Campbell v Kirstenfeldt
[2008] FMCA 1356
•30 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMPBELL v KIRSTENFELDT | [2008] FMCA 1356 |
| HUMAN RIGHTS – Offensive behaviour because of race or colour – acts able to be relied on substantially same as terminated HREOC complaint – whether acts otherwise than in private – whether acts likely to offend, insult, humiliate or intimidate – whether an act done because of race or colour. |
| Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.3(1), 46PH(1), 46PO(1), & (3) and 3(b), (4)(a),(b) and (d)p Racial Discrimination Act1975 (Cth), s.18C |
| Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 at 327 per Collier J; [2007] FCA 615 Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 44 ALR 607 Bropho v Western Australia [2004] FCA 1209 Browne v Dunn (1893) 6 R 67 Chambers v Darley & Ors [2002] FMCA 3 Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531 Forbes v Commonwealth [2003] FMCA 140 Gama v Qantas Airways Limited (2006) 195 FLR 475; [2006] FMCA 11 Ho v Regulator Australia Pty Ltd [2004] FMCA 62 Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 McLeod v Power (2003) 173 FLR 31; [2003] FMCA 2 McMahon v Bowman [2000] FMCA 3 Oberoi v HREOC [2001] FMCA 34 Oorloff v Lee [2004] FMCA 893 Perry v Howard [2005] FCA 1702 Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 Stokes & Ors v Royal Flying Doctor Service & Anor (2003) 176 FLR 66; [2003] FMCA 164 Travers v New South Wales [2000] FCA 1565 |
| The Macquarie Dictionary, 2nd Edition |
| Applicant: | KAYE CAMPBELL |
| Respondent: | MERVYN KIRSTENFELDT |
| File Number: | PEG 101 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 25 September 2008 |
| Date of Last Submission: | 25 September 2008 |
| Delivered at: | Perth |
| Delivered on: | 30 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr T MacFarlane |
| Solicitors for the Applicant: | Aboriginal Legal Service of Western Australia (Inc) |
| Respondent: | In person |
THE COURT DECLARES
That in the period between October 2005 and November 2007 (inclusive) the respondent engaged in conduct rendered unlawful by s.18C of the Racial Discrimination Act 1975 (Cth) by his offensive behaviour toward the applicant because of her race or colour.
ORDERS
The respondent is to provide the applicant with an apology in the terms set out in para. 5 of the Reasons for Judgment, by 4.00pm on 10 October 2008.
The respondent pay to the applicant damages by way of compensation in the sum of $7,500 by 4.00pm on 1 December 2008.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 101 of 2008
| KAYE CAMPBELL |
Applicant
And
| MERVYN KIRSTENFELDT |
Respondent
REASONS FOR JUDGMENT
Introduction
Kaye Campbell is an aboriginal Australian.
In these proceedings Mrs Campbell complains about the conduct of her former neighbour, a white Australian, Mervyn Kirstenfeldt. Mrs Campbell’s complaint is that Mr Kirstenfeldt abused her and called her names. The abuse and names included “niggers”, “coons”, “black mole”, “black bastards” and “lying black mole cunt” amongst others.
Application and grounds
This application alleges offensive behaviour based on race or colour, which is unlawful conduct under s.18C of the Racial Discrimination Act1975 (Cth).[1] The conduct complained of is that set out in a complaint to the Human Rights and Equal Opportunity Commission[2] the terms of which are set out below.[3]
[1] “RD Act”.
[2] “HREOC”.
[3] See para. 7 below (“HREOC Complaint”).
Orders sought
The orders finally sought by the applicant were contained in a minute of proposed order tendered at hearing, as follows:
“1.It is hereby declared that in the period between October 2005 to November 2007, the respondent engaged in conduct rendered unlawful by Part 11A, section 18C of the Racial Discrimination Act 1975 (Cth) by his racial vilification of the applicant and her family.
2.The respondent is hereby restrained from engaging in any conduct which is rendered unlawful by the Racial Discrimination Act 1975 (Cth).
3.The respondent is to provide an unqualified written apology to the applicant in terms of the attached document.
4.The respondent pay damages by way of compensation in the sum of $10,000 or such sum as this Honourable court orders appropriate.
5.There be no order as to costs.”
