenta v Minister of State for Immigration and Multicultural Affairs (1998) 90 FCR 202) in the light of the words and phrases used to describe the group in the three comments.

83 The respondent submitted that whether or not "Arab" is a "race" for the purposes of the ADA is a question of fact and there was adequate support for that finding in the material before the Tribunal, including the ASCCEG, which was properly in evidence. The Tribunal was not limited in its consideration of this question to the words and phrases identifying "race" in the public acts the subject matter of the complaint. It was also submitted that the material in the ASCCEG was relevant to determining whether the indicia of "race" were present in respect of "Arab". The Tribunal in referring to a "common understanding" approach to the construction of "race" was simply contrasting this with the concept of race based upon scientific/biological features and this involved no error of law or fact.

84 The respondent also said that the Tribunal, by referring to the United States decision of Saint Francis College v Al-Khazraji (Al-Khazraji) 481 US 604 (1987), was not using that decision as evidence of the respondent's race or the race referred to in the complaint (as submitted by the appellants). The Tribunal was merely drawing, in a permissible way, upon the reasoning in that case to support the conclusion that a socio-political as well as a scientific/biological approach could be taken to the construction of the word "race" in a context such as the present. Thus, the respondent said there was no error on the part of the Tribunal established by the appellants.

85 Consideration. It is perhaps most useful to address in turn each of the particular bases upon which the appellants contend that the Tribunal fell into error in relation to this ground of appeal.

86 Reliance on ASCCEG. The Tribunal admitted into evidence the ASCCEG. It was accepted that this document was developed by the Australian Bureau of Statistics for use in the collection, storage and dissemination of Australian statistical and administrative data relating to ethnic and cultural identity.

87 The substance of the appellants' contention was that it was an error to admit this document because it merely established a classification system which the Australian Bureau of Statistics wished to use in the collection and storage of data. Thus, of itself, this document could have no bearing on the interpretation or application of the ADA. In other words, the document could not be logically probative of any relevant matter.

88 The consideration of whether the Tribunal erred in law by admitting the ASCCEG into evidence must start from the basis that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice - s 73(2) of the ADT Act.

89 That section was the subject of comment in the Court of Appeal in Commissioner for Children & Young People v FZ [2011] NSWCA 111, where Young JA said at [63]:

This sort of provision is not unusual in administrative law and in cases involving child protection. Its scope was analysed by Hodgson J (as his Honour then was) in Roberts v Balancio (1987) 8 NSWLR 436 where he said that the provision gave the Court [or Tribunal in this case] a discretion to act on material which is rationally probative, but the Court must determine in all the circumstances whether it is proper to act on such material and must act fairly towards the parties.

90 In Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273, Meagher JA commented in relation to another tribunal that was not bound by the rules of evidence, at [8]:

In making that determination, the Tribunal is not bound by the rules of evidence and may inform itself on any relevant matter in any such manner as it thinks fit: s 38(1); cl 12, Part 3, Schedule 2. That liberty still makes it necessary for the Tribunal to base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined. Thus it may take into account material which, as a matter of reason, has some probative value in that sense. If material is capable of having any probative value, the weight to be attached to it is a matter for the Tribunal: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 AT 488; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493.

91 Accordingly, it appears that the information upon which the Tribunal may act and the information that is "rationally probative" are closely related to what evidence would be "relevant" as explained in the Evidence Act 1995 (NSW). Section 55(1) of that Act provides:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

92 Applying these principles in the present case, the question for the Appeal Panel is whether the information contained in the ASCCEG can reasonably be regarded as material that tended logically or rationally to show the existence, or the probability of the existence, of a fact relevant to the issues to be determined. If so, it would not be an error of law for the Tribunal to have admitted the document into evidence.

93 It is important to observe here that the ASCCEG contained not only a classification system but also other information. According to the Tribunal's account of the information contained in the ASCCEG, the classification system divided cultural and ethnic groups into nine "broad groups" of which one was "North African and Middle Eastern" which included a "narrow group", "Arab". "Arab" was said to be composed of 14 cultural and ethnic groups: "Algerian, Egyptian, Iraqi, Jordanian, Kuwati, Lebanese, Libyan, Moroccan, Palestinian, Saudi Arabian, Syrian, Tunisian, Yemeni, Arab, n.e.c. (includes Baggara, Bedouin, Omani)".

