Burns v Dye

[2002] NSWADT 32

CITATION:	Burns -v- Dye [2002] NSWADT 32
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT John Dye
FILE NUMBER:	991115
HEARING DATES:	09/05/2001, 10/07/2001, 20/09/2001, 08/11/2001
SUBMISSIONS CLOSED:	11/08/2001
DATE OF DECISION:	03/12/2002
BEFORE:	Britton A - Judicial Member; Silva A - Member; Toltz D - Member
APPLICATION:	Vilification - Homosexual
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Defamation Act 1974
CASES CITED:	Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98 Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102 Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 R v Ashley (1991) 77 NTR 27 Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268 R v D and E Marinkovic [1996] EOC 92-841 Anderson v Thompson [2001] NSWADT11 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 Hellenic Council of NSW v Apoleski and the Macedonian Youth Association (1995) NSWEOT 25/9/1997 Malco & others v Massaris & others (1998) NSWEOT 12/2/1998 Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 O’ Callaghan v Loder [1984] EOC 92-023 Waterhouse v Bell (1991) 25 NSWLR 99 Callaghan v. Wm C. Lynch Pty Ltd (1961) 79W.N. (NSW) 830 Hall v Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT J Hunter, solicitor (all days); M Bateman, barrister (10 July 2001) RESPONDENT M Konda, solicitor (9 May 2001); L Karp, barrister (10 July 2001; in person (20 September 2001); A Sullivan, barrister ( 8 November 2001)
ORDERS:	1. The respondent to pay to the complainant the sum of $1000 within 28 days of the date of these orders; 2. The respondent send a letter of apology in the terms as set out in Annexure A within 28 days of the date of these orders.

1 These proceedings concern a complaint of homosexual vilification made by Gary Burns against his neighbour, John Dye. Mr Burns who describes himself as openly homosexual, alleges that Mr Dye subjected him to various forms of abuse and harassment contrary to s 49 ZT of the Anti-Discrimination Act 1977 (the Act).

2 On 29 November 1999 the President of the Anti-Discrimination Board (respectively the President and the Board) referred Mr Burns’ complaint to the Administrative Decisions Tribunal (the Tribunal) under s 91(2) of the Act.

Procedural Issues
Procedural Issue 1: Offence of serious homosexual vilification
3 Mr Burns wrote to the Board on 5 October 1999 alleging he had been continually abused and harassed by Mr Dye because he was homosexual.

4 Section 89B(1) of the Act provides that the President, after investigating a vilification complaint but before endeavouring to resolve the matter by conciliation, shall consider whether an offence may have been committed under s 49ZTA. That section provides:

Offence of serious homosexual vilification
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include:
(a) threatening physical harm towards, or towards any property of, the person or group of persons, or
(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.
Maximum penalty:
In the case of an individual-10 penalty units or imprisonment for 6 months, or both.
In the case of a corporation-100 penalty units.
(2) A person is not to be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution.
5 Section 89B(2) of the Act states that, if the President considers that an offence may have been committed under s49ZTA, he/she shall refer the complaint to the Attorney General. Accordingly in a letter dated 29 October 1999 the President referred Mr Burns’ complaint to the Attorney General and the Director of Public Prosecutions.

6 On the same day the President, as required by s 89B(4) of the Act, advised Mr Burns of his rights under s 91(1) to have his complaint referred to the Tribunal and Mr Burns chose to do so.

7 Mr Burns’ case appeared to proceed on the mistaken assumption that the offending conduct of which he complains constituted an offence of serious homosexual vilification pursuant to s49ZTA(1) of the Act. However the Attorney General did not consent to the prosecution of Mr Dye and accordingly the complaint cannot be considered under that section and accordingly the substantive provision for determining Mr Burns’ complaint is s49ZT.

Procedural Issue 2: Incidents following the notification of the complaint
8 Section 96 of the Act is critical to the Tribunal’s jurisdiction to entertain a complaint made under the Act. Section 96 provides: “The Tribunal shall hold an inquiry into each complaint or matter referred to it under section 91(2)…”

9 In this case the alleged contravention of the Act was initiated by way of a written complaint to the Board. The source of the Tribunal's power to hold an inquiry is the referral of that complaint by the President. The authorities make clear that the Tribunal has no jurisdiction to inquire into alleged events that fall outside the period identified by the written complaint: Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 [at 16].

10 Some of the alleged incidents said to involve Mr Dye occurred after the date of the initiating complaint and referral of that complaint to the Tribunal. In respect of other allegations the evidence is inconclusive as to when they occurred. Such incidents are outside our jurisdiction and cannot form the subject of our inquiry.

Relevant Legislation
11 Section 49ZT(1) provides:

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 homosexuality of the person or members of the group.
12 Section 49ZT(2) sets out certain exceptions:
(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 comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
13 Section 49ZS defines public act to include:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and
(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
Elements of Homosexual Vilification
14 To succeed in a complaint of homosexual vilification the complainant must establish on balance that the respondent committed:
• a public act
• which incites
• hatred towards, serious contempt fot or severe ridicule of a person or group of persons
• on the ground of the homosexuality of the persons or members of that group.
Public Act
15 Section 49ZS as set out at [13] of these reasons broadly defines a “public act” to include any form of communication to the public, any conduct observable to the public and the distribution or dissemination of any matter to the public.

16 As noted by the NSW Law Reform Commission in Report 92, “Review of the Anti-Discrimination Act 1977 (NSW)” at p537, recent decisions in other jurisdictions shed some light on what is meant by the words “the public” in the context of s 49ZS. “The public” has been held to include the possibility of being overheard by (R v Ashley (1991) 77 NTR 27 at 30) or visible to passers by, even if the act took place on private property: Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268.

17 In R v D and E Marinkovic [1996] EOC 92-841 the Equal Opportunity Tribunal held that the placing of a note on the complainant’s front door constituted a “public act” even though the block of units was not open to the public at large and was accessible only to residents and their visitors.

18 In the more recent decision Anderson v Thompson [2001] NSWADT11, the Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public. Although there were no eyewitnesses the words were spoken with such force they could be overheard by other residents.

