Demo v Scenic Rim Regional Council

[2014] FCCA 1623

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEMO v SCENIC RIM REGIONAL COUNCIL [2014] FCCA 1623

Catchwords:
HUMAN RIGHTS – Applicant claimed breaches of the Racial Discrimination Act 1975 – where alleged that officer of the respondent called the applicant a “dumb wog” – where applicant alleged that the use of the words “in this country” were in the circumstances in which they were used, racially discriminatory – where applicants evidence as to first statement not accepted – where the words “in this country” were in the circumstances in which they were used, not racially discriminatory – application dismissed.

Legislation:  

Australian Human Rights Commission Act1986 (Cth)
Racial Discrimination Act1975
Environmental Protection Act1994
Federal Circuit Court Rules 2001

Applicant: JOSEPH DANIEL DEMO

Respondent: SCENIC RIM REGIONAL COUNCIL

File Number: BRG 1033 of 2013

Judgment of: Judge Jarrett

Hearing date: 15 July 2014

Date of Last Submission: 15 July 2014

Delivered at: Brisbane

Delivered on: 15 July 2014

REPRESENTATION

The applicant appearing on his own behalf

Counsel for the Respondent: Mr Murdoch

Solicitors for the Respondent: Corrs Chambers Westgarth

ORDERS

1. The proceedings commenced by application on 11 November 2013 be dismissed.

2. The applicant pay the respondent Scenic Rim Regional Council’s costs of an incidental to the proceedings fixed in the sum of $11,086.50.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 1033 of 2013

JOSEPH DANIEL DEMO

Applicant

And

SCENIC RIM REGIONAL COUNCIL

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application commenced on 11 November, 2013 ostensibly under the provisions of the Australian Human Rights Commission Act1986 seeking relief in respect of racial discrimination.  The final orders sought by the applicant, Joseph Demo, are set out in the application as follows:

   (1)The individuals working in the Scenic Rim Regional Council found acting in the discriminatory manner towards me are dealt with in accordance with the law.

   (2)The report of the independent investigator appointed by the Federal Court to ensure a full geographical survey has been completed on my property and neighbouring properties (as per interim order 2 was sought) is sealed by the court and copies given to me in order for me to know exactly where I stand with factual information pertaining to my property and those that neighbour my property to avoid any further unnecessary harassment and intimidation in any future dealings with the Scenic Rim Regional Council. 

   (3)An apology in writing for the comments and dealings made by Mr Mark Lohmann towards me, in particular while working in his capacity as an employee of the Scenic Rim Regional Council. 

   (4)A compensation: 

   (a)for reimbursement for the legal costs in the recent prosecution matter, AUD$8000; 

   (b)on the findings of the court in this matter and the defamation that has occurred against me by the entity (Scenic Rim Regional Council) and its employees named in this application, I seek a compensation amount of what the Magistrates Court seems fair as we have been unable to find previous case such as this to refer to previous findings.

   (5)Costs to be the respondent in this matter.

2. It would be readily apparent that much of the relief sought by the applicant in these proceedings this court has no jurisdiction nor power to grant. It might be that the court has power to make findings about persons acting “in the discriminatory manner towards me”, but that would be a finding within the overall context of the proceedings. 

3. As for the appointment of an independent investigator to ensure a full geographical survey has been completed of the applicant’s property and neighbouring properties, this court has no jurisdiction to make such an order.  I was taken to no statutory authority which would enable this Court to make such an order.  It does not seem to be contested by the respondent that the Court has jurisdiction and power to order an apology, if it is otherwise satisfied that it should make such an order.  I am aware that it has been ordered in other cases.  The Court has power to order compensation. 

4. An issue arises, however, about whether the legal costs incurred by the applicant, in some proceedings which took place in the Beaudesert Magistrates Court involving the respondent, can now form the subject of an order in this court.  I doubt that they can. 

5. The application to this court was accompanied by the complaint that was made to the Australian Human Rights Commission and the letter of termination from the Commission to the applicant.  The complaint form filled out by the applicant was accompanied by another typed document in which the applicant set out his case in more detail. 

6. In both of those documents, the applicant sets out his case against the respondents.  I say the respondents because, as these proceedings were constituted, not only is the entity known as Scenic Rim Regional Council a respondent, but there were nine other respondents, all variously council employees or officials.  No separate case is now sought to be made out against those people because there were orders made on 16 December, 2013 dismissing the proceedings against all of them.  The present respondent is the only remaining respondent in the proceedings.

7. The applicant was required to put his case into a statement of claim, and he did so.  At the time he filed his statement of claim on 31 January, 2014 he was represented by lawyers.  In his statement of claim, he alleges, and I take it to be correct, that he is an Australian citizen of Slavic ethnicity born in the former Yugoslavia on 25 February, 1948.  He has lived with his wife, Erica, in a property situated at 209-221 Palomino Road, Tamborine, within the local government area of the respondent, Scenic Rim Regional Council, since 1993.  In the 2011 floods, the applicant’s property suffered damage and, in particular, a dam wall situated on his property was washed away and his driveway was damaged. 

