Carroll v Tokdogan

[2015] NSWCATAD 200

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Carroll v Tokdogan & Anor [2015] NSWCATAD 200

Hearing dates:

24 July 2015

Decision date:

02 October 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton Principal Member
E Hayes General Member
F Given General Member

Decision:

(1) The complaint of homosexual vilification is dismissed.

 

(2) The complaint of victimisation made against Mrs Tokdogan is substantiated in part. The balance of the complaint is dismissed.

 

(3) The complaint of victimisation made against Mr Tokdogan is dismissed.

 

(4) Within 28 days of the date of this decision, Mrs Tokdogan must give to Mr Carroll and provide a copy to the NSW Land and Housing Corporation, a signed letter of apology in the following terms:

 

Dear Mr Carroll

 

The Administrative & Equal Opportunity division of the New South Wales Civil and Administrative Tribunal has decided that I contravened s 50 of the Anti-Discrimination Act 1977 (NSW) which makes it unlawful for a person to victimise another [2015] NSWCATAD 200.

 

The Tribunal found that I made a false report about you to Housing NSW and one of the reasons I did so was because you had made a complaint about my husband and me to the Anti-Discrimination Board.

 

I offer my apologies for my conduct.

 

I have sent a copy of this letter to NSW Housing.

 

Yours faithfully
Mrs Tokdogan

 

(5) The orders made on 24 July 2015 under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) are revoked. In substitution, we order that the disclosure of the name of the person referred to at [31] of these Reasons is prohibited.

(6) Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) these reasons for decision must not be released, published or otherwise made available other than to the parties before 28 days of the date of this decision.

Catchwords:

EQUAL OPPORTUNITY — homosexual vilification — whether act a “public act” — whether conduct had the capacity to incite

 

EQUAL OPPORTUNITY — victimisation — meaning of a detriment — whether applicant subjected to a detriment “on the ground” he did one of the things in s 50(1) of the Anti-Discrimination Act 1977 (NSW)

  PRACTICE AND PROCEDURE — principle of open justice — vacating suppression orders

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013
Crimes Act 1900 (NSW) Summary Offences Act 1988 (NSW)
Evidence Act 1995 (NSW)
Residential Tenancies Act 2010 (NSW)

Cases Cited:

Carroll v Department of Family and Community Services [2015] NSWCATAD 82
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Sunol v Collier and anor. (No 2) [2012] NSWCA 44 Jones v Trad [2013] NSWCA 389
Trad v Jones (No 7) [2014] NSWCATAD 225

Category:

Principal judgment

Parties:

Stephen Carroll (Applicant)
Arif Tokdogan (First Respondent)
Sarah Tokdogan (Second Respondent)

Representation:

Solicitor:
L Rogers (Applicant)

File Number(s):

1410665

Publication restriction:

See Orders 5 and 6

Reasons for decision

1. Mr Stephen Carroll lodged two complaints with the President of the Anti-Discrimination Board (respectively, “the President” and “the Board”) alleging that he has been subjected to unlawful homosexual vilification and victimisation by his neighbours, Arif and Sara Tokdogan.

2. It is unlawful for a person by a public act to incite hatred towards, serious contempt for, or serious ridicule of a person or group of persons on the ground of the homosexuality of the person or members of the group (s  49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act)) The Act also makes it unlawful for a person (the discriminator) to subject another person to a detriment on the ground that the latter alleged that the discriminator has committed an act which amounts to contravention of the Act (s 50 of the Act).

3. For the reasons given below we have decided to dismiss Mr Carroll’s complaint of homosexual vilification and victimisation and find the complaint of victimisation substantiated in part.

Confidentiality orders

4. At the request of the parties, on the day of the hearing we made orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) prohibiting the publication and disclosure of their names and those of all witnesses (the original orders). After the hearing we became aware of a decision of the Tribunal (differently constituted) relating to a complaint made by Mr Carroll under the Act against the Department of Community Services. The reasons for that decision were handed down over six months ago and canvassed much of the subject matter the subject of these proceedings (Carroll v Department of Family and Community Services [2015] NSWCATAD 82) (the first decision). No orders were made or applied for under s 64 in those proceedings.