Incitement
19 The racial vilification provisions of the Act are similar to the provisions dealing with homosexual vilification and were considered in the recent decisions of Kazak v John Fairfax Publications Limited [2000] NSWADT 77 and Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 (both on appeal). Both examined in some detail the element of incitement and from them the following principles may be distilled. First, the word ‘incite’ is to be given its ordinary natural meaning which is to “urge, spur on, . . . stir up, animate; stimulate to do something” (New Shorter Oxford English Dictionary, 1993) (Oxford); “urge on; stimulate or prompt to action” (the Macquarie Dictionary, third edition, 1997) (Macquarie).

20 Second, the vilification provisions of the Act do not make unlawful the use of words that merely convey hatred towards a person, or the expression of serious contempt or severe ridicule: Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 at 78-266.

21 Third, proof of intention to incite, or that anyone was in fact incited, is not required. As noted in Western Aboriginal Legal Service Limited v Jones & Anor [at 93]:“It is the capacity of the public act performed by a person which is significant, rather than the intent of the person who performed that act. Further, it is the likely effect rather than the actual effect of the public act which is significant.”[While this approach has been consistently adopted it does not enjoy universal support. See for example Hellenic Council of NSW v Apoleski and the Macedonian Youth Association (1995) NSWEOT 25/9/1997 and Malco & others v Massaris & others (1998) NSWEOT 12/2/1998. The contrary view is that the introductory words of the relevant provisions make clear that a subjective intention to incite on the part of the vilifier is critical: “it is unlawful for a person, by a public act, to incite hatred etc…” We note that the NSW Law Reform Commission in “Review of the Anti-Discrimination Act 1997 (NSW), Report 92” at p 542 recommends that the Act be amended to put beyond doubt that proof of specific intention is not required in respect of the civil provisions of the Act dealing with vilification.]

22 Four, the audience or potential audience of the public act should be assumed to be the “ordinary reasonable person” as defined by the Australian Broadcasting Tribunal in Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 at 357 and quoted with approval in Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at p.10:

The test to be applied is, in the Tribunal’s view, an objective one. The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal’s view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views.
Hatred towards, serious contempt for or severe ridicule
23 The third element the complainant must establish is that the public act must be capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons . These words are to be given their ordinary dictionary meaning. Kazak v John Fairfax Publications Limited [at 40] set out the following definitons :
• “hatred” means “intense dislike; detestation” (Macquarie), “a feeling of hostility or strong aversion towards a person or thing; active and violent dislike” (Oxford);
• “serious” means “important, grave” (Oxford); “weighty, important” (Macquarie);
• “contempt” means “the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account”(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie);
• “severe” means “rigorous, strict or harsh” (Oxford); “harsh, extreme”(Macquarie);
• “ridicule” means “subject to ridicule or mockery; make fun of, deride, laugh at”(Oxford); “words or actions intended to excite contemptuous laughter at a person or thing; derision” (Macquarie).
On the ground of the homosexuality of the person or members of the group
24 Finally it must be established that the offending public act must incite hatred towards, serious contempt for or severe ridicule of a person or a group of persons on the ground of the homosexuality of the person or members of the group . We note that s 4A of the Act does not apply to vilification complaints. Section 4A provides that in relation to complaints of unlawful discrimination, where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, (whether or not it is the dominant or substantial reason), then that act is taken to be done for that reason. Consequently in the context of s 49ZT it is helpful to look at relevant cases, which dealt with the meaning “on the grounds of” before the 1994 amendment to the Act, inserting s 4A, took effect. Mathews DCJ in O’ Callaghan v Loder [1984] EOC 92-023 at 75,499 took the view that the phrase “on the ground of” meant a “significant factor,” “a substantially contributing factor” and “a causally operative effect”. Her Honour used these terms interchangeably. In Waterhouse v Bell (1991) 25 NSWLR 99 at p 106. Clarke JA used the phrase “an operative ground”.

Evidence
Background
25 Mr Burns began living at Housing Commission units located in Woolloomooloo, Sydney (the Woolloomooloo units) on or about 30 August 1999. His was one of six units located on the ground floor of a block of 24. The respondent, Mr Dye, lived in Unit 11, directly above Mr Burns’ unit. Mr Collins lived in the unit next to Mr Burns, moving in shortly after his neighbour on 1 September 1999.

26 Mr Burns alleges that since moving to the Woolloomooloo units he has been continually harassed by Mr Dye and gave evidence of the alleged incidents as set out below. On the final day of hearing counsel for the respondent, Ms Sullivan, concedes that Mr Dye on occasion did call Mr Burns offensive names, such as “faggot” or “poofter”, but otherwise all allegations are denied.

Allegation 1-Verbal Abuse
27 Mr Burns gave evidence that on his first night at the Woolloomooloo units, he met Mr Dye; pleasantries were exchanged. He excused himself as he was exhausted from the move. On the following night, according to Mr Burns, Mr Dye knocked at his door and said, “you’re a fucking faggot aren’t you” and later started to kick the door, shouting, “cock sucker” “faggot cunt” and other offensive names. This continued throughout the evening.

28 Mr Burns claims this behaviour was repeated regularly.

29 Mr Collins gave evidence that when he moved to the Woolloomooloo units on 1 September 1999 he met Mr Burns who said he was experiencing problems with a tenant who lived upstairs, disrupting him at night.

30 Mr Collins said, in the early hours of 2 September he met with Mr Dye who said, “Have you met Mark Holmes from the Department of Housing? He is a fucking faggot…Have you met your neighbour. He’s a poofter shit pumping cunt too.” According to Mr Collins Mr Dye appeared to be intoxicated. Later that evening he heard Mr Dye scream from the corridor: “Faggot Burns come out and talk to me.” Mr Collins said this verbal abuse continued and Mr Burns then came to his unit saying, “I am terrified”. According to Mr Collins the abuse continued throughout the evening.

31 Mr Burns gave evidence that Mr Dye often called him offensive names. In cross-examination Mr Burns said on some occasions Mr Collins was present but he could not be sure if anyone else was present.

32 In oral evidence Mr Burns broadened the allegations set out in his written statement claiming that Mr Dye on occasion shouted out to him on the street and in the supermarket, “Fucking Burns I’m going to burn you.” In re-examination Mr Burns said he could not recall the precise date Mr Dye verbally attacked him in the supermarket but thought it may have occurred after Mr Dye moved out of the Woolloomooloo units.

