Carroll v Tokdogan

Case [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
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Details
AGLC
Carroll v Tokdogan [2015] NSWCATAD 200
Case
[2015] NSWCATAD 200
Decision Date

CaseChat Overview and Summary

The case of Carroll v Tokdogan involved a dispute between the applicant, Mr Carroll, and the respondents, Mrs Tokdogan and Mr Tokdogan. Mr Carroll lodged complaints with the New South Wales Civil and Administrative Tribunal regarding alleged homosexual vilification and victimisation by the Tokdogans. The crux of the matter was whether the Tokdogans' actions constituted a public act of vilification and whether Mr Carroll suffered detriment due to his previous complaint against them. The Tribunal was required to decide these issues under the Anti-Discrimination Act 1977 (NSW) and other relevant legislation.

The primary legal issues revolved around the definitions and applications of "public act" and "detriment" in the context of the Anti-Discrimination Act. Specifically, the Tribunal had to determine if the Tokdogans' conduct could be classified as a public act with the capacity to incite vilification, and whether Mr Carroll experienced a detriment on the grounds that he made a complaint about the Tokdogans. Additionally, the court needed to consider the meaning of "victimisation" and whether it applied in this instance.

In its decision, the Tribunal found that the complaint of homosexual vilification was dismissed as the conduct did not qualify as a public act. However, the complaint of victimisation against Mrs Tokdogan was substantiated in part. The Tribunal held that Mrs Tokdogan made a false report about Mr Carroll to Housing NSW, and one of the reasons for doing so was his prior complaint against her and her husband to the Anti-Discrimination Board. Consequently, she was ordered to provide a signed letter of apology to Mr Carroll. The complaint against Mr Tokdogan was dismissed as no evidence supported the claim of victimisation against him. Furthermore, the Tribunal revoked the previous suppression orders and replaced them with new prohibitions on the disclosure of specific information.

The final orders of the Tribunal included dismissing the complaint of homosexual vilification, substantiating part of the victimisation complaint against Mrs Tokdogan, and dismissing the victimisation complaint against Mr Tokdogan. Mrs Tokdogan was required to send an apology letter to Mr Carroll and provide a copy to the NSW Land and Housing Corporation. Additionally, the Tribunal imposed new restrictions on the disclosure of certain information, replacing the previous suppression orders. These reasons for decision were subject to a temporary suppression order to prevent their release to the public, except to the parties, for 28 days from the date of the decision.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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