Ciccone v CV Property Group

[2013] NSWADT 250

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Ciccone v CV Property Group [2013] NSWADT 250
Hearing dates:	24 September and 1 October 2013
Decision date:	06 November 2013
Jurisdiction:	Equal Opportunity Division
Before:	A Scahill, Judicial Member J McClelland, Non-Judicial Member B Field, Non-Judicial Member
Decision:	Complaint dismissed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Barry v Futter [2011] NSWADT 205 Burns v Dye [2002] NSWADT 32 Burns v Nine Network Australia Pty Ltd (GD) [2011] NSWADTAP 25 Mitry v Abbas [2013] NSWADT 214
Category:	Principal judgment
Parties:	Giorgio Ciccone (Applicant) Conrad Vassiliadis (Respondent)
File Number(s):	131038

REASONS FOR DECISION

Introduction

1. On 5 September 2012 Mr Ciccone complained to the Anti-Discrimination Board (ADB) that he had been discriminated against by Conrad Vassiliadis of CV Property Group on the grounds of homosexuality in the provision of services. Mr Ciccone had commenced a lease of a residential property in Oxford Street Darlinghurst on 6 August 2012. This lease terminated in March 2013. Mr Vassiliadis was the managing agent on behalf of the property owner. This was the only property Mr Vassiliadis was managing within the building.

1. In summary, Mr Ciccone alleged that he had made several complaints to Mr Vassiliadis about maintenance issues within the unit. The complaint to the ADB arose out of a telephone conversation which allegedly occurred on Friday, 24 August 2012 on loudspeaker on a fixed line telephone in Mr Ciccone's unit in the presence of Mr Ciccone's mother Mrs Elizabeth Tannous. Mr Ciccone alleges that when he was asking for maintenance issues to be attended to he said to Mr Vassiliadis:

"I am paying $680 a week rent - you have to respect me."

In response Mr Vassiliadis allegedly said:

"You fucking poofter, all you poofters are the same, don't you ever speak to me in that way".

Mr Ciccone alleges that his mother had previously been unaware of his homosexuality. She became angry with him and thereafter he had been subject to derision and anger from his father because of his homosexuality.

In the initial complaint to the ADB the Applicant also alleged that he did not receive appropriate services from Mr Vassiliadis and CV Property Group.

Procedure at the hearing

1. At the commencement of the hearing the Applicant clarified that his complaint was one of homosexual vilification under section 49 ZS and 49ZT of the Anti-Discrimination Act 1977 (ADA). He said he had been advised that he had a better chance of success characterising the complaint in this way. The Applicant also confirmed that he was relying on the alleged telephone conversation 24th of August 2012 that had been heard by his mother within his unit. The Respondent indicated his consent to this approach although he disputed the date of the alleged telephone conversation.

1. The Tribunal amended the complaint by consent under section 103 of the ADA to characterise it as a complaint of homosexual vilification under sections 49ZS and 49ZT of the ADA - not discrimination on the ground of homosexuality in the provision of services.

Evidence of Mr Ciccone

1. Mr Ciccone's evidence touched on a number of events in his tenancy. He said he had a number of telephone conversations with Mr Vassiliadis on 24 August 2012 and that it was in one of these that Mr Vassiliadis had made the vilifying comments. He had also complained to Mr Vassiliadis on that day that an upstairs occupant had poured a bucket of water over his head while Mr Ciccone was cleaning his windows thereby almost causing him to fall from the building.

1. In relation to the conversation in which Mr Vassiliadis had made the allegedly vilifying remarks, Mr Ciccone said that he was cleaning his unit that day with his mother's assistance. He did not recall when this particular conversation had taken place - but thought that he had initiated the call. He said that he had called Mr Vassiliadis from his fixed line telephone which was sitting on a bar dividing the kitchen and lounge rooms. Mr Ciccone said that the call was made on hands-free loudspeaker as he had an infection on his hands and he needed to avoid using them. At another point in his evidence Mr Ciccone had also said that he had used the telephone "hands free" because his hands were wet. There were inconsistencies in Mr Ciccone's evidence as to why he needed to use the hands free telephone, claiming both that his hands were wet and that he had an infection on them and needed to avoid use of his hands.