33 In evidence Mr Dye said he had trouble remembering specific dates, times and places and could not recall calling Mr Burns a “fucking cunt” but agreed that he may have done so. Mr Dye denied using the words “faggot” and “poofter” in relation to Mr Burns. [This claim was later retracted by counsel for Mr Dye.]

Allegation 2: Long weekend October 1999
34 Mr Burns gave evidence that on Sunday evening of the October long weekend, 1999 (the October long weekend), he was watching television when he heard a scratching noise at his front door, which he ignored. Two hours later he inspected the door and saw a drawing of a large penis and the words, “fag lives here, faggots should die”. He said he did not see who defaced the door.

35 Mr Salvanda, a resident of the Woolloomooloo units, gave evidence that on his return from work on 3 October 1999 at about 9.30 pm he observed Mr Dye apparently drawing on the front door of Mr Burns’ unit with a texta pen. As he walked by, Mr Dye ran off shouting, “That fucking faggot, Burns – I’ll burn you Burns, you cocksucker.” In cross-examination Mr Salvanda said he did not notice graffiti on Mr Burns’ door when he first saw Mr Dye but did notice it on his return after dropping off his possessions in his apartment.

36 In cross-examination Mr Burns said he promptly rubbed off the offending graffiti but an outline remains visible to this day. No documentary evidence was tendered in support of that claim.

37 Mr Burns said that at about 5am on the following morning, October 4, he heard glass being smashed and opened his front door to observe Mr Dye running along the corridor. He claims he chased Mr Dye for a short distance, without success, and on his return found that the keyhole of his front door had been glued. The police were called and Mr Burns made a formal complaint.

38 The attending officer, Constable Moreton gave evidence that he observed a smashed Crown Lager bottle at the doorstep of Mr Burns’ unit and that the keyhole of the front door had been glued. In cross-examination he could not recall whether he saw any graffiti on Mr Burns’ door. The relevant extract from Constable Moreton’s notebook made no reference to graftti. The only description of the incident noted was the phrase, “Mal Damage”.

39 Mr Dye denied drawing or writing on Mr Burns’ door. He claimed that he did not drink Crown Lager: it was not to his taste and too expensive.

40 According to Constable Moreton the beer bottle was tested for fingerprints. The only prints identified belonged to Mr Collins, who said he picked up the smashed bottle after seeing it lying in the corridor.

41 Constable Moreton said he had attempted to speak to Mr Dye after he had interviewed Messrs Burns and Collins, but could not locate him. Later, at about 3.50am the following morning, Tuesday October 5, he saw Mr Dye at a local service station, approached him and said, “Mr Dye you are under arrest for the offence of intimidation.” To which he claimed Mr Dye replied, “That fucking faggot Burns has caused this hasn’t he?”

42 In evidence Mr Dye denied ever calling Mr Burns a cocksucker. However he agreed that he did say “that fucking cock-sucking Burns” when arrested on the morning of 5 October.

43 Mr Dye claimed he spent the October long weekend with his friend, Bruce Adams. He said he could recall little about that weekend other than arriving at Dr Adams’ house in Waterloo at about 6pm on Friday evening and leaving about the same time the following Monday. Dr Adams gave evidence that he had known Mr Dye for about 25 years. Mr Dye frequently stayed with him on weekends and stayed with him on the October long weekend. His recollection of Mr Dye’s arrival and departure times corresponded with those given by Mr Dye in evidence. According to Dr Adams, Mr Dye did not leave his house at any time over that weekend. He said Mr Dye did not have keys to his house and could only enter if the door was unlocked for him.

44 Dr Adams gave evidence that Mr Dye's solicitor asked him to give a statement about Mr Dye’s whereabouts on the October long weekend a few weeks after that weekend. He could not recall precisely when he made the statement.

45 In cross-examination it was put to Dr Adams that as Mr Dye was a frequent weekend visitor it was simply implausible that he could recall with any certainty a weekend visit that happened over three years ago. Dr Adams insisted that his recollection was accurate although conceded that the October long weekend was unremarkable.

Allegation 3: Backyard incidents
46 Mr Burns gave evidence that on one occasion Mr Dye entered his backyard without permission and he called out, “Fuck off out of my yard.” Mr Dye replied, “Fuck off Burns”. According to Mr Burns Mr Dye then proceeded to yell sexually-oriented abuse at him.

Allegation 4: Faeces Incidents
47 Mr Burns gave evidence that he often found cigarette stubs, faeces and urine smeared on and around his front door. He said he did not see who did these acts but he concluded that the perpetrator was Mr Dye as he had no problems with any of the other tenants in the building.

48 Mr Collins gave evidence that on various occasions during the period 2 September 1999 to March 2000 he saw Mr Dye buzzing the complainant’s doorbell throughout the night and depositing faeces and urine on his front door.

49 Mr Collins said that on 11 January 2000 he observed through the peephole of his front door Mr Dye urinating on Mr Burns' doorstep.

50 Mr Burns’ treatment of Mr Dye Mr Dye claims that Mr Burns often said to him he was mad and should be locked up and on medication. Dr Adams gave evidence that Mr Dye often said to him he felt persecuted by Mr Burns and did not know what had caused him to be so treated.

51 Use of Alcohol Dr Adams gave evidence that, in his view, Mr Dye did have a problem with alcohol although he did not consider him to be an alcoholic. According to Dr Adams, when Mr Dye is intoxicated his “character changes 180 degrees”. On such occasions, according to Dr Adams, Mr Dye often used abusive language.

52 Mr Dye’s literacy skills Mr Dye gave evidence that he can write only his name and a few simple words, and can read little. According to Dr Adams Mr Dye is a simple man of limited intelligence who seeks his assistance to fill out forms and deal with paperwork. He claims he has attempted to teach Mr Dye to read without success.

Findings and conclusions
53 We will now make findings about each of these alleged incidents and determine whether Mr Burns has proven on balance, to the Briginshaw standard, all necessary elements of s 49ZT(1).