5. On learning of the first decision we notified the parties of our preliminary view that it was no longer appropriate for the original orders to continue and invited them to make submissions. Mr Carroll urged us not to vacate the original orders. He pointed out that he had been self-represented in the earlier proceedings and claimed he was unaware that it was possible to apply for a suppression order. He argued that the appropriate course was not to revoke the original orders and, in addition, to make orders under s 64 of the NCAT Act in relation to the first decision. The Tribunal did not receive any submissions from the Tokdogans.

6. Section 64(1)(a) of the NCAT Act states that if the Tribunal is satisfied that it is desirable to do so, by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by or appearing before the Tribunal).

7. Section 64 reflects the principle of “open justice” also contained in s 49 (proceedings will be held in public) and one of the objects of the NCAT Act (to ensure that the Tribunal is accountable and has processes that are open and transparent: s 3(f)). It establishes the norm that unless orders are made under s 64 of the NCAT Act, the names of persons involved in proceedings will be contained in the Tribunal’s written reasons for decision. As a consequence, the Tribunal commonly publishes reasons for decisions that contain facts that the parties may not wish to be published and that may disadvantage them or cause them to suffer embarrassment. The practice of the Administrative and Equal Opportunity Division of NCAT, unless otherwise ordered, is to permit its decisions to be published on Australasian Legal Information Institute and NSW Caselaw, which are freely and readily accessible through the Internet.

8. Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, in our opinion, the power contained in s 64 should be exercised sparingly.

9. The written submissions made by Mr Carroll do not explain why the evidence in this case is confidential or why, for some other reason, it is “desirable” to make orders under s 64. We accept that the disclosure of the sexual preference of Mr Carroll and his partner together with the details of their dispute with their neighbours may cause each to suffer some embarrassment. In our opinion this does not provide a sufficient basis to make orders under s 64 of the NCAT Act.

10. Taken together with the fact that much of the subject matter of these proceedings is set out in the first decision, including the identity of the parties, we have concluded it is not desirable for the original orders to continue except in relation to one witness namely the friend of Mr Carroll who is first mentioned at par [31] of these Reasons. We do not know whether he has been advised of our decision to revisit our decision in relation to the original orders. He raised particular concerns about the disclosure of his sexual preference. He was advised that confidentiality orders would be made. Given that he has not had the opportunity to comment on this issue, we have decided not to vacate the order made in relation to him. In these reasons we will refer to him as “the Guest”.

11. We have decided to prohibit publication of these Reasons for 28 days (other than to the parties) to give Mr Carroll the opportunity to challenge these orders if he chooses to do so.

Complaint 1: unlawful homosexual vilification

12. In a complaint to the Board lodged on 25 November 2014, Mr Carroll described five separate acts he contended constituted unlawful vilification. In these proceedings he advised he no longer pressed one of those incidents.

13. Each of the four acts about which Mr Carroll complains is alleged to have taken place in the apartment block where he and the Tokdogans reside. Managed by the NSW Land and Housing Corporation (NSW Housing), the apartment block is a 1980s building with 24 units. Mr Carroll and the respondents reside in adjacent apartments on the second floor of one of three wings within the block. One other apartment is situated on that floor.

Incident 1: 8 December 2012

14. Mr Carroll alleges that on the evening of 8 December 2012, when returning home with his flatmate and partner, Mr Mark Benton, Mr Tokdogan rushed up to him while he was on the landing outside his apartment, and said:

You think you are the fucking king in here, eh with what you said to my wife. Lucky the wife is not home. She stopped me.

15. Mr Carroll claims that Mr Tokdogan clutched him by the throat, prodded him in the chest and said:

I’m going to fuck everyone up. Work my way through the others starting with you. You fucking poofter.

16. According to Mr Carroll Mr Tokdogan then grabbed him around the throat and said:

You be careful. I hate you Mr Carroll not you Mark. You are different, also Mark. …You understand what I am saying. Be careful.

17. Mr Carroll claims Mr Tokdogan then slapped him across the face, grabbed him by his throat and said:

If you talk anymore to my wife…

…Call the cops.

He claimed the incident ended with Mr Tokdogan saying:

You are lucky today, you fucking poofter.

18. Mr Benton testified that he was present throughout the incident and was concerned that if he stepped in he might be charged with a criminal offence. He said that he decided the best thing he could do was to make a recording of the incident.