The apology referred to in proposed order 3 above was sought in the following terms:
“APOLOGY
To:Mrs Kaye Campbell
c/- Aboriginal Legal Service of WA (Inc)
PO Box 8194
Perth Business Centre
PERTH WA 6849
I, MERVYN KIRSTENFELDT, sincerely apologise for any distress or embarrassment that I have caused Mrs Kaye Campbell and her family.
I accept that on various occasions during the period October 2005 to November 2007, through my own words and actions, I racially vilified Mrs Campbell and members of her family. For that, I offer my sincerest apologies and express my deepest regret that anything I have done or said has caused Mrs Campbell, and members of her family, distress or embarrassment.”
HREOC complaint
The HREOC Complaint was made by Mrs Campbell on 17 December 2007.[4] It is necessary to have regard to the content of the HREOC Complaint, and particularly Mrs Campbell’s 5 December 2007 Statement attached to the HREOC Complaint.[5]
[4] Affidavit of Mrs Campbell sworn 21 August 2008 (“Mrs Campbell’s Affidavit”).
[5] “HREOC Statement”.
Mrs Campbell’s HREOC Statement provides as follows:
a)she was born on 29 March 1961 (and at the time of the relevant events was therefore in her mid forties);
b)in June 2005 she (together with her late husband) were transferred from their Department of Housing and Works house in Wundowie to another house in Wattle Crescent in Wundowie;
c)a few months after the housing transfer a dispute arose concerning cuttings from overhanging vines. The dispute led Mr Kirstenfeldt to call Mrs Campbell a “black mole”. There was then an oral altercation between Mr Campbell and Mr Kirstenfeldt, and Mrs Campbell says that Mr Kirstenfeldt continued to call her “derogatory names”;[6]
d)following the vine cutting incident Mrs Campbell says that “the abuse continued on about everything”[7] and included abuse outside the ambit of the RD Act, including swearing at Mrs Campbell about the activities of her cat, and throwing bricks and rocks at the cat and dogs in the Campbell’s back yard, and throwing a hammer at the cat whilst pregnant, allegedly causing the cat to miscarry.[8] Mrs Campbell says that if her family came over Mr Kirstenfeldt would make derogatory comments to the family (which included her), calling the family “‘niggers’, ‘coons’, ‘black bastards’ and telling us to ‘go back to the scrub where we belong’.”[9] Mrs Campbell also observed that these things were said to her then 11 year old son.[10] Mrs Campbell also asserted that when she walked passed Mr Kirstenfeldt’s house he stood just inside the flyscreen and glared at her and swore at her and that she was not able to go anywhere without being scared;[11]
e)on Australia Day 2007 Mrs Campbell says that she was standing outside watering and gardening while her son and some of his friends (some of whom were aboriginal and some of whom were not) were playing cricket. Mrs Campbell says that Mr Kirstenfeldt came out of his house and said to her “‘you nigger, coon black bastard, go back where you belong in the scrub’.”[12] Mrs Campbell told her husband, who was backing his car out, that Mr Kirstenfeldt was swearing at her, and Mr Campbell walked over to Mr Kirstenfeldt and there was a further oral altercation in the course of which Mr Kirstenfeldt is alleged to have said “‘I’m Australian, all you niggers go back to the scrub where you belong’.”[13] Mrs Campbell says that she was scared, had chest pains and that her heart was beating hard, and that her husband, who had angina, got sick as well. They later reported the matter to the local police;[14]
f)as a consequence of the complaint to the police about the Australia Day incident Mr Kirstenfeldt was charged with disorderly conduct and on 2 November 2007 was convicted and fined $600 in the Northam Magistrates Court. Mrs Campbell was also granted a misconduct restraining order until 10 March 2008;[15]
g)Mrs Campbell alleges that the abuse did not stop even though there was a misconduct restraining order;[16]
h)Mrs Campbell says that Mr Kirstenfeldt continues to call her names every time he saw her and that on 6 November 2007, referring to the Northam Magistrates Court matter said to her to “you lying black mole, cunt”;[17]
i)that about five or six weeks before the above incident (which would put it at about the end of October or early November 2007) she was collecting dry sticks to make a fire and that Mr Kirstenfeldt called out loudly “nigger, coon”, which caused her to be so scared that she dropped the sticks and went back inside. It is said that this was done in front of another neighbour;[18]
j)Mrs Campbell said that she wanted to get away from Mr Kirstenfeldt, and that she had been granted access to a priority transfer with the Department of Housing and Works about two and half months previously (probably mid September 2007) but was still waiting for a house to become available;[19]
k)Mrs Campbell said that she wanted Mr Kirstenfeldt to stop calling her names and wanted to be compensated for the pain and humiliation that Mr Kirstenfeldt has caused her.[20]
[6] HREOC Statement, paras. 5-7.