Allegation One –Verbal Abuse
54 We find that Mr Dye, throughout the evening of September 1 1999, kicked Mr Burns’ front door and in a loud voice repeatedly abused Mr Burns using offensive names including ‘cocksucker’, ‘faggot cunt’ and other abusive names. He was drunk and incoherent. This abuse was repeated on at least one other occasion. Mr Burns’ allegation that he was verbally abused by Mr Dye at the local supermarket and on the street post date the initiating complaint and therefore we are without jurisdiction to entertain these allegations.

Does this conduct constitute homosexual vilification?
55 We find that this verbal abuse, conducted from the hallway of the Woolloomooloo units, an area open to residents and guests, constitutes a form of communication to the public, even though only a small section of the public. The abuse was overheard by Mr Collins and therefore was capable of being overheard by other neighbours and their guests.

56 Can it be said that this act incited hatred towards, serious contempt for, or severe ridicule of Mr Burns on the grounds of his homosexuality? In determining these issues we follow the approach outlined in Western Aboriginal Legal Service Limited v Jones & Anor [at 138] and ask:

Would the ordinary reasonable person have understood Mr Dye to be targeting and/or referring to Mr Burns?

If so, would Mr Dye’s conduct have incited or have the capacity to incite the ordinary reasonable person to feel hatred towards, or serious contempt for, or severe ridicule of Mr Burns on the grounds of his sexuality?

57 In our view, it would be apparent to the hypothetical ordinary reasonable person that Mr Burns was the target of Mr Dye’s abuse. The evidence indicates that Mr Burns’ name was used for at least part of the tirade and the door of his unit kicked repeatedly.

58 We turn now to the second question. There is no direct evidence that Mr Dye intended to, or did in fact incite anyone. Nor are we satisfied that such inference can be drawn. Can it be said, however, that Mr Dye’s relevant conduct had the capacity to incite.

59 It is useful at this point to look carefully at the words used by Mr Dye. According to Mr Burns on the evening of September 1, “cock sucker” “faggot cunt” and other offensive names were used. Mr Collins’ recollection is that Mr Dye said, “Faggott Burns come out and talk to me.” The evidence is somewhat unclear as to how long this abuse continued on that night and precisely what was said on subsequent occasions.

60 Ms Sullivan for Mr Dye, submits that the words “poofter” and “faggot” are now part of the popular vernacular and are understood within the community to connote general terms of insult. She maintains that it can no longer be said that these words have a meaning exclusively related to homosexuality. Ms Sullivan likens these terms to the word “bastard”, at one time a term of abuse used to describe a person born outside marriage, but are now understood to hold a more general meaning.

61 While we accept that over time certain terms of abuse take on a more general connotation we find that the words “poofter” and “faggot” retain a specific meaning: they are derisory terms used for homosexual males. (In certain circumstances, such as when used by homosexual male friends between themselves, they may not be used in an insulting way but it is clear that they were insulting in the circumstances of this case.)

62 It does not follow automatically that verbal abuse directed at a homosexual person or persons that includes words understood to be insulting of homosexuals, is capable of inciting the requisite ill-feeling required to establish a complaint of homosexual vilification. The circumstances in which the abuse occurred are critical. Relevant factors will include the context in which the abuse occurred, the tone of voice used by the alleged vilifier and the observable relationship between the vilifier and his/her victim.

63 To establish capacity to incite, it is not enough in our view to merely prove that the offending communication identified or “outed” Mr Burns as homosexual. Nor is it sufficient to prove that the victim was deeply wounded or concerned for their privacy, or indeed safety. It is also insufficient to establish that the conduct simply conveyed hatred towards a person, or the expression of serious contempt or severe ridicule: (Wagga Wagga Aboriginal Action Group v Eldridge).

64 Mr Burns must establish, on balance, that all or part of Mr Dye’s conduct was capable of urging on, stimulating, or prompting to action the ordinary reasonable person to the requisite feelings of ill will towards Mr Burns. How would such person react on hearing Mr Dye’s attack on Mr Burns? In our view a section of the community would have dismissed this conduct as the rantings of a drunken, possibly mentally-ill individual and, if anything, the attack may have engendered feelings of hatred towards, serious contempt for, or severe ridicule of Mr Dye himself.

65 Could the same be said, however, for the ordinary reasonable person, to use the language of the Casey test, “not immune from susceptibility to incitement, nor holding racially prejudiced views”? It is not in issue that Mr Dye is a simple, poorly educated man. The evidence shows, on the evening of 2 September in a drunk and incoherent state he hurled abuse at Mr Burns. Mr Dye’s rantings would have made it abundantly clear to the hypothetical observer that he hated or held feelings of serious contempt for Mr Burns (at least while in that drunken state). However we are not comfortably satisfied that this abuse would have incited the same feelings in third parties, including those not immune from susceptibility to incitement or prejudice. In our view, an observably drunk Mr Dye who, from the evidence available, from outward appearances would not appear to enjoy any position of respect or influence, would be unlikely to influence, urge on or prompt, any witness to this assault to feelings of ill will towards Mr Burns. This is not to suggest that it is necessary to establish that the vilifier commands a position of influence or power over the victim or his/her audience (or potential audience) but rather that in certain situations this may be a relevant consideration.

66 Taking into account all relevant factors, we are not comfortably satisfied that the offending abuse constitutes conduct capable of inciting hatred towards, or serious contempt for, or severe ridicule of Mr Burns on the grounds of his sexuality. Accordingly the Tribunal finds that this incident does not constitute homosexual vilification within the meaning of the Act and the complaint in respect of this allegation is dismissed.

67 In reaching this conclusion we recognise that Mr Dye’s language and behaviour was not only highly offensive but also an unwelcome and threatening intrusion into Mr Burns’ life. We do not condone his behaviour, which we condemn.

Allegation 2: October long weekend
68 The main allegation made by Mr Burns concerns the long weekend of October 1999. The evidence shows that Mr Burns’ door was defaced, a beer bottle smashed outside his unit and his front door lock damaged. The critical factual issue is whether Mr Dye committed these acts.

69 For Mr Dye it is submitted that the evidence establishes he was not at the Woolloomooloo units at any time during the October long weekend, and in any event was incapable of defacing Mr Burns’ front door in the manner alleged, as he cannot write.