19. A recording of the incident, claimed to have been made by Mr Benton, was played in these proceedings. While parts were inaudible, the recording was broadly consistent with the Mr Carroll’s account of the incident.

20. Mr Tokdogan said he had no recollection of the alleged incident but conceded it was his voice on the recording. He admitted confronting Mr Carroll one evening when he was drunk after learning that Mr Carroll had said to his wife, “You fucking slut”. He also admitted that he often drank heavily, and when he did, he used expressions such as “fucking poofter”. He claimed he was not bothered if people were homosexual; “it’s up to them”. He conceded he probably said the words Mr Carroll alleged he used but denied threatening to use physical violence, pointing out that his son was a police officer.

Incident 2: 17 July 2012

21. Mr Carroll alleges that on 17 July 2012 he heard Mrs Tokdogan say that someone had put nails under the tyres of her car. Later that day at about 5:30pm, he overheard a conversation between the Tokdogans and two other neighbours, one of which was Mr Barry Akkbary that took place in the stairwell between the first and second floors of the apartment block. According to Mr Carroll the following exchange took place :

Mr Tokdogan: First, we are going to find the one.

Mr Akkbary: At least one of them not just …

Get a camera I have to go. Next thing that happens, I will let you know.

Mrs Tokdogan: No. Barry. Barry.

Mrs Tokdogan (to Mr Akkbary): If we find out anything else happens we will knock on your door and tell you to bash their faces in.

22. Mr Carroll claims that he later overhead Mr Tokdogan talking about “the troublemaker in the unit block”.

23. According to Mr Carroll, at about 6:15pm Mr Benton told him that he was upset because he had heard Mrs Tokdogan use the words “poofters and faggots” during a conversation with other neighbours.

24. According to Mr Carroll, around this time Mr Benton opened the front door of their apartment and yelled out: “You keep this up and we will contact the Discrimination Board.” Mr Carroll alleges the following altercation ensued:

Mr Benton:    We do not appreciate you calling us “faggots and poofters”.

Mrs Tokdogan: That’s what you are, isn’t it?

According to Mr Carroll, Mr Tokdogan then came out of his unit and with menace said : “Why don’t you come outside and face me” and his wife urged him to go back inside.

25. Mrs Tokdogan denies ever having suspected Messrs Carroll and Benton of tampering with her car.

Incident 3: 7 March 2013

26. According to Mr Carroll, on 7 March 2013 at about 7:30pm while in the lounge room of his unit he heard Mr Tokdogan yell out, “Hey, motherfuckers” and then come to the front door of his unit and yell:

Don’t fucking leave me in the steps. I’m going to fuck you up tonight.

If you are going to meet me at the steps, you’re not a man… maybe, a poofter.

But. But. But.

We fucking see each other. We fucking see each other. We fucking see each other.

27. According to Mr Carroll, after a short period Mr Tokdogan called out for Mr Akkbary. Mr Carroll claims that it his belief that Mr Tokdogan was seeking to entice Mr Akkbary to engage and attack him and Mr Benton. It later transpired that Mr Akkbary was not home during the incident.

28. According to Mr Carroll, Mr Tokdogan then said:

I’m going to see you at the steps and fuck you up. You see. It’s your fucking lucky day tonight. Maybe tomorrow. Maybe the next day.

29. He took those words to be threats of violence. According to Mr Carroll, Mr Tokdogan then said:

You arsehole, you fucking poofter. Listen to me. You lucky Barry is not home. You very lucky.

And later:

One day I am going to see you soon. Shit.

30. Mr Benton gave oral evidence which corroborated Mr Carroll’s account. A recording of that incident, claimed to have been made by Mr Benton, was admitted into these proceedings. Of poorer quality than the recording of Incident 1, it nonetheless was broadly consistent with Mr Carroll’s account. Mr Tokdogan agreed it was his voice on the recording. He stated he was probably drunk at the time. He denied trying to encourage Mr Akkbary to attack Mr Carroll.

Incident 4: 14 August 2013

31. On 14 August 2013 a friend visited Mr Carroll and Mr Benton at their unit (the Guest). According to Mr Carroll during the visit while sitting in the longue room he heard the Tokdogans say:

Mr Tokdogan: Poofters clean up your rubbish.