94 As the Panel understands it, the classification system set out in the ASCCEG is not an arbitrary system unrelated to the reality of cultural and ethnic groups. If it were merely arbitrary or speculative, the appellants' submission may well have some substance. Rather the ASCCEG is a publication of a Federal Government authority and it sets out a classification system to be used for governmental and reference purposes. The classification system appears to be based upon the cultural and ethnic groups which actually exist in the world and the accepted or recognised descriptions of those groups.

95 Furthermore, in addition to setting out the classifications, the ASCCEG also contains substantive information concerning Arabs. It specifically states that the "narrow group 'Arab'" as defined in that document constitutes a "single recognised ethnic or cultural entity".

96 In our view, this material is logically capable of showing, or affecting the assessment of the probability of, facts related to at least two issues. First, whether persons of Mediterranean or Middle Eastern extraction or appearance especially originating from Lebanon or the region about Lebanon could legitimately be described by a reference to a more generic word that is potentially racial in character. The ASCCEG indicates that "Arab" could be used for such a purpose. Secondly, the information that the "narrow group", Arab, is recognised as a single ethnic or cultural entity could rationally affect the assessment of whether Arab is a "race" for the purposes of the ADA, having regard to the inclusive definition in s 4 of the ADA and the indicia of "race" referred to in the authorities. The weight to be attached to that material from the ASCCEG was a matter for the Tribunal - VCF v Lynch at [8].

97 Accordingly, the Panel concludes that there was no error of law on the Tribunal's part in admitting the document into evidence.

98 Not determining whether 'Arab' was a 'race' in accordance with well-settled case law and adopting a 'common understanding' approach. The second and third particular bases upon which it is said that the Tribunal fell into error can conveniently be considered together as they both concern the construction and application of the definition of "race".

99 Determining whether Arab was a "race" for the purposes of the ADA depends in part upon the construction of the word "race" and in part upon the evidence before the Tribunal. The Tribunal correctly noted that "race" is given an inclusive definition in s 4(1) of the ADA. That definition is in the following terms:

"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.

100 Inclusive definitions of this type often have the effect of enlarging the scope of a word beyond its ordinary English meaning - see, for example, Sherritt Gordon Mines v Federal Commissioner of Taxation [1977] VR 342 at 353 and Douglas v Tickner (1994) 49 FCR 507 at 519.

101 In some cases, however, a definition inclusive in form has been held on its proper construction to constitute an exhaustive list of what is included in the word defined - see Dilworth v Stamps Commissioner [1899] AC 99 at 106 and Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 at 219.

102 There is nothing in the definition of "race" in s 4(1) of the ADA, the remainder of s 4 or the scope and purpose of the ADA to suggest that this inclusive definition should be read as being an exhaustive statement of what constitutes "race" for the purposes of the ADA. Indeed, the inclusion of "nationality ... and national origin" as well as "colour" in the definition of "race" suggests that the meaning of the word is being extended by the definition rather than being exhaustively listed. Such an approach would also be consistent with the important remedial purpose of the ADA and with the approach adopted in relation to similar Commonwealth legislation - see Macabenta at 210.

103 Accordingly, the proper construction of "race" involves a consideration not only of the factors or categories listed in the definition in s 4(1) which may be relevant to the circumstances of any particular case but also the ordinary meaning of that word, when used in the context of anti-discrimination legislation.

104 In construing the term "race", the Tribunal referred to the categories set out in the statutory definition and correctly observed that these were ordinary English words indicating a number of ways in which "race" could be identified. The Tribunal also referred to the leading authorities on "race" including King-Ansell v Police [1979] 2 NZLR 531 and Mandla and noted, inter alia, that the term should be understood in a "wide popular sense" and that "ethnic has come to be commonly used in a sense appreciably wider than the strictly racial or biological". Reflecting these matters, the Tribunal said that it adopted a "common understanding" approach to determining in the present case whether Arab was a "race" within the meaning of the ADA. We understand this to mean that the Tribunal was not adopting a strictly scientific or biological approach to the definition of "race" in the ADA. There was no error in what the Tribunal did in this regard.