70 The only evidence linking Mr Dye with these incident is Mr Burns’ claim, supported by complaint evidence, that he heard the smashing of glass, opened his front door and saw Mr Dye running down the corridor. In respect of the graffiti incident, Mr Salvanda's evidence is alone in supporting Mr Burns’ contention that Mr Dye was responsible. There is no direct evidence that Mr Dye tampered with the lock.

71 Critical to these allegations is Mr Dye’s claim that he spent the entire weekend at Dr Adams’ residence in Alexandria. The evidence shows that, while a regular weekend visitor at Dr Adams’ home, Mr Dye sometimes stayed with other friends, and on occasion remained at home.

72 Mr Dye claims to have difficulty remembering specific dates and times. In cross-examination, when questioned about various events (unrelated to the long weekend), he repeatedly stated he had no recollection of them. And yet, when questioned about the October long weekend his evidence was unequivocal: he not only remembered being at Dr Adams’ for the whole weekend but claimed to be able to remember relatively minor details such as phoning Dr Adams to make arrangements for his visit; being welcomed by Dr Adams on his arrival; and departing the following Monday. Yet he was unable to recall any other details about his stay.

73 Dr Adams corroborated Mr Dye’s claim about his whereabouts over that weekend. According to Dr Adams, Mr Dye spent the entire weekend at his house. Dr Adams claimed Mr Dye could not have left the house without his knowledge as Mr Dye did not have a key and could only re-enter if the door was unlocked for him.

74 Like Mr Dye, Dr Adams could not remember any distinguishing features about the relevant weekend other than the fact that a few weeks later he gave a detailed statement to Mr Dye’s solicitors about his friend’s whereabouts during that weekend. Dr Adams suggested in evidence that the preparation of this statement, shortly after the weekend assisted his recall.

75 On the other hand, there is some evidence that Mr Dye was at the Woolloomooloo units for at least part of the weekend. Mr Burns claims to have seen Mr Dye outside his front door in the early hours of Monday morning. Of course, Mr Burns is hardly an unbiased or independent witness. He had a poor relationship with Mr Dye for which, if Mr Dye’s account is accepted, he was partly responsible.

76 Mr Salvanda’s evidence places Mr Dye at the Woolloomooloo units on Sunday evening at about 9.30 pm, and, in our view, is reliable. There is nothing before us to suggest that Mr Salvanda was in any way involved in the ongoing dispute between Messrs Burns, Collins and Dye or had any reason not to give a truthful account. When tested, his account of seeing Mr Burns at the door was consistent.

77 This leaves us with Dr Adams’ apparently inconsistent account of Mr Dye’s whereabouts. There are a number of explanations, which may explain this conflicting evidence. It may be that Mr Dye left the house without Dr Adams' knowledge for part of the weekend. It may be that Dr Adams was mistaken about when Mr Dye left and that he in fact left at 8pm on Sunday (as he usually did) and not 8pm the following evening. Or it may be, as suggested by Mr Hunter for Mr Burns, that Dr Adams is simply protecting his friend.

78 However, even if Mr Dye did not spend the entire weekend with Dr Adams, this does not prove that he behaved in the manner complained of by Mr Burns.

79 Mr Hunter submits that Mr Dye’s unprompted statement, “That fucking faggot Burns has caused this hasn’t he?” when approached by Constable Moreton on the Tuesday morning following the October long weekend, is strong evidence of Mr Dye’s guilt. Mr Hunter invites us to draw the inference that Mr Dye was well aware that he was being questioned about the graffiti and bottle-smashing incidents. Ms Sullivan submits that Mr Dye’s statement of itself cannot be elevated to an acknowledgment of guilt and must be seen in the context of the strained relationship that existed between the parties.

80 We turn finally to Mr Dye’s claim that he was and remains incapable of writing the graffiti allegedly found on Mr Burns’ door. Mr Dye is an invalid pensioner in receipt of a disability support pension. His evidence was that he could only read “a few sentences, small words, stuff like that” and was unable to write anything other than a few simple words. This is supported by Dr Adams.

81 Mr Salvanda’s evidence identifying Mr Dye at Mr Burns’ door with what appeared to be a texta pen and, minutes later, observing graffiti on that door, is powerful circumstantial evidence. Mr Dye’s denials in cross-examination about the use of certain language addressed to Mr Burns, later retracted by his Counsel, certainly go to the question of credit but may also go to a consciousness of guilt. Without deciding this last issue, we are satisfied that Mr Salvanda is a credible witness and that Mr Dye’s account is unsatisfactory. It is clear that Dr Adams was anxious to support his friend. This is not to say that we conclude that he lied on Mr Dye’s behalf but it was evident that he was inclined to offer evidence which tended to place Mr Dye in as favourable a light as possible without telling actual untruths. For this reason, and because the alibi is contradicted by an independent eyewitness, we consider that Dr Adams’ alibi evidence is not reliable. All of this leads us to find, on balance, that Mr Dye was the author of the offending graffiti.

Do the October long weekend incidents constitute unlawful homosexual vilification?
82 Before proceeding to consider the evidence about the bottle smashing and lock tampering incidents, we make some general comments on the operation of s 49ZT(1). Certain conduct capable of constituting unlawful homosexual vilification can also constitute a separate offence under the Summary Offences Act 1988 (NSW) or Crimes Act 1900 (NSW). Examples include the offences of offensive conduct, intimidation and common assault. However s 49ZT is substantially different in character and does not catch all criminal or offensive behaviour directed at homosexual person or persons. Rather this section is concerned with public acts that incite third parties to hatred towards, serious contempt for, or severe ridicule of person/s on the grounds of homosexuality. Accordingly, it is not enough for Mr Burns to simply prove that he was continually harassed and/or intimidated by Mr Dye. He must prove, on balance that, each of the acts of which he complains contains all the elements of a complaint of homosexual vilification.

83 We are not persuaded that any witness to these incidents would conclude that there was any link between these acts and Mr Burns’ sexuality. In our view, any witness to these incidents would most likely conclude that they were acts of mindless vandalism.

84 In respect of either incident ( even were it proven that Mr Dye was the perpetrator), we are not persuaded that the evidence supports a finding that they separately or jointly constitute conduct capable of inciting the requisite ill will among third parties towards Mr Burns on the grounds of his homosexuality.