[7] HREOC Statement, para. 8.
[8] HREOC Statement, paras. 9-10.
[9] HREOC Statement, para. 11.
[10] HREOC Statement, para. 12.
[11] HREOC Statement, paras. 13 and 14.
[12] HREOC Statement, paras. 15-16 (the quote is from para. 16).
[13] HREOC Statement, para. 19.
[14] HREOC Statement, paras. 23-25.
[15] HREOC Statement, para. 27-28.
[16] HREOC Statement, para. 30.
[17] HREOC Statement, para. 32.
[18] HREOC Statement, para. 33.
[19] HREOC Statement, paras. 34 and 31.
[20] HREOC Statement, paras 34-35.
On 26 May 2008 HREOC terminated Mrs Campbell’s complaint under s.46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)[21] on the ground that there was no reasonable prospect of the matter being settled by conciliation.[22] The reasons for decision in relation to the termination of the complaint say as follows:
“I have carefully considered all the information provided by you as well as attempts to obtain a response from Mr Kirstenfeldt and engage him in the Commission’s process. I am satisfied that there is no reasonable prospect of the matter being settled by conciliation and have decided to terminate the complaint on that ground under s.46PH(1)(i) of the [HREOC Act].”
[21] “HREOC Act”.
[22] HREOC Notice of Termination, 26 May 2008.
It is relevant to note that the reasons for decision indicate that copies of the complaint were sent to Mr Kirstenfeldt on 10 January 2008 and 6 March 2008 and that HREOC was “unable to obtain a response from Mr Kirstenfeldt and it appears that he is unwilling to participate in the Commission’s process.”[23]
[23] HREOC Reasons for Decision, 26 May 2008.
Jurisdiction of the Court
The HREOC Act provides an exclusive regime for remedying contraventions of the RD Act.[24]
[24] Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 per Gleeson, McHugh, Gummow, Hayne and Callinan JJ; [1998] HCA 73 at paras 26 and 31-32 per Gleeson, McHugh, Gummow, Hayne and Callinan JJ; Bropho v Western Australia [2004] FCA 1209 at para. 52 per RD Nicholson J; Perry v Howard [2005] FCA 1702 at para. 37 per Siopis J.
Section 46PO(1) of the HREOC Act provides as follows:
(1) If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Only an “affected person” can make an application to this Court.[25] Thus, where a wife sought to be party to an application to this Court where the complaint to HREOC was made only by the husband, the wife’s complaint was dismissed for want of jurisdiction.[26]
[25] Oorloff v Lee [2004] FMCA 893 at para. 55 per Walters FM (“Oorloff”).
[26] Oorloff at paras. 54-56 per Walters FM. However where an organisation or corporation lodges a complaint with HREOC it is arguable that this Court may permit an application brought by that organisation or corporation to be amended so that it is brought in the names of the individual members constituting the organisation or corporation: Stokes & Ors v Royal Flying Doctor Service & Anor (2003) 176 FLR 66; [2003] FMCA 164.
In this case, although the HREOC complaint does refer to Mrs Campbell’s late husband, her young son and various family members, they appear in the factual context of the complaint, rather than as “a person aggrieved” for the purposes of s.3(1) of the HREOC Act.[27] In the Court’s view, there can be no question that examined objectively Mrs Campbell was a person aggrieved, and therefore entitled to make a complaint to HREOC, and is therefore a person on whose behalf the complaint was lodged, and is therefore an “affected person” for the purposes of s.46PO(1) of the HREOC Act.
[27] See Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 at 327 per Collier J; [2007] FCA 615 at para. 39 per Collier J.
The scope of the application made to this Court is however limited by s.46PO(3) of the HREOC Act which provides as follows:
(3) The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
By reason of s.46PO(3)(b) an applicant is permitted to allege in this Court facts different to those alleged in the terminated HREOC complaint, provided that the newly alleged facts are not different in substance from the formerly alleged facts.[28] These provisions do not limit this Court to considering the initial complaint to HREOC, but rather the complaint ultimately considered by HREOC.[29] No doubt difficulties may arise with a complaint generally expressed or lacking details.[30] Given that complaints will often not be prepared by lawyers, and ought not be construed as if they were pleadings, this kind of difficulty will be for the Court to determine as to whether the evidence arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint.[31]
RD Act provisions
[28] Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 per Katz J; [2000] FCA 1531 at para. 39 per Katz J.