105 Whilst it is true that the Tribunal did not spell out in detail its reasoning for the conclusion that Arab was a "race" for the purposes of the ADA, we believe it is sufficiently apparent that the Tribunal's reasoning was based upon its express findings that:

(a) the ground for the conduct that constitutes the alleged contravention or contraventions was that the members of the group were Arab (in the sense used in the ASCCEG) or, more fully, people of Arabic descent or ethnic origin - at [50] of its reasons for decision; and

(b) the narrow group, Arab, constituted a single recognised ethnic or cultural entity - at [49].

106 The Panel understands the Tribunal then implicitly reasoned that members of the group allegedly vilified shared a common ethnic origin in that they were from a single, recognised ethnic entity, namely the narrow group, Arab. "Ethnic origin" is one of the categories of "race" found in s 4(1) of the ADA. Applying a "common understanding" approach to those words in the definition, and not a strictly scientific or biological approach, it could then be concluded that Arab (in the sense explained by the Tribunal) was a "race" for the purposes of the ADA. In light of the nature of the material before the Tribunal, especially from the ASCCEG, it was not necessary for the Tribunal to embark for itself upon a detailed analysis of each of the indicia which might be drawn from Mandla at 562 and 569 and which are listed in paragraph 52 of the appellants' written submissions.

107 On this basis, the Panel concludes that the Tribunal did not fall into error by failing to carry out an express analysis of the indicia identified in various cases concerning race. Furthermore, the Panel also rejects the appellants' submission that in performing such an exercise, the Tribunal should have limited its consideration to the words and phrases used to describe a race in the allegedly contravening conduct. There is no warrant for the Tribunal being restricted in this way when it is determining on a final basis whether a complainant has standing under s 88 of the ADA.

108 The Tribunal is required to determine what the relevant characteristic for the purposes of s 88 actually was in all the circumstances. In doing so, it would not be correct for the Tribunal to limit itself only to the words used in the conduct alleged to contravene a vilification provision of the ADA, if in order properly to understand and evaluate that conduct it was reasonably necessary to have regard to the context in which it occurred.

109 Moreover, it is accepted by both sides that the word "race" itself in the ADA does not have a technical meaning but rather its ordinary English meaning. In so far as the Tribunal was using the expression "common understanding approach" to refer to an approach of treating "race" and its definition in the ADA as having their common or ordinary meaning, the Tribunal did not fall into error.

110 On this basis, the Panel regards it as open to the Tribunal to have accepted that the meaning of "race" included relevant meanings such as those set out in the Macquarie Dictionary (Online Ed) as follows:

noun 1. a group of people sharing genetically determined characteristics such as skin pigmentation or hair texture.

2. the differentiation of people according to genetically determined characteristics: genetic studies of race; discrimination on the grounds of race.

...

4. a group of people sharing a language or culture or traditional beliefs or practices: the Scottish race.

111 Thus, if it concluded that the group identified by it as Arab was a group of people sharing a language or culture in that sense and to the requisite degree, it was open to the Tribunal to conclude that Arab was a "race" for the purposes of the ADA. There was evidence before the Tribunal from both the ASCCEG and Mr Ekermawi, of Arabs sharing a language or culture. In this situation, it was also not necessary for the Tribunal to have carried out a detailed consideration of the indicia referred to in Mandla before reaching its conclusion.

112 Accordingly, the Panel concludes that the Tribunal did not fall into error by not determining whether "Arab" was a "race" by reference to a list of indicia found in the case law or by adopting a "common understanding" approach.

113 The Tribunal's use of the United States decision, Al-Khazraji. The appellants assert that the Tribunal was wrong in treating this US Supreme Court decision as decisive on the questions before it. The appellants pointed out that the statutory context and provisions were different in that case from the circumstances and legislation applicable to Mr Ekermawi's case.