85 As these alleged incidents, even if proven, would not constitute unlawful homosexual vilification within the meaning of the Act, it is not necessary for us to determine the evidence in respect of Mr Dye’s alleged involvement.

86 We turn now to the defacement of Mr Burns’ front door. On the evening of October 3 Mr Dye defaced Mr Burns’ front door by drawing on it a large penis and the words “fag lives here, faggots should die.”

87 We are satisfied that this conduct constitutes a form of communication to the public. The offending signage was on display, albeit for only a short period, in the public hallway outside Mr Burns’ unit.

88 Taking into account all relevant circumstances surrounding the graffiti incident we are satisfied that it might be inferred that Mr Dye possessed an intention to incite. We are also satisfied that the offending communication was capable of inciting third parties. Read as a whole the meaning of the graffiti “fag lives here, faggots should die” was clear: Mr Burns was a homosexual; he lived in the unit where the graffiti appeared; the anonymous author advocated that fags should die. This message was materially different to that conveyed in the drunken and undirected rantings of Mr Dye on the evening of 2 September and subsequent occasions. The graffiti did not merely convey Mr Dye’s feelings of hatred towards, or contempt for, Mr Burns but was implicitly addressed to any passers-by as well as to Mr Burns. Moreover, it was addressed in both specific and general terms. It stated generally that homosexual males “should die”, which implies that killing them or violence toward them is a worthwhile endeavour or object, and it targeted one individual – the person whose residence lay behind the door. This proclamation was addressed at large to any member of the passing public. It was an urging of or an encouragement to anyone with the inclination to take heed of the message being conveyed. We find that this communication was capable of stirring up, spurring on, or urging hatred of, or at the very least severe contempt for, Mr Burns.

89 It is self-evident that Mr Burns’ homosexuality was a significant factor or operative ground of the incitement.

90 Accordingly we find this incident does constitute homosexual vilification unlawful pursuant to s 49ZT(1).

Allegation 3 – Backyard Incident
91 In the absence of any supporting evidence we are not comfortably satisfied that Mr Burns has discharged his evidentiary burden in respect of these allegations. This allegation is therefore dismissed.

Allegations 4 -Faeces incidents
92 The allegations concerning the deposit of human waste and other material on the doorstep of Mr Burns’ unit relate to the period 30 September 1999 to June 25 2001. The only specific evidence of any communication, message or like being displayed together with the offending deposits relates to an alleged incident said to have occurred in late June 2001. As this relates to a date after the initiating complaint, the Tribunal has no jurisdiction to consider that incident.

93 We are left therefore with that part of the complainant’s evidence which, if accepted, would establish that offending deposits were left on his doorstep by Mr Dye at various times but with no accompanying message or signage. We are not satisfied that this act (assuming it can be characterised as a public act) could be said to be conduct capable of inciting the requisite degree of ill-will in the hypothetical ordinary reasonable person. In the absence of any accompanying communication explaining to any by- staider, obliquely or otherwise, why the offending deposits appeared on Mr Burns’ door step we are not comfortably satisfied, that the necessary causal link between the offending act and any reaction it might inspire and Mr Burns’ sexuality has been established.

94 Therefore we find that these incidents do not constitute homosexual vilification within the meaning of the Act and this part of the complaint is dismissed.

Relief
95 Section 113 (1) of the Act provides that after holding an inquiry the Tribunal may:

(a) dismiss the complaint the subject of that inquiry, or
(b) find the complaint substantiated and do any one or more of the following:
(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
(iiib) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
(iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or
(v) decline to take any further action in the matter.
(2) …
(3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
(4) If 2 or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated, the Tribunal must not make an order or orders for damages under this section that would cause the respondent to pay more than $40,000 in the aggregate in respect of that public act.
96 Mr Burns seeks an order for damages; an order enjoining Mr Dye from continuing or repeating any conduct unlawful under the Act; a published apology by Mr Dye; an order that Mr Dye undertake a program or policy aimed at eliminating unlawful discrimination.

Damages
97 Mr Burns seeks an order for damages for non-economic loss for an unspecified sum. The damages claimed are for pain and suffering said to have been caused by the conduct of Mr Dye. Mr Burns relies on his own evidence and written reports of psychologist, Michael Guy dated 27 March and 8 July 1999 and 27 November 2000.

98 Ms Sullivan submits Mr Burns has not substantiated his claim for general damages. First, contends Ms Sullivan, the medical evidence said to support Mr Burns’ claim is at best inconclusive. While she concedes that Mr Guy’s most recent report dated 27 November 2000 suggests that his patient’s pre- existing depression may have been aggravated by Mr Dye’s conduct, Mr Guy’s 1999 reports make clear that Mr Burns was suffering from depression and anxiety prior to any meeting with the respondent. Second, the medical evidence indicates, argues Ms Sullivan, that Mr Burns may have been overly sensitive to matters pertaining to his sexuality. And finally, Ms Sullivan submits that the Tribunal should take into account Mr Dye’s incapacity to pay. He is a long-term recipient of a disability pension with no funds to meet any monetary order made against him.

99 It falls to Mr Burns to prove on balance that he has suffered injury as a direct, natural or probable consequence of Mr Dye’s unlawful conduct. Mr Burns must also prove the extent of injury in order that damages may be assessed. However where loss has been proven, but it is impossible to quantify that loss with mathematical accuracy, the Tribunal is required to assess damages doing the best it can which may include elements of guess work or speculation: Callaghan v. Wm C. Lynch Pty Ltd (1961) 79W.N. (NSW) 830 at 834. As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of general damages in a case of unlawful discrimination while difficult should not be ignored: “…damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.”

100 We found not all of the conduct complained of constitutes unlawful homosexual vilification. Any award therefore must be limited to injury, if any, arising out of that conduct found to constitute unlawful conduct pursuant to s 49ZT(1) of the Act. Mr Burns’ case is that all of Mr Dye’s conduct caused him distress, not just the graffiti incident. The evidence supports this contention. The difficult task before us then is to identify whether any part of Mr Burns’ mental injury or ill health is attributable to the graffiti incident, and if so what proportion of that injury is so attributable.