[29] Travers v New South Wales [2000] FCA 1565 at para. 8 per Lehane J (“Travers”); Ho v Regulator Australia Pty Ltd [2004] FMCA 62 at para. 4 per Driver FM; Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 at para. 10 per Driver FM.
[30] Gama v Qantas Airways Limited (2006) 195 FLR 475 at 480 per Raphael FM; [2006] FMCA 11 at para. 9 per Raphael FM (“Gama”). This Court’s decision in Gama was appealed, but not this aspect of the decision: Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69.
[31] Travers at para. 8 per Lehane J; Gama FLR at 480 per Raphael FM; FMCA at para. 9 per Raphael FM.
The application alleges unlawful conduct under s.18C of the RD Act which provides as follows:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1)It is unlawful for a person to do an act, otherwise than in private, if:
(a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Human Rights and Equal Opportunity Commission Act 1986 allows people to make complaints to the Human Rights and Equal Opportunity Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2)For the purposes of subsection (1), an act is taken not to be done in private if it:
(a)causes words, sounds, images or writing to be communicated to the public; or
(b)is done in a public place; or
(c)is done in the sight or hearing of people who are in a public place.
(3)In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
The civil wrong established by s.18C of the RD Act has four elements, as follows:
a)an act performed otherwise than in private;
b)an act by a person;
c)an act reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people; and
d)an act done because of the race, colour or national or ethnic origin of the other person or group of people.
The applicant must prove each of the above four elements for the Court to be satisfied that the unlawful conduct has occurred as alleged.
Evidence
Evidence for the applicant
The evidence for the applicant was contained in three affidavits:
a)Mrs Campbell’s Affidavit sworn 21 August 2008;
b)the affidavit of Irene Nana Jackman sworn 20 August 2008;[32]
c)the affidavit of Edward George Robinson, a Senior Constable in the West Australia Police, sworn 26 August 2008;[33]
[32] “Mrs Jackman’s Affidavit”.
[33] “Senior Constable Robinson’s Affidavit”.
The above affidavits were admitted into evidence at the hearing of the application on 25 September 2008. The deponents were not required to go into the witness box. Initially, that was because the respondent was not at the hearing. When Mr Kirstenfeldt did arrive, approximately 15 minutes after the scheduled time for commencement of the hearing, an opportunity was afforded to him by the Court to cross-examine the witnesses, and the consequences of a failure to cross-examine was explained to him by the Court.[34] He elected not to cross-examine any of the applicant’s witnesses.
[34] Browne v Dunn (1893) 6 R 67; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 44 ALR 607.
The affidavit of Mrs Campbell essentially confirms, with more detail, the allegations made in the HREOC complaint. The following matters are noted:
a)she asserts that she is an aboriginal person, born in Meekatharra, and that her family is from Wiluna;[35]
[35] Mrs Campbell’s Affidavit, para 2.
b)in relation to the physical layout of the adjoining Wattle Crescent properties she says that:
i)the front yard of her house was separated from Mr Kirstenfeldt’s front yard by a fibro fence approximately 2 ½ feet high;
ii)Mr Kirstenfeldt’s driveway ran along the fence-line between his property and Mrs Campbell’s property;
iii)the front yard of the Campbell’s property faced straight out on to the footpath;
iv)from the footpath there was a small verge before the road; and
v)directly across the road from Mrs Campbell’s house was a park reserve.[36]
[36] Mrs Campbell’s Affidavit, paras. 6 and 7. Photos of the two properties and their surrounds were tendered by the applicant without objection, and were consistent with the evidence in Mrs Campbell’s Affidavit.
c)the factual content of the vine cutting incident is essentially identical;
d)the factual content of the allegations that derogatory comments were made to family members, including Mrs Campbell, by Mr Kirstenfeldt when Mrs Campbell’s family members would visit during the period from October 2005 to January 2007, is identical, with the additional qualification that Mrs Jackman witnessed a number of these instances of abuse whilst sitting on the front veranda of Mrs Campbell’s house;[37]
[37] Mrs Campbell’s Affidavit, paras. 14-15.