1. Mr Ciccone alleges that the conversation was very tense and that the vilifying remarks were made in a "loud whisper" which Mr Ciccone demonstrated to the Tribunal. He said he hung up after Mr Vassiliadis made the remarks and that he was very shocked by them. He said that an argument ensued with his mother as she questioned him about his sexuality. He said that his mother had informed his father of his sexuality, that on an occasion he had to stand between his parents who were arguing about his sexuality and that he had been disinherited by his father.

Applicant's submissions on "public act"

1. The Applicant submitted that the reference in sections 49ZS and 49ZT of the ADA to a "public act" should be interpreted to refer to making public something which would otherwise be private. In this respect he considered that this included the Respondent making public to his mother, and as a result his father and the rest of the family, the fact of the Applicant's homosexuality - which is a private matter. He also submitted that this had incited hatred towards, serious contempt for and severe ridicule of him by his family on the ground of his homosexuality.

Evidence of Mrs Elizabeth Tannous

1. Mrs Tannous gave evidence with the assistance of an interpreter in Arabic. She said that she had attended at her son's unit on Friday, 24 August 2012 to assist him with cleaning the unit.

She said that she heard her son having an angry conversation over the hands-free loudspeaker telephone with someone whom her son told her was Mr Vassiliadis. She did not know what time of the day this had been. She confirmed her son's account of the content of the comments made by Mr Vassiliadis. She said that both parties had been shouting. She said she was shocked, distressed and angry with her son because of his homosexuality. She said she had not previously been aware that he was homosexual. She said she was no longer angry with him. She said that Mr Ciccone's father had been very angry with his son and threatened violence towards him when he became aware of his homosexuality. Her recall of the day was strictly limited to the above matters.

Evidence of Mr Vassiliadis

1. Mr Vassiliadis denied having made the comments the subject of the vilification complaint. He gave evidence that Mr Ciccone's tenancy had been characterised by complaints about Mr Ciccone's behaviour - such as allegedly damaging common property, making loud noise and offensive interactions over the telephone with staff in his office. This culminated in a direction from Mr Vassiliadis to Mr Ciccone not to call the office but rather to communicate in writing.

1. Mr Vassiliadis referred to an electronic Office Action and Conversation Diary which he and his staff used to record interactions in relation to the properties he managed. There were 4 entries dated 24 August 2012 relating to "abusive" calls from Mr Ciccone and 2 concerning complaints about Mr Ciccone's behaviour from other building occupants.

1. The Respondent told the Tribunal that he had an unblemished record of 20 years in property services. The Tribunal understood this to mean that he had not been found guilty of any similar matter in providing property services.

Relevant law

1. Sections 49 ZS and 49ZT of the ADA set out the prohibition against homosexual vilification.

49ZS Definition

In this Division:

"public act" includes:

(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.

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.

(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 on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act2005 or otherwise) 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.

Onus of Proof

1. The onus is on Mr Ciccone to prove, to the requisite standard, that the respondent made the comments alleged.

That standard is as set out by the Tribunal's Appeal Panel in Burns v Nine Network Australia Pty Ltd (GD) [2011] NSWADTAP 25 at paragraph 16 - "on the balance of probabilities." This matter also dealt with a complaint of homosexual vilification.

Findings on Evidence

1. It was common ground between the parties that there had been a number of "difficult" telephone interchanges between the parties on 24 August 2012. Both Mr Ciccone and his mother Mrs Tannous were adamant that a telephone conversation on 24 August 2012 had occurred in which Mr Vassiliadis had made vilifying remarks about "poofters". Mr Ciccone said that Mr Vassiliadis had spoken in a "loud whisper" while Mrs Tannous had said that Mr Vassiliadis had been shouting. Mrs Tannous did not repeat the words she had heard. She also said that she did not know the word for "poofter" in Arabic. There were inconsistencies in Mr Ciccone's evidence as to why he needed to use the hands free telephone. He claimed both that his hands were wet and that he had an infection on them and needed to avoid use of his hands. Both Mr Ciccone's and Mrs Tannous's recall about other aspects of the day - for example when it had occurred and what else had occurred - was very limited.

