Cohen v Harguos; Karelicki v Harguos (No 2)

[2006] NSWADT 275

CITATION:	Cohen & anor v Harguos; Karelicki v Harguos (No 2) [2006] NSWADT 275
DIVISION:	Equal Opportunity Division
PARTIES:	FIRST APPLICANT Anna Cohen SECOND APPLICANT Martin Cohen THIRD APPLICANT Alicia Karelicki RESPONDENT Martin Harguos
FILE NUMBER:	051136 & 051138
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	08/12/2006
DATE OF DECISION:	09/22/2006
BEFORE:	Britton A - Judicial Member; Weule B - Non Judicial Member; Gill M - Non Judicial Member
CATCHWORDS:	Racial - Vilification
MATTER FOR DECISION:	Relief and costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
CASES CITED:	Cohen v Harguos; Karelicki v Harguos [2006] NSWADT 209 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
REPRESENTATION:	APPLICANTS In person RESPONDENT No appearance
ORDERS:	1. That the Respondent pay each Applicant the sum of $1500 within 21 days of the date of these orders; 2. That within 28 days of the date of these orders the Respondent shall cause an apology to be published in the either the Sydney Morning Herald or the Daily Telegraph and the Spanish Herald or the Estra Informativo, in the terms set out in paragraph 11 of these reasons; 3. If the Respondent does not comply with Order 2 within 28 days of the date of these orders he will be required to pay each Applicant the sum of $ 2000 in addition to the sum payable under Order 1; 4. The application for costs made by the First and Second Applicants is refused

1 In Cohen v Harguos; Karelicki v Harguos [2006] NSWADT 209 we found that in September 2004 Martin Harguos said in a loud voice in front of a group of people: “When Jews get involved everything turns to shit, because Jews are shits!” We found that that comment constituted unlawful racial vilification.

2 The sole issue that remains to be determined is what orders, if any, should be made as a consequence of this finding. The parties were invited to make further written submissions on this issue. Submissions were received from Mr and Mrs Cohen but no other party.

Orders sought by the Cohens

3 Mr and Mrs Cohen asked that the Tribunal to make the following orders:

That Mr Harguos desist from repeating his offending behaviour.

That Mr Harguos be required to provide a written apology to seven people whom the Cohens claim were either witness to, or directly affected by, the offending comment.

That Mr Harguos be required to place a notice in the Sydney Morning Herald, Daily Telegraph, and Sydney’s two Spanish language newsletters, the Spanish Herald and the Noticias y Desportes, admitting that he made the offending comment, apologising to those people who heard the comment and to those at whom it was directed, and, urging others not to do the same.

That Mr Harguos be required to attend an education program, say at the Jewish Museum, to obtain a better understanding of Jewish people and their history and culture.

That he pay compensation to the applicants in compensation for their “pain and suffering”.

4 Section 108(2) of the Anti-Discrimination Act 1977 (AD Act) gives the Tribunal broad powers to make a range of orders. The types of orders available to the Tribunal where a complaint of vilification has been substantiated include that the respondent pay the complainant compensatory damages not exceeding $40,000; perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; publish an apology or a retraction (or both) in respect of the matter the subject of the complaint; develop and implement a program or policy aimed at eliminating unlawful discrimination; decline to take any further action in the matter. If, as in this case, two or more vilification complaints are made in respect of the same public act of the respondent, the maximum amount that may be awarded against the respondent for damages is $40,000: s 108(6)

5 In our view it is appropriate, having regard to the circumstances of this case, to order Mr Harguos to pay damages and issue an apology. We are not persuaded that it is appropriate to require him to attend an education program of the type proposed by the Cohens. Given Mr Harguos’ failure to participate in any part of these proceedings there is real doubt that he would attend such program or, if he did, participate in any meaningful way. In these circumstances an order of this sort would have little utility.

6 It seems to us that the applicants’ primary motivation in bringing this complaint has been to bring Mr Harguos to account for his offensive conduct and to put on the record that conduct of this nature is not only unacceptable but unlawful in NSW in 2006. Nevertheless, we think it appropriate that an order for damages be made.

7 In Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at 245-246, Spigelman CJ questioned the widely held view that an action under the AD Act was akin to an action in tort, and therefore the common law rules which govern the award of damages in actions in tort were applicable. That view was cited with approval by the Appeal Panel in Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [33]. While the Chief Justice and the Appeal Panel were discussing the now repealed s 113 of the AD Act, the current provision governing the Tribunal’s remedial powers, s 108, is not materially different, at least in respect to the Tribunal’s power, to order a respondent to pay compensatory damages. (See the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004). Accordingly in determining the appropriate sum to be awarded, the common law principles governing an award in tort can be used as are guide. However, as the Appeal Panel cautioned in Mooney, they are not “controlling”.

8 All three applicants gave evidence of being deeply distressed and offended on hearing, or hearing about, the offending remarks and Mr Harguos’ refusal to withdraw them. Mrs Cohen required medical assistance. Mrs Kreleiki was so upset that she was forced to go home from the social even that she was attending and felt deeply upset for months.

9 In determining the appropriate sum to be awarded we think it relevant that at no time despite attempts by the applicants to resolve the issue did Mr Hargous issue any form of an apology or show any sign of contrition.

10 For these reasons we think an award of $1,500 in respect of each applicant to be appropriate.

11 We also believe it appropriate that Mr Harguos issue a public apology. We direct that within 28 days of the date of these orders that he cause an apology to be published in the Sydney Morning Herald or the Daily Telegraph, and the Spanish Herald or the Estra Informativo. The apology is to be in these terms:

On 11 September 2004 in a public place I made offensive and derogatory remarks about Jewish people. I did not apologise despite being asked to do so. The NSW Administrative Decisions Tribunal has decided that those comments constitute racial vilification and a breach of the NSW Anti-Discrimination Act. I unreservedly apologise for my comments and any offence they caused.

Martin Harguos

12 In the event that Mr Harguous does not comply with this order he will be required under s 108(7) of the AD Act to pay each applicant the sum of $2000.

Costs

13 Mr and Mrs Cohen also seek an order for costs for costs incurred after the matter was referred to the Tribunal from the President of the Anti-Discrimination Board but before the commencement of the hearing. Section 110 of the AD Act provides that each party is to pay his or her own costs except if the Tribunal is of the opinion that in a particular case there are circumstances that justify it doing so. We are not persuaded that the circumstances of this case warrant a departure from the presumption that each party will be responsible for their own costs.

Orders

1. That the Respondent pay each Applicant the sum of $1500 within 21 days of the date of these orders.

2. That within 28 days of the date of these orders the Respondent shall cause an apology to be published in the either the Sydney Morning Herald or the Daily Telegraph and the Spanish Herald or the Estra Informativo, in the terms set out in paragraph 11 of these reasons.

3. If the Respondent does not comply with Order 2 within 28 days of the date of these orders he will be required to pay each Applicant the sum of $ 2000 in addition to the sum payable under Order 1.

4. The application for costs made by the First and Second Applicants is refused.