e)the detail of the Australia Day 2007 incident is identical;[38]
[38] Mrs Campbell’s Affidavit, paras. 18-32.
f)an incident involving Mrs Campbell’s son, and two of his friends, and then her late husband in February 2007 is set out where it is alleged that Mr Kirstenfeldt swore at the boys, and threatened to smash them over their heads with a shovel, the latter comment apparently being in relation to a statement from Mrs Campbell’s nephew to Mr Kirstenfeldt to the effect that he ought to stop racially abusing Mrs Campbell, and that he did not like racists;[39]
[39] Mrs Campbell’s Affidavit, paras. 33-35.
g)at or about this time Mrs Campbell and her late husband complained to the Department of Housing and Works concerning Mr Kirstenfeldt’s conduct;[40]
h)there was a further incident involving Mrs Campbell’s son in which it is alleged that Mr Kirstenfeldt was swearing at Mrs Campbell’s son and another young boy calling them “bastards”;[41]
i)it is alleged that Mrs Campbell’s son’s schooling was affected by Mr Kirstenfeldt’s conduct;[42]
j)in relation to the disorderly conduct charge it is additionally noted that Mr Kirstenfeldt was given a Conditional Release Order of 12 months;[43]
k)the detail of the 6 November 2007 incident is in substance the same, save that Mrs Campbell says that at the time she was near the fence bordering Mr Kirstenfeldt’s front yard and that the words “you lying black mole cunt” were used twice, and that on the first occasion they were used Mr Kirstenfeldt also laughed, and that she then went inside her house, and when she later came out of her house, Mr Kirstenfeldt continued to call her names, and laugh (together with another neighbour who was present) and that at about that time she made a statement to the police concerning this incident;[44]
l)it is alleged that on 14 and 15 November 2007 during the night rocks were thrown at the back yard fence bordering Mr Kirstenfeldt’s property, the dogs were upset, one of the dogs was hit by a rock, and at least after the first night broken bricks were found in Campbell’s back yard, whilst on the second night Mrs Campbell says that her late husband saw Mr Kirstenfeldt walk up his driveway from his backyard and go into his house through the front door at about the time of the incidents concerned;[45]
m)Mrs Campbell alleges that on 16 November 2007 she and her late husband were talking to a relative on the footpath out the front of their house and that on this occasion Mr Kirstenfeldt was standing in the doorway on his front veranda talking loudly so that they could clearly hear him say “you lying cunts, you gin-tailing bastards, you’se (sic) are all a mob of bastards.”;[46]
n)Mrs Campbell says that the stick collecting incident was at about this time (placing it mid November 2007, whereas at the time of the HREOC complaint it was placed slightly earlier), and that Mr Kirstenfeldt called loudly across the road “nigger, coon!”, and yelled it so loudly that she could hear him clearly even though she was in the park, and that this took place in front of another neighbour. As in the HREOC Complaint she says she was so scared that she dropped the bundle of sticks and went back inside the house;[47]
o)there was an incident involving Mrs Campbell’s son, a friend of his, and Mr Kirstenfeldt on 8 December 2007, but the threat apprehended by Mrs Campbell’s son was physical only;[48]
p)the Campbell’s moved to a new house in Ellenbrook in February 2008, and Mrs Campbell’s husband passed away on 28 April 2008.[49]
[40] Mrs Campbell’s Affidavit, paras. 38-40.
[41] Mrs Campbell’s Affidavit, para. 43.
[42] Mrs Campbell’s Affidavit, para. 41-42 and Annexure KC4.
[43] Mrs Campbell’s Affidavit, paras. 44-51, the reference to the Conditional Release Order was at para. 47.
[44] Mrs Campbell’s Affidavit, paras. 52-63 and Annexure KC7.
[45] Mrs Campbell’s Affidavit, paras. 64-66.
[46] Mrs Campbell’s Affidavit, para. 67.
[47] Mrs Campbell’s Affidavit, paras. 68-70.
[48] Mrs Campbell’s Affidavit, parasl. 71-72.
[49] Mrs Campbell’s Affidavit, paras. 86-87.
