APPEALS — appeal from Local Court as of right on questions of law, and by leave on questions of mixed fact and law, under ss 39, 40 of the Local Court Act 2007 (NSW) — where grounds involve only assertions of factual error, or contend errors “in law and fact” in an ultimate conclusion with multiple discrete errors of law, and of fact, alleged by way of submission — questions of law should be pursued independently
ANTI-DISCRIMINATION LAW — constitutionality of ss 38R, 38S, prohibiting transgender vilification, and s 108, providing relief therefor, of the Anti-Discrimination Act 1997 (NSW) — whether Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128, upholding constitutional validity of equivalent provision on homosexual vilification, is binding — whether error in enjoinder, public notice and damages for default ordered under s 108
Quick Take
1The decision of the Court of Appeal in Sunol v Collier (No 2) upholding the constitutional validity of the equivalent homosexual vilification provision is binding on a single judge in relation to ss 38R and 38S of the Anti-Discrimination Act 1977 (NSW), notwithstanding the subsequent development of structured proportionality analysis in McCloy v New South Wales, because structured proportionality is a tool for analysing the same question of whether a law is reasonably appropriate and adapted to a legitimate purpose.
2Section 108(2)(c) of the Anti-Discrimination Act 1977 (NSW) authorises orders requiring publication of a corrective notice (distinct from an apology under s 108(2)(d)) as a reasonable act to redress loss or damage suffered by a complainant, but such orders must be time-limited and directed at redressing harm rather than stigmatising the respondent.
3Section 108(7) permits default damages only for non-compliance with orders under s 108(2)(b), (c), (d) or (e), not for non-compliance with a compensatory damages order under s 108(2)(a); and an enjoinder order under s 108(2)(b) must be sufficiently tailored to the conduct found to be unlawful vilification and must not impermissibly hamper lawful expression.
