FEDERAL COURT OF AUSTRALIA
Bharatiya v Antonio [2022] FCA 428
File number: WAD 175 of 2021 Judgment of: COLVIN J Date of judgment: 26 April 2022 Catchwords: HUMAN RIGHTS - claim by applicant under s 18C of the Racial Discrimination Act 1975 (Cth) against neighbour (respondent) - where applicant claims respondent breached s 18C by using racist and insulting language on three occasions - where descriptions of the applicant as a 'cockroach' and 'parasite' admitted by the respondent - where the first act occurred at the applicant's front gate - where the second act occurred in the respondent's driveway - where the third act took place in the early hours of the morning on the respondent's property in the absence of the applicant - whether the acts were done 'otherwise than in private' - whether the acts were reasonably likely to offend, insult, humiliate or intimidate a hypothetical person in the circumstances of the applicant - whether the acts were done for a statutory reason - whether the words used in doing the acts were chosen for a statutory reason - whether an apology should be ordered - declaration of unlawfulness ordered - compensatory damages under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) ordered - consideration of circumstances in which compensatory damages should not be exercised as a matter of discretion Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Racial Discrimination Act 1975 (Cth) ss 18B, 18C
Cases cited: Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105
Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352
McMahon v Bowman [2000] FCMA 3
Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243
Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 71 Date of hearing: 13 April 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person ORDERS
WAD 175 of 2021 BETWEEN: BEJOY KRISHNA BHARATIYA
Applicant
AND: ROBERT ANTONIO
Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
26 APRIL 2022
THE COURT ORDERS THAT:
1.It is declared that the respondent engaged in acts that are unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) in that:
(a)on 29 July 2021, the respondent while standing at the front gate of the applicant's home and in the presence of the applicant shouted abuse at the applicant calling him 'a bloody cockroach' and 'a parasite' which he did for reasons that included the Indian ethnicity of the applicant which act was reasonably likely, in all the circumstances, to offend, insult, humiliate…
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- AGLC
- Bharatiya v Antonio [2022] FCA 428
- Case
- [2022] FCA 428
- Decision Date
CaseChat Overview and Summary
The court found that Antonio's conduct was indeed unlawful under section 18C of the Racial Discrimination Act 1975 (Cth). The judge emphasised that while the statutory power to order an apology exists, it is generally inappropriate in cases where the individual defending the conduct insists on maintaining their position. Therefore, no order for an apology was made. However, the court granted a declaration of unlawfulness to admonish the conduct and clarify the legal position for future cases. The court also awarded compensatory damages to Bharatiya, considering the circumstances in which compensatory damages should not be exercised as a matter of discretion.
The court ordered that Antonio engaged in acts that were unlawful under section 18C of the Racial Discrimination Act 1975 (Cth), specifying the instances of discriminatory conduct. Antonio was ordered to pay Bharatiya damages in the amount of $750 and reimburse $132 for process server fees. The court also set deadlines for the parties to file affidavits and submissions in support of, or in answer to, any claim for legal costs, and directed that the assessment of costs be undertaken on the papers without the need for further appearance.
Orders
Orders of the court
1. It is declared that the respondent engaged in acts that are unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) in that:
(a) on 29 July 2021, the respondent while standing at the front gate of the applicant's home and in the presence of the applicant shouted abuse at the applicant calling him 'a bloody cockroach' and 'a parasite' which he did for reasons that included the Indian ethnicity of the applicant which act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicant; and
(b) on 12 January 2021, the respondent while standing in his front driveway said in the presence of the applicant and of the applicant: 'This is what happens when parasites are let into Australia … Cockroaches' which he did for reasons that included the Indian ethnicity of the applicant which act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicant.
2. The respondent do pay to the applicant damages by way of compensation in the amount of $750.
3. The respondent do pay to the applicant the amount of $132 by way of reimbursement of process server fees incurred by the applicant.
4. On or before 6 May 2022, the applicant do file and serve any affidavit and submissions in support of any claim for legal costs.
5. On or before 20 May 2022, the respondent do file and serve any affidavit and submissions in answer to any claim for legal costs.
6. The question whether there should be any order for costs and the assessment of costs on a lump sum basis pursuant to any such order be undertaken on the papers without the need for further appearance.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The authorities concerned with the circumstances in which it may be appropriate to order an apology were carefully considered by Mortimer J in Wotton v State of Queensland (No 5) [2016] FCA 1457 at [1550]‑[1596]. In a case like the present where the conduct concerns the actions of one person directed to another (without any sense in which the individuals may be representing some organisation, institution or corporate entity) and the individual insists on defending the conduct, it is difficult to see what purpose would be served by forcing that person to speak words which would be devoid of the sincerity required for an apology to be able to have any prospect of salving offence. In such instances, the observation of Hely J in Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at [245] that 'the idea of ordering someone to make an apology is a contradiction in terms' has considerable force. It is a view with which other judges have expressed agreement. Which is not to say that in appropriate circumstances, the statutory power conferred by s 46PO(4)(b) of the AHRC Act to order a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant might not be exercised so as to require a person who has engaged in conduct that is unlawful under the RD Act to publish some form of statement. However, in the circumstances of the present case, in my view no purpose would be served by ordering Mr Antonio to express the words of an apology to Mr Bharatiya. I decline to make such an order.The claim to an order by way of declaration of unlawfulness For reasons I have given, I am satisfied that certain of the conduct of Mr Antonio was unlawful. A declaration serves the purpose of admonishing the conduct and also making clear the position for future cases. I am satisfied that it is appropriate to grant the order sought but confined to the conduct I have found to be unlawful. I will make orders in relation to the acts on both occasions. Had the proceedings been confined to the second occasion, I would have been inclined to refuse to grant relief on discretionary grounds. As explained below, of itself, the conduct was not sufficiently serious to justify court proceedings.The claim to compensation The Court has power to award damages by way of compensation for any loss or damage suffered because of the conduct of a respondent found to have been unlawful discrimination: s 46PO(4)(d) of the AHRC Act. In making that assessment, the Court may be guided by the general principles governing the assessment of damages bearing in mind that the Court is exercising a statutory power and it is a matter of statutory construction (including by reference to any evident statutory objects and purposes) that may inform the correct approach: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 at [27]‑[30] (Kenny J), [124]‑[130] (Besanko and Perram JJ). The damages which can be awarded under s 46PO(4) are entirely compensatory. The statutory remedy of damages is discretionary in character. It allows an award of an amount which does not fully compensate for the loss suffered: Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at [94] (French and Jacobson JJ). If there is reason to refuse relief in the exercise of discretion then the Court may do so. Therefore, a finding that conduct was unlawful does not give rise to a statutory right to damages by way of compensation.