Mrs Jackman gives evidence:
a)that during 2007 she would stay with Mrs Campbell (who was her niece) and often used to sit on the veranda of her niece’s house having a cigarette, and on a number of these occasions, Mr Kirstenfeldt directed abuse towards Mrs Campbell and herself, including abuse in the following terms:
“black cunts”, “cunt” and “slut black mole”;[50]
b)of the Australia Day 2007 incident, in briefer but similar terms to the evidence given by Mrs Campbell, save that she says that the expression “black slut” was used by Mr Kirstenfeldt;[51] and
c)deposing to having given evidence in the proceedings in the Northam Magistrates Court in relation to Mr Kirstenfeldt’ charge of disorderly conduct.[52]
[50] Mrs Jackman’s Affidavit, paras. 2-4.
[51] Mrs Jackman’s Affidavit, paras. 5-8.
[52] Mrs Jackman’s Affidavit, paras. 9-10.
Senior Constable Robinson’s evidence confirms that Mr Kirstenfeldt was charged with disorderly conduct in relation to the Australia Day 2007 incident, and in particular in relation to an allegation that Mr Kirstenfeldt had been calling Mrs Campbell and her family “black bastards”, and that Mr Kirstenfeldt pleaded not guilty, but was convicted, given a conditional release order of 12 months and fined $600. Senior Constable Robinson also confirms that misconduct restraining orders were granted against Mr Kirstenfeldt in favour of Mrs Campbell and her late husband.[53] Senior Constable Robinson also confirms that at least on two occasions between April 2005 and January 2007 he attended the Wattle Crescent residence of Mr Kirstenfeldt in relation to complaints of racial abuse by Mrs Campbell.[54]
[53] Senior Constable Robinson’s Affidavit, paras. 4-12.
[54] Senior Constable Robinson’s Affidavit, para. 3.
Mr Kirstenfeldt did not file any affidavits in accordance with the orders made by the Court on 25 July 2008.
Mr Kirstenfeldt was however given the opportunity, given all the circumstances, to give evidence on oath. No objection was taken by the applicant who proceeded to cross-examine Mr Kirstenfeldt after he had given his evidence. Mr Kirstenfeldt’s evidence was very short, basically consisting of a denial of any of the allegations of unlawful conduct. In cross-examination Mr Kirstenfeldt admitted that he had been found guilty of disorderly conduct in the Northam Magistrates Court (as set out above), and further indicated that he was prepared to make an apology because “I just want it out of my hair.”[55]
[55] Transcript at 9. Counsel for the applicant quite properly pointed out that the issue of an apology arose in mediation and to the extent that there was any evidence about what occurred in mediation that the Court could not take that into account. In that regard however the preparedness to apologise by Mr Kirstenfeldt was not, in the Court’s view, a reference to what occurred in mediation, but an indication of what he was prepared to do now that the matter was before the Court for hearing: see Transcript at 8.
To the extent that there is a conflict between the evidence of the witnesses for Mrs Campbell, and the evidence of Mr Kirstenfeldt, the Court prefers the evidence of Mrs Campbell’s witnesses. It does so for a number of reasons:
a)Mrs Campbells’ witnesses were not cross-examined (despite the opportunity afforded to Mr Kirstenfeldt to do so) and the Court is therefore obliged to accept that evidence unless it is inherently incredible or unbelievable, which it is not;
b)there is a degree of corroboration between the evidence of Mrs Campbell, Mrs Jackman and Senior Constable Robinson as to the nature of the events, and their timing, which lends credibility to Mrs Campbell’s evidence of those events;
c)the fact of Mr Kirstenfeldt’s conviction for disorderly conduct on the basis of the Australia Day 2007 incident is contrary to his denial of that incident;
d)Mr Kirstenfeldt’s continued denial of the incidents is inconsistent with his conviction, and also his preparedness to apologise, notwithstanding that his preparedness to apologise is qualified by a desire to be rid of the matter.
HREOC Complaint – events to which the Court can have regard
The matters or events to which the Court can have regard, and as to which it is satisfied were the subject of the HREOC Complaint are the following:
a)the vine cutting incident a few months after June 2005;
b)general derogatory comments made between late 2005 and Australia Day 2007;
c)the Australia Day 2007 incident;
d)the 6 November 2007 incident;
e)the stick picking incident in or about November 2007; and
f)the footpath incident on 16 November 2007.
The elements of the civil wrong in relation to each incident
In relation to each incident there is no question that the alleged act was done by a person, Mr Kirstenfeldt.