Mrs Tokdogan: Poofters.

32. The Guest corroborated Mr Carroll’s account in a written statement provided to the Board and oral evidence given in these proceedings. He said he was speechless and horrified by the Tokdogans’ spiteful comments and was anxious that he might be confronted by them.

33. The Tokdogans claim to have no recollection of this incident.

Did the alleged conduct occur?

34. Mr Carroll’s partner corroborates his account of the offending conduct. The recordings of Incidents 2 and 4 are consistent with Mr Carroll’s account of those incidents. The evidence given by the Guest supports Mr Carroll’s account of Incident 4. While Mr Tokdogan denies using physical violence, he does not deny using the words attributed to him by Mr Carroll, in respect of Incidents 2 and 4.

35. We find on the balance of probabilities that the four incidents occurred in the manner as described by Mr Carroll.

Legal principles

36. Section 49ZT of the Act provides:

49ZT Homosexual vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

37. The vilification provisions of the Act have been the subject of extensive judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol) and Jones v Trad [2013] NSWCA 389 (Jones). The following principles relevant to this matter may be distilled from those authorities:

(a) an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])

(b) “incite” in s 49ZT means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41])

(c) for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41])

(d) it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])

(e) the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])

(f) in making that assessment the particular class to whom the act is directed/ the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]). There is a divergence of opinion as to whether that assessment is to be made by reference to the "ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience or group.

(see Trad v Jones (No 7) [2014] NSWCATAD 225 at [34]).

38. The words “hatred” “serious” “contempt” “serious” and “ridicule” are ordinary English words and must be given their ordinary meaning:

"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).

What Mr Carroll must prove

39. It falls to Mr Carroll to establish on the balance of probabilities that the conduct found proven:

was a public act

had the capacity to incite hatred towards serious contempt for, or severe ridicule of Mr Carroll, and /or his partner

was on the grounds of Mr Carroll and/or Mr Benton being, or being thought to be, homosexual.

Were the incidents public acts?

40. The Act defines “public act” to include any form of communication to the public, including speaking: s 49ZS.

41. All incidents occurred in the common property of the apartment building where Messrs Carroll, Benton and the Tokdogans reside. T each incident Mr Tokdogan’s voice was raised and he was often shouting. No evidence was adduced to indicate that anyone apart from those immediately involved in the incidents overheard what was said. Nonetheless, given the layout of the building and the volume of Mr Tokdogan’s voice, we think it likely that some residents and/or their guests overheard each of the incidents.

42. We find each incident constitutes a “public act” within the meaning of the Act.

Did any of the offending acts have the capacity to incite?

43. We must evaluate whether each act had the capacity to incite — to rouse, to stimulate, to urge, to spur on, to stir up or to animate — hatred towards, serious contempt for, or serious ridicule of Mr Carroll and/or Mr Benton in the notional ordinary (or ordinary reasonable) member of the relevant audience, on the grounds that he/they are homosexual.

44. In undertaking that task, we must consider the nature of the public act, the context in which it occurred, the words spoken and tone used, the identity of the alleged vilifier and his/her/their relationship (if any) with the victim and the audience. In addition, we must identify the relevant audience and consider the likely effect of each act on the notional ordinary member of that audience.

The audience

45. The relevant audience were the residents of the wing in the apartment block where Mr Carroll resides and any guests. Apart from being “social housing tenants” we have not been given any information about this group. Nor have we been given any evidence about the views held by members of the group about homosexuals in general, and Messrs Carroll and Benton in particular. Nor, is there any evidence about whether some or all members of the group were aware or suspected that Mr Carroll and Mr Benton were homosexual.

46. It is a matter of common knowledge, to which we may have regard, that social housing tenants generally suffer economic and/or other forms of social disadvantage (s 144 of the Evidence Act 1995 (NSW)). We think it likely that members of this group hold a diverse range of opinions about homosexual people ranging from ignorance to intolerance and acceptance. We also think it likely that the spectrum of those opinions would correspond with those held by the community at large.

Did Incident 1 have the capacity to incite?