101 Our task is further complicated by the fact that the medical evidence makes clear that prior to Mr Dye’s misconduct, Mr Burns suffered from depression. Mr Dye’s liability is limited to the extent that his unlawful acts aggravated that condition. Mr Burns’ own evidence is that as a result of Mr Dye’s abuse and harassment his anxiety, stress levels and migraines increased. In cross-examination he stated that prior to various encounters with Mr Dye he had been “travelling well” and was no longer on medication for depression.

102 Mr Guy’s second report authored less than two months prior to Mr Burns first meeting with Mr Dye paints a less rosy picture. While that report indicates there had been some improvement in Mr Burns’ condition, it notes that as at July 1999 he was still taking anti-depressant medication and continued to meet the diagnosis of post-traumatic stress disorder.

103 We reject Ms Sullivan’s submission that damages should not be awarded as there is some suggestion in Mr Guy’s reports that Mr Burns may have been overly sensitive to attacks relating to his sexuality. It is a well-established principle in tort law that the defendant, in this case the vilifier, takes their victim as she or he finds them.

104 Taking into account all relevant factors we are of the view that while the circumstances of this case justify an award for general damages, a sum at the low end of the scale is appropriate. In reaching this assessment we note that Mr Burns’ pain and suffering was caused only in part by the graffiti incident; that he had a pre- existing condition of depression and that the graffiti on Mr Burns’ evidence was removed almost immediately. Ms Sullivan’s submission relating to Mr Dye’s inability to pay is irrelevant to our determination.

105 Accordingly we propose to award the complainant general damages in the sum of $1000.

Apology

106 Section 113(1)(b) (iiia) grants the Tribunal the power to order a respondent to publish an apology. It is conceded for Mr Dye that an apology is an appropriate remedy in this case. No submissions were received in respect of the contents of the apology. Accordingly we propose that an apology as set out in Annexure A be issued by Mr Dye to Mr Burns. The address for service of that written apology to be that of Mr Dye’s legal representatives. It is open to Mr Burns to arrange for the publication of this apology.

An order enjoining Mr Dye from continuing or repeating any conduct unlawful under the Act

107 No submissions were made on the form such order should take.

108 Mr Burns’ evidence is that Mr Dye is currently subject to a five-year Apprehended Violence Order issued by the Local Court. While the Tribunal has the power to make such an order, in our view there would be little utility in doing so given that the Local Court order is in place.

Develop and implement a program or policy aimed at eliminating unlawful discrimination,

109 While we acknowledge that we have the power to order a respondent to develop and implement a relevant education program, we do not consider the circumstances of this case warrant such order. It would appear that this power is primarily directed at organisations where the organisation through its employees and agents have committed unlawful conduct breaching the vilification provisions of the Act. In our view it would be of little utility to order Mr Dye to design and implement such a program. Accordingly we decline to make such order.

MINORITY DECISION OF TONY SILVA
110 I have followed the paragraph numbers and the format of the majority decision, so that the differences in the majority and the minority decisions are clear. Within the dissenting parts of my decision, where necessary I have also taken words, phrases or sentences used by the majority.

111 I agree with Paragraphs 1-64 of the majority decision.

112 However I disagree with paragraph 65-67 of the majority and replace with paragraphs 65, 65A, 66, 66A, and 67 given below.

113 [65] Could the same be said, however, for the ordinary reasonable person, to use the language of the Casey test, “not immune from susceptibility to incitement, nor holding racially prejudiced views”? The evidence shows, on the late evenings of 1 September 99 (or 31 August 99) & 2 September 99, Mr. Dye hurled abuse at Mr. Burns. Mr Dye’s abuse would have made it abundantly clear to the hypothetical observer that he hated or held feelings of serious contempt and /or severe ridicule for Mr. Burns. I am comfortably satisfied that this abuse would have incited feelings of severe ridicule in third parties, including those not immune from susceptibility to incitement or prejudice. I explain below the reasoning behind my conclusion.

114 [65A] In paragraph 27 above, the Tribunal describes the evidence of what happened on 1 September 1999 (or 31 August 1999) as follows:

On the following night, according to Mr Burns, Mr Dye knocked at his door and said, “you’re a fucking faggot aren’t you” and later started to kick the door, shouting, “cock sucker” “faggot cunt” and other offensive names. This continued throughout the evening.
115 [66] In paragraph 29 above, the Tribunal describes the evidence of what happened on 2 September 1999:
According to Mr Collins in the early hours of 2 September, he met with Mr Dye who appeared to be intoxicated and said, “Have you met Mark Holmes from the Department of Housing? He is a fucking faggot…Have you met your neighbour. He’s a poofter shit pumping cunt too.” Later that evening he heard Mr Dye scream from the corridor: “Faggot Burns come out and talk to me.” Mr Collins said this verbal abuse continued and Mr Burns then came to his unit saying, “I am terrified”. According to Mr Collins the abuse continued throughout the evening.
116 [66A] On paragraph 52 the Tribunal accepted the above evidence dealing with 1 September 1999 though nothing has been said about what happened on 2 September 1999. I believe that the version of events on both the 1 September 1999 and 2 September 1999 as stated above are true. I believe use of the words “cocksucker”, “faggot cunt”, “you’re a fucking faggot aren’t you”, “Faggot Burns come out and talk to me.” Etc, especially the first two are of such extreme ridiculing nature that an ordinary reasonable person not immune from susceptibility to incitement nor holding prejudicial view about homosexuals would be incited to serious ridicule. I believe this incitement to serious ridicule could take place independent of whatever unpleasant feeling or even ridicule, they may have for Mr. Dye, the abuser. I believe people react to what they see and hear, straightaway and though they may have second thoughts about their feelings later. Being late evening/late night it adds to the incitement to serious ridicule.

117 [67] I believe that we could also look this issue from another perspective. Let us look at this ordinary reasonable person. This person is from contemporary society and not from a utopian society. That is, the society at the relevant time, August 99 – March 2001. This person is part of the society and as such his attitude would be that of an average person. In my opinion, in matters related to homosexuality, the society in general has been struggling to come to terms with it. This is seen by the anti-homosexual attitude often taken by religious and other institutions, which are very powerful in influencing the attitude of the society in general. In my opinion not only in the relevant period but even now an uncomfortable and un-accepting feeling in the society about homosexuality exists and thus in my opinion an ordinary reasonable person, while not necessarily holding prejudicial view, could be more susceptible to incitement against homosexuals.