In relation to each incident the Court is satisfied that the act was one performed otherwise than in private. This is because in relation to each of the incidents they have occurred either:
a)over a neighbourhood fence; or
b)being shouted, or at least capable of being heard, between one property and another; or
c)being capable of being heard in public being said on one property to people either on a public footpath or in a public reserve across the road from the house; or
d)given that each of the houses faces directly onto a footpath and road that the acts complained of (being words spoken) in each case would, the Court finds, have been capable of being heard in a public place, being either the footpath, or the road or the park reserve; and
e)were therefore not made in private,[56] and in any event, were not private exchanges, but exchanges heard by the complainant, and members of her family on some occasions, persons who are not members of her family on other occasions (including the neighbour who was with the respondent on at least two occasions), or generally capable of being heard in the neighbourhood.[57]
[56] See McMahon v Bowman [2000] FMCA 3 (“McMahon”); Chambers v Darley & Ors [2002] FMCA 3.
[57] See cases referred to at previous footnote; also McLeod v Power (2003) 173 FLR 31; [2003] FMCA 2.
As to whether the acts complained of (the words used) were reasonably likely to offend, insult, humiliate or intimidate and whether they were done because of the race or colour of Mrs Campbell requires an examination of each incident.
Although the vine cutting incident arose in the context of a domestic or garden dispute between neighbours the description of Mrs Campbell as a “black mole” must, at the least, be reasonably likely to offend or insult her. The act is clearly done because of her race or colour because of the use of the word “black”. Were the remark intended to be merely abusive in the context of a garden or domestic dispute the use of “black” would be unnecessary. Its use in conjunction with “mole” is, on any objective test, offensive or insulting, a mole being a colloquial expression for “moll”, the meaning of which includes the girlfriend or mistress of a thief, or a prostitute.[58]
[58] The Macquarie Dictionary, 2nd Edition, page 1145.
In relation to the general derogatory comments made between late 2005 and Australia Day 2007 the use of the words “niggers”, “coons”, “black bastards”, and an invitation to “go back to the scrub” because that was where Mrs Campbell belonged cannot be seen as anything other than words related to Mrs Campbell’s race or colour. The word “nigger” is a derogatory term for an aborigine.[59] It is also used as a derogatory term for a member of any dark skinned race.[60] “Coon” is a derogatory reference to a member of a dark skinned race (more often though an American negro).[61] Calling someone a “black bastard” is clearly just a general term of derogatory abuse, but nevertheless one which because of the use of the word “black” has, as its thrust, the race or colour of the person to whom it is directed. Again, viewed objectively, the use of those terms over a period of time, is reasonably likely to offend or insult a person, and in particular, a person in Mrs Campbell’s circumstances, which, on the evidence, appears to be those of an aboriginal woman trying to lead an ordinary family life with her husband, children and extended family.
[59] The Macquarie Dictionary, 2nd Edition, page 1203.
[60] The Macquarie Dictionary, 2nd Edition, page 1203.
[61] The Macquarie Dictionary, 2nd Edition, page 393.
The Australia Day 2007 incident is based on the use of the same terms (nigger, coon, black bastard) and a similar invitation from Mr Kirstenfeldt to Mrs Campbell to “go back where you belong in the scrub”, and the same conclusions follow as in the previous paragraph.
The 6 November 2007 incident in which Mr Kirstenfeldt called Mrs Campbell “you lying black mole, cunt” requires no further exposition from this Court. Again, it is clearly based on race or colour, and objectively, reasonably likely to offend or insult.
The stick collecting incident with the use of the terms “nigger, coon” called out to Mrs Campbell whilst she was in a public reserve across from her home are again reasonably likely to offend or insult, and again acts done because of the race or colour of Mrs Campbell.
The footpath incident of 16 November 2007 where Mr Kirstenfeldt, from his front veranda, clearly said to Mrs Campbell (amongst others) “you lying cunts, you gin-tailing bastards, you’se (sic) are all a mob of bastards” is again a comment made because of Mrs Campbell’s race or colour, a “gin” being an often offensive term for an aboriginal woman.[62] In this context, the other terms of abuse combined with the reference to “gin-tailing” are terms which are reasonably likely to “offend” or “insult”.
[62] The Macquarie Dictionary, 2nd Edition, page 738.