47. It would have been apparent to anyone overhearing Incident 1 that Mr Tokdogan was threatening Mr Carroll with physical violence for allegedly making insulting comments about his wife. The audience is likely to have understood from the slurring of his words and the incoherence of his comments, that Mr Tokdogan was extremely intoxicated. We are unable to accept the proposition advanced for Mr Carroll that the audience is likely to have understood Mr Tokdogan to have used the expression “fucking poofter” as a targeted insult about Mr Carroll’s sexual preference rather than a term of general derision.

48. We accept that the ordinary member of the audience would probably have understood Mr Tokdogan’s comments to convey his hatred towards and contempt for Mr Carroll. However, as the authorities have consistently emphasised, to fall within s 49ZT the impugned act must not only convey the alleged villifier’s hatred towards or serious contempt for, a person or a group on the ground of their homosexuality but have the capacity to incite one of those reactions in the ordinary member of the relevant group.

49. There is no evidence to suggest that Mr Tokdogan enjoyed any particular standing or respect amongst other residents in the apartment block. The evidence suggests that this incident was not the first time he had subjected his neighbours to a drunken rant. It is likely that some residents would have reacted to the incident with feelings of annoyance towards Mr Tokdogan for disturbing their peace.

50. The words used by Mr Tokdogan did not explicitly or implicitly invite or urge others to join him in his feelings of hatred for, and contempt of Mr Carroll. Nor in our opinion could it reasonably be argued that the words used and the manner in which they were delivered had the power to persuade others to join with Mr Tokdogan. We are not satisfied that the act had the capacity to incite hatred or severe contempt for Mr Carroll and /or Mr Benton on the grounds of homosexuality.

Did Incident 2 have the capacity to incite?

51. Incident 2 involved two parts. The first part was an exchange between Mr Akkbary and Mr Tokdogan about “finding the one” and “bash[ing] their faces in”. The second part involved a loud and public exchange between Mr Benton and the Tokdogans, and ended with Mr Tokdogan challenging Mr Benton (and possibly Mr Carroll) to come out and “face him”.

52. It may be, as Messrs Carroll and Mr Benton believe that one of them was “the one” who was the subject of the exchange between Mr Akkbary and Mr Tokdogan. However we think it unlikely that the ordinary member of the audience would have understood that to be the case given, among other things that any mention was made of Mr Carroll or Mr Benton during this exchange.

53. During the second exchange, it will be recalled Mrs Tokdogan shouted “faggot and poofters” and, in answer to a comment by Mr Benton, Mrs Tokdogan responded “That’s what you are isn’t it?”. Given the parties to this exchange we think it likely that the ordinary member of the audience is likely to have understood that the Tokdogans were referring to Messrs Carroll and Benton. In addition, we think they would have been understood the Tokdogan’s comments to convey their hatred of, and contempt towards Messrs Carroll and Benton.

54. As mentioned, there is no evidence about whether any neighbours were aware of Mr Carroll’s sexuality. However, even if assumed that this act had the effect of “outing” Mr Carroll, we are not persuaded of itself, it is likely to have caused the ordinary member of the audience to experience hatred of, or severe contempt for Mr Carroll and/or his partner. Nor are we persuaded that the words used and the manner of their delivery had the capacity to incite the ordinary member of the likely audience to share in the Tokdogans’ emotions. We think it more likely that they would have regarded the incident as an unedifying slanging match between neighbours.

Did Incident 3 have the capacity to incite?

55. Mr Carroll contends, and we agree, that of the offending incidents, Incident 3 is the most serious. We also agree with the proposition that during this incident Mr Tokdogan was seeking to encourage Mr Akkbary to join forces and confront Mr Carroll and his partner.

56. The recording of this incident reveals that Mr Tokdogan was extremely drunk and barely coherent.

57. Verbal abuse directed at a homosexual person(s) or that includes words understood to be insulting of homosexuals, may be capable of inciting the requisite ill-feeling to establish a complaint of homosexual vilification. However we think it unlikely that Mr Tokdogan’s drunk and largely incoherent verbal attack on Mr Carroll and his partner, had the capacity to incite the ordinary member of the audience to experience feelings of hatred towards or serious contempt for, or severe ridicule of Mr Carroll and/or his partner.