118 I agree paragraph 68 & 69 of the majority.

119 However, I disagree on paragraph 70 and replace it with the following.

[70] Mr. Burns claimed that he heard the smashing of glass, opened his front door and saw Mr. Dye running down the corridor. I believe Mr. Burns have been a credible witness throughout the hearing and on this matter also his credit was not impinged. In respect of the graffiti incident Mr. Salvanda gave credible evidence that Mr. Dye was responsible. Though there is no direct evidence that Mr. Dye tampered with the lock, accepting that he smashed the beer bottle just a short while before, on the balance of probabilities I accept that he glued the lock as well.
120 I agree paragraphs 71, 72, 73 and 74 of the majority.

121 However, I disagree on paragraph 75 and replace it with the following:

[75] There was evidence from Mr. Burn, that Mr. Dye was at the Woolloomooloo units for at least part of the weekend. Mr. Burns claims to have seen Mr. Dye outside his front door in the early hours of Monday morning.
122 I agree on paragraphs 76, 77, 78, 79, 80, 81 and 82 of the majority.

123 However, I disagree on paragraph 83.

124 [83] I believe that witnesses who live in those nearby units would know that these acts were related to Mr. Burns’s sexuality as there were many ongoing incidents of abuse including verbal abuse.

125 I agree with the majority on paragraph 84 and 85. However these two incidents should be considered as part of the ongoing series of incidents and looked at together as I have dealt with later. Looked at in that way it may form part of the series of acts causing incitement to severe ridicule.

126 I agree on paragraphs 86, 87, 88,89 and 90 of the majority.

127 However, I disagree on paragraph 91

Allegation 3 – Backyard Incident
128 [91] Mr. Burns have been a credible witness and I am comfortably satisfied that these incidents took place. Mr. Burns’s credit was not impinged in this matter. These incidents show how far Mr. Dye has gone to abuse Mr. Dye. This gives credence to Mr. Burns allegation that Mr. Dye was obsessed with Mr. Burns’s homosexuality. These incidents could have been heard by the occupants of the nearby units. While on its own it may not be sufficient to incite serious contempt or severe ridicule in the ordinary person, this must seen as forming part of the series or acts done by Mr. Dye that culminated in Mr. Dye’s writing that “faggots should die” etc. on the door.

Allegation 4 – Faeces incidents
129 I agree on paragraph 92 of the majority.

130 However I disagree on paragraphs 93 and 94.

131 [93] We are left therefore with that part of the complainant’s evidence which, if accepted, would establish that offending deposits were left on his doorstep by Mr Dye at various times but with no accompanying message or signage. I believe that an inference could be drawn in that the message is that this is the kind of treatment that should be given to people like Mr. Burns who are homosexuals. I am satisfied that this act could be characterised as a public act and capable of inciting the requisite degree of ill-will in the hypothetical ordinary reasonable person. Because of the locality of Mr. Burns’s unit there are two types of people who may have been exposed to the abuse that Mr. Dye carried out on Mr. Burns. Those who live in the nearby units, close enough to able to hear the verbal abuse and notice the visible signs of abuse such as faeces and urine besides Mr. Burn’s door, and those who visited the units during the period that abuse took place, on an occasional basis. Whereas those visitors may or may not have been exposed to the sever ridicule, there was a very strong possibility that those living in the adjoining flats have been exposed to the ridicule over a significant period of time and because of the continuing nature more susceptible to being incited. Therefore even though there is absence of any accompanying communication explaining to any bystander, obliquely or otherwise, as to why the offending deposits appeared on Mr Burns’ door step I am comfortably satisfied, that the necessary causal link between the offending act and any reaction it might inspire and Mr Burns’ sexuality has been established.

132 [94] Therefore I find that these incidents constitute homosexual vilification within the meaning of the Act.

RELIEF
133 I agree on paragraphs 95, 96, 97, 98, and 99 of the majority.

134 However, I disagree with paragraph 100 of the majority and replace it with the following:

[100] I have found that most of the conduct themselves constitute vilification looked at in isolation. However I believe that it would be more appropriate if the events that were alleged to, are not divided into each separate incidents as if they are unconnected. I have also found that the whole abuse constituted a continuous series of act that constituted vilification at various stages of the abuse. Therefore the distress and hurt and ridicule felt by Mr. Burns from all the events should be taken together and compensation granted. Even if only the writing on the door is found to constitute vilification it must be considered that it is the result of the ongoing abuse and the ongoing incitement culminating in the vilification. Therefore compensation granted not only for the single act but the series of act that culminated in the single act of vilification.
135 I agree on paragraphs 101,102 and 103 of the majority.

136 However I disagree on paragraphs 104 and 105.

137 [104] Taking into account all relevant factors I am of the view that the circumstances of this case justify an award for general damages at the top end of the scale. In reaching this assessment I have taken note of the fact that Mr Burns had a pre- existing condition of depression.

138 [105] Accordingly I propose that an award to the complainant general damages in the sum of $15,000 would be more appropriate.

139 I agree on paragraphs 106, 107,108 and 109 of the majority.

140 Being in the minority I think it appropriate that I only suggest a potential order. I therefore suggest that:

(a) The respondent pay the complainant within twenty-eight days of the date of these orders the sum of $15,000; and
(b) The respondent send a letter of apology in the terms as set out in Annexure A within 28 days of the date of these orders.
141 I agree with the apology prepared by the majority.

ORDERS
142 We order that:

1. The respondent pay the complainant within twenty-eight days of the date of these orders the sum of $1000.

2. The respondent send a letter of apology in the terms as set out in Annexure A within 28 days of the date of these orders.

ANNEXURE A

The respondent is directed to forward a signed letter of apology, in the terms set out below, to the complainant at the address set out below by ordinary post within 28 days of the date of these orders.


Mr Gary Burns

c/- John Hunter

Solicitor

PO Box 25

EARLWOOD NSW 2206


Dear Mr Burns

The Equal Opportunity Division of the Administrative Decisions Tribunal in a decision dated 12 March 2002 has found me to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which make it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or a group of persons on the ground of homosexuality

I offer my apologies for that behaviour.


Yours faithfully


John Dye