Insofar as any of the comments referred to above and found to be offensive or insulting were said to Mrs Campbell in front of family or friends the Court also considers that they were comments reasonably likely to cause Mrs Campbell to feel humiliated.
In all the circumstances, the Court is satisfied that in relation to each of the incidents above all of the elements of the civil wrong established by s.18C of the RD Act
Remedies
The Court has concluded that Mr Kirstenfeldt engaged in various offensive behaviour between 2005 and November 2007 and in those circumstances the applicant is entitled to a declaration,[63] which will be in the following terms:
THE COURT DECLARES that in the period between October 2005 and November 2007 (inclusive) the respondent engaged in conduct rendered unlawful by s.18C of the Racial Discrimination Act 1975 (Cth) by his offensive behaviour toward the applicant because of her race or colour.
[63] HREOC Act, s.46PO(4)(a).
In relation to that conduct the applicant has sought a written apology. The Court has power to order an apology be made.[64] Mr Kirstenfeldt gave evidence that he was prepared to give an apology to Mrs Campbell. In those circumstances, an apology in the terms sought by Mrs Campbell, which is set out above, is considered by the Court to be appropriate.
[64] HREOC Act, s.46PO(4)(b); Forbes v Commonwealth [2003] FMCA 140; Oberoi v HREOC [2001] FMCA 34.
Mrs Campbell also claims damages by way of compensation in the sum of $10,000 or such sum as the Court considers appropriate.[65]
[65] HREOC Act, s.46PO(4)(d).
In the HREOC Complaint Mrs Campbell says that she wants to be compensated for the pain and humiliation that Mr Kirstenfeldt has caused her. In circumstances where much of the offence and insult heard occurred in front of Mrs Campbell’s husband, son, other family members and family friends, the Court is prepared to infer that the unlawful conduct which it has found occurred gave rise to general feelings of hurt and humiliation on the part of Mrs Campbell. The evidence does not allow the Court to make any findings in relation to anything more than that, there being no evidence led from any health professional as to any further effects of the unlawful conduct.
The Court considers that an appropriate measure of damages ought to be awarded to Mrs Campbell for the hurt and humiliation that she has generally suffered. In the circumstances, it is necessary to look at each incident to determine a total sum. However, the Court notes that in McMahon offensive behaviour of a not dissimilar kind, in not dissimilar circumstances, resulted in an amount of compensation of $1500 (there in that case being the one incident to be compensated).
In this case, the Court assesses the sum to be awarded by way of compensation as follows:
a)$500 for the vine cutting incident. It seems to the Court that that incident might be characterised as one which although it constituted offensive behaviour contrary to s.18C of the RD Act was behaviour which was at least in part also caused by the garden or domestic dispute over the vine cutting.
b)$1500 for the generally derogatory comments between late 2005 and Australia Day 2007. In the absence of more specific incidences of the complained of conduct the Court will treat this as one general incident.
c)No compensation in relation to the Australia Day 2007 incident on the basis that the complaint that led to Mr Kirstenfeldt’s conviction and fine were instigated by Mrs Campbell, and must have afforded a level of “compensation” by reason of the outcome.
d)$1000 for the stick collecting incident, which clearly caused offence and insult and caused Mrs Campbell to return indoors, but was not an incident which appears to have occurred in front of others.
e)$2000 for the 6 November 2007 incident, which although like the stick collecting incident, does not appear to have occurred in front of other people, occurred soon after the Northam Magistrates Court convicted and fined Mr Kirstenfeldt, and in those circumstances the Court is prepared to infer that greater hurt and humiliation might have been caused to Mrs Campbell in circumstances where she might expect that the conviction and fine would lead to the conduct coming to an end.
f)$2500 for the 16 November 2007 incident, the sum being increased for the same reasons as outlined in relation to the 6 November 2007 incident and further taking into account that the acts complained of there occurred in front of other family members.
There will therefore be an order that the respondent pay to the applicant damages by way of compensation in the sum of $7,500.
The Court will not order that Mr Kirstenfeldt be restrained from engaging in any unlawful conduct under the RD Act in future. In the Court’s view he is unlikely to do so as Mrs Campbell has moved away, and he wishes to be rid of the matter. In those circumstances, the Court considers such an order unnecessary.
Costs
No order was sought as to costs as Mrs Campbell’s Counsel and solicitors were acting on a pro bono basis.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Sandra Gough
Date: 30 September 2008
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