58. We accept, as argued by Mr Carroll, that Mr Tokdogan probably was attempting to entice Mr Akkbary to join him in his threatened assault. However, how Mr Akkbary might have reacted to Mr Tokdogan’s call to arms is not determinative. This is because he was not present at the time and therefore cannot be considered to be a member of the relevant group we must have regard to when evaluating whether the impugned act had the capacity to incite.

Incident 4

59. Incident 4 conveyed the Tokdogans’ contempt for, and possibly hatred of Messrs Carroll and Benton. It soured an otherwise pleasant social visit and caused the Guest to feel uncomfortable and fearful. This is hardly surprising given that throughout the visit, his hosts were subjected to insults, based on their sexuality.

60. For broadly the same reasons discussed above, we are not persuaded that this act had the capacity to incite one of the relevant emotions.

Summary

61. We are not satisfied, on balance, that the nominated acts had the capacity to incite any of the relevant reactions. Accordingly, we must dismiss Mr Carroll’s complaint of unlawful homosexual vilification. This decision should not be taken to indicate that we condone the offending conduct or do not accept Mr Carroll’s claim that he found the experience extremely distressing. Section 49ZT of the Act does not make the making of homophobic comments unlawful, however offensive. The making of such comments will only contravene s 49ZT if they have the capacity to incite one or more of the relevant reactions.

62. It may be that Mr Tokdogan’s conduct contravened s 60 of the Crimes Act 1900 (NSW) (common assault) and s 4A of the Summary Offences Act 1988 (NSW) (offensive language). It may also be that Mr Tokdogan’s conduct constituted an interference with Mr Carroll’s right to “quiet enjoyment” of his tenancy (s 50 the Residential Tenancies Act 2010 (NSW)). This, however, does not establish that the offending conduct amounted to a contravention of s 49ZT of the Act.

Complaint of victimisation

63. Mr Carroll submits that in making a false allegation to his landlord, NSW Housing, Mrs Tokdogan victimised him in contravention of s 50 of the Act. He claims that the reason Mrs Tokdogan made that allegation was because he had made a complaint about the Tokdogans to the Anti-Discrimination Board.

64. In his complaint to the Board, Mr Carroll made an additional allegation of conduct said to constitute victimisation. In these proceedings, he conceded that there was insufficient evidence to support his belief that Mrs Tokdogan was the alleged perpetrator and withdrew that part of the complaint. In our opinion, that concession was properly made.

What Mr Carroll must prove

65. To succeed in his complaint of victimisation under s 50 of the Act, Mr Carroll must establish on the balance of probabilities that:

Mrs Tokdogan subjected him to a detriment

She did so “on the ground” that he had made a complaint alleging homosexual vilification.

Did Mrs Tokdogan knowingly make a false report to NSW Housing?

66. It is agreed that Mrs Tokdogan made a report to Mr Carroll’s landlord on 8 November 2013, complaining of an offensive smell coming from Mr Carroll’s apartment. The issue between the parties is whether Mrs Tokdogan made that allegation knowing it to be false.

67. The Tokdogans claim they noticed a strong odour coming from Mr Carroll’s apartment a few weeks after he moved in. They claim the smell was noticeable most of the time and so strong it made them feel sick when they walked by Mr Carroll’s front door.

68. On Mrs Tokdogan’s account, up until the “fucking slut” incident, she and Mr Carroll had been on good terms. She claims that up until that time, Mr Carroll had been happy to oblige and open the doors and windows of his apartment when she raised the issue of the offensive odour. She said that after that incident the issue could no longer be resolved on a cordial basis and for that reason she made a report to NSW Housing.

69. Mr Carroll does not dispute that initially he and his partner had been on friendly terms with the Tokdogans but claims the relationship soured about six months after he moved in, in mid-2011. He denies Mrs Tokdogan ever making mention of an odour coming from his apartment.

70. Messrs Carroll and Benton testified that none of the residents of the apartment block had ever mentioned an offensive smell emanating from their apartment. Tendered in these proceedings were letters from friends and members of their respective families who claimed that they had visited the apartment and found it to be clean and odour free. None were required for cross-examination.

71. Also tendered in these proceedings was a copy of a report dated 21 May 2014 prepared by Judi Hall, an officer with NSW Housing. The report was prepared following an inspection of the apartment which rated “Kitchen and Food” as “clean hygienic”; “odour” as “nil/pleasant” and “vermin” as “none”. The report recorded that a complaint had been made on 8 November 2013 about an “unpleasant odour” coming from Mr Carroll’s apartment.

