Comensoli v Passas

Case [2019] NSWCATAD 155

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Comensoli v Passas [2019] NSWCATAD 155
Hearing dates: 24 September 2018
Date of orders: 05 August 2019
Decision date: 05 August 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
J Newman, Member
Decision:

(1)   The complaint of unlawful homosexual vilification is substantiated.
(2)   The Respondent is to pay to the Applicant the sum of $2,500 as compensation for the harm caused to him within 4 weeks of the publication of this decision.
(3)   The Respondent is to publish an apology for her conduct in the Inner West Courier Newspaper within 4 weeks of the publication of this decision.
(4)   Liberty to apply in relation to the terms of the apology and its publication within 7 days.

Catchwords: HUMAN RIGHTS – Discrimination – Homosexual vilification
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Alexander v Home Office [1998] 1 WLR 968 at 975
Burns v Dye [2002] NSWADT 32
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Smith [2019] NSWCATAD 56
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2018] NSWCATAD 10
Burns v Sunol (No 2) [2018] NSWCATAD 120
Carter v Brown [2010] NSWADT 109
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Margan v Manias [2015] NSWCA 388
Margan v Taufaao [2017] NSWCATAD 216
R v D & E Marinkovic [1996] EOC 92-841
Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers [2001] NSWADT 32
Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128
Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Category:Principal judgment
Parties: Daniel Comensoli (Applicant)
Julie Helen Passas (Respondent)
Representation:

D Comensoli (Applicant in person)

  Otto Stichter & Associates (Respondent)
File Number(s): 2018/176758
Publication restriction: Nil

Reasons for decision

  1. On 15 November 2017, the results of the Australian Marriage Law Postal Survey were published, to the effect that over 61% of those surveyed voted “Yes” to the question “Should the law be changed to allow same-sex couples to marry?" (the Yes vote). In celebration of the Yes vote, Daniel Comensoli (the Applicant) placed a large rainbow flag outside his apartment residence in Ashfield, NSW.

  2. This decision concerns a complaint by the Applicant that on 15 November 2017 the respondent, Julie Helen Passas, engaged in conduct amounting to unlawful vilification on the grounds of homosexuality.

  3. On 27 March 2018, the Applicant complained to the Anti-Discrimination Board (ADB) about the respondent’s conduct, alleging that it amounted to unlawful homosexual vilification under ss 49ZS and 49ZT of the Anti-Discrimination Act 1977 (the AD Act). On 26 April 2018, the Applicant lodged a further complaint to the ADB about the Respondent’s conduct, alleging that it amounted to unlawful victimisation under s 50 of the AD Act.

  4. Following correspondence with the Applicant and Respondent,…

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AGLC
Comensoli v Passas [2019] NSWCATAD 155
Case
[2019] NSWCATAD 155
Decision Date

CaseChat Overview and Summary

The case of Comensoli v Passas involved the Applicant, Mr. Comensoli, lodging a complaint with the Anti-Discrimination Board of New South Wales against the Respondent, Mrs. Passas, for an act of alleged homosexual vilification. The dispute centred around comments made by Mrs. Passas to Mr. Comensoli and his partner, Mr. Doecke, in the context of a social gathering. The matter was heard in the Anti-Discrimination Tribunal, which had to determine whether the conduct in question constituted unlawful vilification under the Anti-Discrimination Act 1977 (NSW).

The central legal issue before the Tribunal was whether Mrs. Passas' conduct amounted to "vilification" as defined by the Act, and whether it was targeted at Mr. Comensoli because of his sexual orientation. The Tribunal considered whether the comments made were of a kind likely to offend, insult, humiliate or intimidate Mr. Comensoli on the grounds of his sexual orientation, and whether such conduct was reasonable in the circumstances. The Tribunal also examined the context in which the comments were made, the nature and content of the remarks, and the relationship between the parties.

The Tribunal found that the Respondent's conduct did indeed constitute unlawful vilification of the Applicant on the grounds of his sexual orientation. The Tribunal concluded that the comments made were indeed of a kind likely to offend, insult, humiliate or intimidate Mr. Comensoli. The Tribunal considered the remarks to be an attack on Mr. Comensoli's sexual orientation and found them to be unreasonable in the circumstances. As a result, the Tribunal substantiated the complaint and ordered the Respondent to pay compensation and publish an apology. The Tribunal also granted liberty to apply in relation to the terms of the apology and its publication within seven days of the decision.

Orders

Orders of the court

(1) The complaint of unlawful homosexual vilification is substantiated.

(2) The Respondent is to pay to the Applicant the sum of $2,500 as compensation for the harm caused to him within 4 weeks of the publication of this decision.

(3) The Respondent is to publish an apology for her conduct in the Inner West Courier Newspaper within 4 weeks of the publication of this decision.

(4) Liberty to apply in relation to the terms of the apology and its publication within 7 days.

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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