1. Their accounts of the impact of the knowledge of Mr Ciccone's homosexuality on the family was also different. Mr Ciccone said that he had been present when his mother had told his father and that he had to stand between them because of fear of violence whereas Mrs Tannous said that she had told her husband of her son's homosexuality over the telephone while her husband was overseas.

Findings of Fact

1. The Tribunal was presented with contrasting cases. The Applicant and his mother asserted that they had heard the vilifying words over the telephone loudspeaker. The Respondent was adamant that he had not used the allegedly vilifying words. The Respondent also claimed an unblemished record in property management which was not challenged by the Applicant.

1. The Tribunal was concerned by a number of features of the Applicant's assertions. Neither the Applicant nor Mrs Tannous could recall the time of day the telephone conversation occurred. The Applicant's account of the tone in which the words were spoken - "a loud whisper" - differed from Mrs Tannous's account "angry shouting". Mrs Tannous confirmed that she did not know the word for "poofter" in Arabic but was reliant on an interpreter in Arabic to give her evidence. The alleged conversation occurred over the telephone - not face to face. Mrs Tannous said that her son that her son had told her the speaker was the Respondent.

1. The Tribunal was faced with some troubling difficulties in the evidence before it. These included the Respondent's denials that he had spoken the words; the inconsistent accounts of the Applicant and Mrs Tannous as to the way in which the words were spoken; the lack of detail from the Applicant and Mrs Tannous about the context in which the words were spoken; the inability of the Applicant and Mrs Tannous to identify the time of day at which the conversation occurred and the fact that there was no possibility of physical identification of the Respondent as being the speaker of the words. In these circumstances, the Tribunal could not on the balance of probabilities rely on the testimony of Mr Ciccone or Mrs Tannous on these issues. Given the inconsistencies in the evidence, the Tribunal is not satisfied on the balance of probabilities that the conversation in which Mr Vassiliadis allegedly made the vilifying remarks occurred as alleged by the Applicant.

1. That finding makes it unnecessary to consider whether or not the alleged comment breaches the ADA. However, should the Tribunal be in error on its findings as to the Applicant's and Mrs Tannous's credibility the Tribunal has considered the issue of whether the alleged comments constitute a "public act".

Submissions on the law

1. The Applicant submitted that the reference in sections 49ZS and 49ZT of the ADA to a "public act" should be interpreted to refer to making public something which would otherwise be private. In this respect he considered that this included the Respondent making public to his mother, and, as a result his father and the rest of the family, the fact of the Applicant's homosexuality - which is a private matter. He also submitted that this had incited hatred towards, serious contempt for and severe ridicule of him by his family on the ground of his homosexuality.

1. The Respondent submitted that even if the conversation had taken place, it was not a public act in that it would have occurred entirely within Mr Ciccone's unit in what he would have understood to be a private telephone conversation. The Respondent also submitted that the alleged comments had not incited hatred towards, serious contempt for, or severe ridicule of, Mr Ciccone on the basis of the evidence of Mrs Tannous that her initial anger had been replaced with respect for her son and that his father had subsequently visited Mr Ciccone in hospital.

Findings on the Law

1. As noted in its findings on the facts, the Tribunal is not satisfied on the balance of probabilities that the alleged conversation took place, as described. However even if the conversation did take place, the Tribunal is not satisfied that the alleged circumstances of the conversation constitute a "public act" within the meaning of section 49ZS of the ADA. That definition includes "any form of communication to the public, including speaking."

1. On the basis of vilification case law considering the meaning of "public act", the Tribunal does not accept the Applicant's submissions that "public act" means to make something otherwise private - public, effectively outing him in relation to his homosexuality.