114 The Panel does not accept that the Tribunal reached its conclusion 'on the basis of' the decision in Al-Khazraji. At [56] of its reasons for decision, the Tribunal said:

Adopting this approach [a "common understanding" approach rather than searching for a scientific or scholarly meaning], we are satisfied that "Arab" is a race within the meaning of that term in the AD Act. A decision of the United States Supreme Court in 1987 supports that conclusion. The Court rejected the proposition that there were only three races: Caucasoid, Mongoloid and Negroid when deciding that having Arabian ancestry or ethnic characteristics was a race. ...

115 From this, it is clear that the Tribunal reached its decision independently of the US Supreme Court's decision and was merely drawing some support or confirmation for its conclusion from that decision.

116 At the least, the US decision is an example where racial discrimination was held to include discrimination because a person was an Arab. It thus demonstrates that Arab can be described as a "race", in its ordinary English meaning and in an anti-discrimination context. To that extent it can be seen as evidence of English usage of "race" in an anti-discrimination context and does provide some support for the Tribunal's decision.

117 Further, the Supreme Court in that case also rejected the view that "race" in this context referred only to "the three major human races - Caucasoid, Mongoloid, and Negroid" and noted in footnote 4 some of the research which had led "some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature". This was also relevant to the Tribunal's consideration of the matter and was something which the appellants appeared to accept, in the light of their submissions at paragraph 50 of their written submissions.

118 The Tribunal did not fall into error by referring to and seeking to draw support from that decision.

119 In so far as a more general submission was made under this ground that there was no evidence to support the Tribunal's conclusion that Arab was a "race" for the purposes of the ADA, the Panel rejects that submission. That evidence was found in the ASCCEG, as explained above, and the material provided by Mr Ekermawi as to the Arabic language and culture in which he was raised and which he shared with family and friends (see for example [57] of the Tribunal's reasons for decision) in addition to what can legitimately be drawn from the decision in Al-Khazraji as to English usage and the other material referred to by the Tribunal in its reasons.

120 Conclusions. We reject Ground 2 of the notice of appeal.

Extension to the Merits

121 The appellants have also sought to have the appeal extended to the merits under s 113(2)(b) of the ADT Act. The basis put forward by the appellants for this course was that if it is accepted that the complaint is confined to the three comments, the only "race" identified in the three comments is Lebanese. Because Mr Ekermawi is not Lebanese the only finding open is that the respondent does not have standing. In these circumstances, it would be appropriate for the appeal to be extended to the merits so that the Panel could make such findings and dismiss the complaint.

122 As explained above, we do not accept that the only conclusion open on the evidence before the Tribunal is that the only "race" identified in the three comments is Lebanese. Accordingly, the matter could not be disposed of in the simple manner proposed by the appellants.

123 Furthermore, it does not appear to the Panel that there is any other significant factual dispute in this matter, in so far as it is confined at present to the question of the respondent's standing, which could usefully be the subject of an appeal on the merits. We do not understand that the conduct the subject of the complaint is disputed; nor is it disputed that some of the context is contained in the transcript of the full broadcast. From what was said in oral submissions by the appellants, there is no dispute as to the findings made at [57] concerning Mr Ekermawi's background and origins. We have given our reasons above for why there was no error of law in admitting the ASCCEG document.

124 The Panel also takes into account that the complaint has not been finally heard and the decision the subject of this appeal was limited to the question of whether Mr Ekermawi had standing under s 88 of the ADA. This is a further ground why it would not be appropriate to extend this appeal to the merits at this time.

125 Even if the Panel had been minded to find that the Tribunal erred in law in one or more respects contended for by the appellants, the Panel believes it would still have been more appropriate for the matter to have been returned to the Tribunal for further hearing rather than for the Panel to have attempted to deal with an appeal on the merits, given the limited nature of the subject matter of the present appeal.

126 For these reasons the Panel refuses leave to extend the appeal to the merits of the Tribunal's decision.

Order

Appeal dismissed.

Decision last updated: 30 November 2012