Our findings

72. Even if Mrs Tokdogan is correct and the trigger for the deterioration in her relationship with Mr Carroll was the “fucking slut” incident, she and her husband tolerated what they described as a nauseating and overpowering smell for close to 12 months.

73. It is a matter of common knowledge that people react differently to different odours. What one person finds offensive, another may not. However, in our opinion it is improbable that had the Tokdogans been forced to endure what they claim to be an extremely offensive smell that they would have tolerated the situation for close to 12 months. Neither offered a plausible explanation as to why they tolerated the situation for so long. In addition their claim about the alleged odour is unsupported. On the other hand, there is considerable evidence to support Mr Carroll’s claim. On the balance of probabilities, we find that when Mrs Tokdogan made the report to NSW Housing she did not hold the honest belief that an offensive smell was emanating from Mr Carroll’s apartment.

Did the making of a false allegation subject Mr Carroll to a detriment?

74. The word “detriment” in s 50 has been interpreted to mean “loss, damage or injury” that is “real and not trivial”: see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40]. Whether something constitutes a detriment must be determined objectively and not subjectively: Sivananthan v Commissioner of Police, NSW Police Service at [41].

75. The evidence indicates that NSW Housing investigated the report made by Mrs Tokdogan and took no further action apparently because the complaint was found not to be substantiated. While Housing NSW took no action against Mr Carroll, we find that he was nonetheless subjected to damage to his reputation. While short-lived and not particularly serious, we find that damage was nonetheless real and material.

Did Mrs Tokdogan subject Mr Carroll to a detriment “on the ground” that he had made a complaint of homosexual vilification to the Board?

76. It falls to Mr Carroll to establish that at least one of the “real”, “genuine” or “true” reasons that Mrs Tokdogan made a false report to NSW Housing was because Mr Carroll had made a complaint of homosexual vilification to the Board (see Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]).

77. Mrs Tokdogan’s report to NSW Housing was made about three weeks after she was notified of Mr Carroll’s complaint to the Board. As we have noted, she did not provide a satisfactory explanation about why she failed to act for close to 12 months despite the alleged intensity of the reported odour. We think it more probable than not, that at least one of the real reasons Mrs Tokdogan made the report to NSW Housing was because Mr Carroll had made a complaint of homosexual vilification to the Board.

78. We find the complaint of victimisation in respect of the report to NSW Housing to be substantiated.

Summary

79. The complaint of homosexual vilification is dismissed.

Should any orders be made?

80. Having found the complaint of victimisation substantiated in part, we must decide whether may make orders under s 108(2) of the Act.

81. We have decided it is appropriate to order Mrs Tokdogan to provide Mr Carroll with a written apology in the terms set out below and to provide a copy of that letter to NSW Housing.

Orders

(1) The complaint of homosexual vilification is dismissed.

(2) The complaint of victimisation made against Mrs Tokdogan is substantiated in part. The balance of the complaint is dismissed.

(3) The complaint of victimisation made against Mr Tokdogan is dismissed.

(4) Within 28 days of the date of this decision, Mrs Tokdogan must give to Mr Carroll and provide a copy to the NSW Land and Housing Corporation, a signed letter of apology in the following terms:

Dear Mr Carroll

The Administrative & Equal Opportunity division of the New South Wales Civil and Administrative Tribunal has decided that I contravened s 50 of the Anti-Discrimination Act 1977 (NSW) which makes it unlawful for a person to victimise another.

The Tribunal found that I made a false report about you to Housing NSW and one of the reasons I did so was because you had made a complaint about my husband and me to the Anti-Discrimination Board.

I offer my apologies for my conduct.

I have sent a copy of this letter to NSW Housing.

Yours faithfully

Mrs Tokdogan

(5) The orders made on 24 July 2015 under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) are revoked. In substitution of those orders, we order that the disclosure of the name of the person referred to at [31] of these Reasons is prohibited.

(6) Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) these reasons must not to be released, published or otherwise made available other than to the parties before 28 days of the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

09 November 2015 - Full decision re-uploaded due to error

Decision last updated: 09 November 2015