1. The meaning of a "public act" was considered by the Tribunal in a complaint of transgender vilification in the matter of Barry v Futter [2011] NSWADT 205 at [72]-[78] and more recently by Deputy President Chesterman in a racial vilification complaint of Mitry v. Abbas [2013] NSWADT214 at [39]-[43].

1. Mitry v Abbas dealt with a loud allegedly racially vilifying conversation in the foyer of a building, which could have been heard by people using the stairwell as well as employees within the nearby premises.

1. By contrast, Barry v Futter dealt with a conversation between 2 workplace participants which allegedly vilified a third party workplace participant on transgender grounds. In the matter of Barry v. Futter the Tribunal considered the Second Reading Speech accompanying the introduction of the transgender vilification legislation. It concluded that there was a common parliamentary intent in the introduction of all the prohibitions against vilification in NSW - racial, homosexual and transgender. That intention was "to reduce the incidence of violence and abuse, whether physical or verbal, against certain persons or groups." the Tribunal considered the meaning of "public act" in relation to transgender vilification.

72. ... This consideration also supports construing " public act " in s 38S, in the light of s 38R, as applying to spoken communications to the public but not to private conversations or discussions even if they occur in a public place.

73. Accordingly, the Tribunal concludes that "public act" in s 38S, having regard to the provisions of s 38R, does not include a private conversation even if that conversation takes place in a public place. Whether a spoken communication amounts to a private conversation or a communication to the public will depend upon all the circumstances in which the communication occurs.

74. Whilst it is not possible to identify in advance all the types of circumstances that may be relevant in determining whether a communication by speaking is public or private, there are a number of factors that may indicate that the communication is to the public rather than a private communication and that might be relevant in the present case. First, where a speaker addresses an audience irrespective of whether there is any pre-existing relationship between the members of the audience and the speaker, the communication is more likely to be to the public. In that case, it is often appropriate to conclude that the speaker is addressing them in their capacities as members of the public and not because of their relationship. By way of contrast, speaking only to a family member, friend or acquaintance, fellow employee or co-participant in a joint activity, in that capacity, may be more likely to involve a private communication rather than a "public act ".

75. Secondly, the size of the audience may also indicate whether the communication is public or private. A speaker addressing a group of people is more likely to be communicating to the public than a speaker who is having a one on one conversation with another person. Nonetheless, a person who speaks to a series of people individually and seeks to communicate essentially the same message may be seen as speaking to a wider audience and not just engaging in private conversations.

76. Thirdly, the nature of the communication, the intentions of the parties to the communication and the circumstances giving rise to it may also give some indication of whether the communication is properly characterised as a public communication or a private conversation.

77. ...........

78. In these circumstances, the Tribunal concludes that what occurred was a private conversation between Ms Futter and Mr Bianco. There is nothing to indicate that Ms Futter was intending to express her views to the public at large, as opposed to talking to a fellow worker about a co-worker. Apart from the fact that the conversation occurred in a public place, there were no other factors that would point to what Ms Futter said being a communication to the public. Accordingly, the Tribunal finds that Ms Futter's conduct did not amount to a "public act" within the meaning of s 38S, having regard to s 38R, of the ADA.

1. In Mitry v. Abbas, Deputy President Chesterman did not consider the lack of intention of the speaker to be heard by third parties as relevant. Nor did he consider the limited size of the group of people who may have heard the remarks to preclude the act being a "public act".

1. In this matter Mr Ciccone's evidence is that the alleged remarks

• were made as part of what Mr Vassiliadis would have thought to be a "private" telephone conversation;

• were in a "loud whisper",
• were made well within the bounds of the unit on the 11th floor, not near party walls; and
• were not asserted by the Applicant to have been audible by others within the block.

1. In this matter the Tribunal considers that the circumstances of the alleged telephone conversation are closer to those alleged in the matter of Barry v Futter. The alleged conversation did not occur in a public place. It was a private conversation. The Tribunal considers that even if the words were spoken as alleged they would not have constituted a "public act".

Decision

1. The complaint is dismissed.

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Decision last updated: 06 November 2013