8. Accordingly, he made preparations for the repair of that damage and in November, 2012 he arranged for some soil to be delivered to his property.  The evidence this morning reveals that the soil so delivered comprised some 20 truckloads, a not insubstantial amount of soil.  The statement of claim pleads that shortly after the soil was delivered to the applicant’s property and on 22 November, 2012 Mr Mark Lohmann, a compliance management officer with the respondent attended at the applicant’s property.  There is no dispute that this happened. 

9. The applicant and Mr Lohmann discussed at length, so the statement of claim alleges, the proposed repairs to be completed to the property.  Having regard to the evidence that I have heard this morning that allegation is correct.  The respondent relied upon evidence from Mr Lohmann and he was cross-examined by Mr Demo.  The statement of claim alleges that Mr Lohmann asserted that the applicant’s property contained a waterway and a gully.  The applicant disagreed with Mr Lohmann, relying upon his 19 years residence of the property.  The applicant also disagreed with Mr Lohmann as he failed to provide proof, upon request by the applicant, of any such waterway or gully.  That allegation in the statement of claim seems to also be proved by the evidence. 

10. There is no controversy between the parties that when Mr Lohmann attended the property on 22 November, he did indeed discuss with Mr Demo the placement of the soil upon the property.  There seems to be no dispute that Mr Lohmann pointed out to Mr Demo that the soil was placed either on or near a waterway or a gully that passed through the property and that the soil could not remain there.  There was a dispute between the gentlemen about whether in fact there was a gully on the property, and it seems clear enough, and I am satisfied, that Mr Demo pointed to his long occupation of the property as somehow qualifying him to give the opinion that there was in fact no gully or waterway on the property. 

11. Mr Lohmann, on the other hand, armed with what it is that he understood the position to be, having regard to the contour maps and other records held by the council, was of the view that there was in fact a gully or waterway on the property. 

12. I am not about to decide whether there is a gully or a waterway on the property. It is unnecessary for me to do so. However, during the course of the conversation on 22 November, 2012, Mr Demo alleges that Mr Lohmann called Mr Demo a “dumb wog”. That is the allegation in paragraph 8 of the statement of claim and the first matter that Mr Demo alleges is a breach of the Racial Discrimination Act1975. 

13. Mr Demo’s evidence about the conversation in which Mr Lohmann was alleged to have said that to him was confused and confusing.  Mr Lohmann’s evidence was not much better.  Neither gentleman gave evidence of the words that were actually spoken by them, but rather they gave their interpretations of those conversations.  That was not overly helpful. 

14. There are inconsistencies in Mr Demos’ evidence about Mr Lohmann calling him a “dumb wog”.  Mr Demo has sworn four affidavits in this proceeding.  There is reference to him being called a “dumb wog” in some of his affidavits but not in others. 

15. Mr Demo’s first affidavit, sworn 12 November, 2013 makes general reference to his neighbours making comments to the effect that the immediate community thinks of him as a "wog", and the Respondent referring to him as "the dumb wog" who will comply, without anything meaningful to support allegations against him.  That affidavit makes no direct allegation that Mr Lohmann called Mr Demo a "dumb wog".

16. That affidavit annexes an affidavit sworn by Mr Demo on 24 October, 2013 and used by him in proceedings in the Queensland Magistrates Court.  That annexed affidavit makes various allegations about Mr Lohmann, but does not allege that Mr Lohmann called Mr Demo a "dumb wog".

17. One of the two affidavits sworn by Mr Demo on 2 May, 2014 in this proceeding contains a broad allegation that Mr Lohmann called the Applicant a "dumb wog":

    53. I have photos of my property on the property and photos of surrounding properties however the Scenic Rim Regional Council has been relentless and persistent to not listen to me simply because Mr Lohman had his own agenda against me, calling me a "Dumb Wog". Refer Annexure "E" through to Annexure "N".

    106. I believe the CRO has neglected to address the real issues in the Scenic Rim Regional Council and has neglected to listen to my concerns of being treated differently to others in my immediate community, being harassed, being bullied and called a "Dumb Wog" and spoken to as if I am unaware of what is "in this country" as Mr Lohman said.

18. Neither of the remaining two affidavits sworn by Mr Demo on 2 May, 2014 and 15 May, 2014 contains any evidence to support the "dumb wog" allegation.  However, there is a reference to it in his application to the Human Rights Commission. 

19. The allegation is expressly denied by Mr Lohmann.  Mr Demo’s evidence, when he asked about the conversation this morning, was of a very general nature.  His responses about the conversation were of a very general nature and his responses revealed the very high level of feeling that he has about this matter.  For example, he described Mr Lohmann’s approach to him immediately upon them meeting on 22 November in the following terms: “He started to abuse me and was asking me about why the soil was dumped there”. 

20. The characterisation of, and that Mr Demo was quick to characterise statements with which he did not agree as “abuse” detracts from the strength of his evidence.  There was on the evidence of the conversations before me, both the written and oral evidence, no abuse at all by Mr Lohmann of Mr Demo.  There certainly was a conversation between the gentlemen and, according to Mr Lohmann, Mr Demo was agitated and aggravated.  I accept Mr Lohmann’s evidence, however, that he was relatively calm. 

21. I accept that the conversation that took place on 22 November, perhaps at times was heated.  The heat was generated by the differences between the two gentlemen about whether there was a waterway or a gully on the property.  I have no doubt that Mr Demo saw Mr Lohmann’s presence on the property as an intrusion on his residence and an intrusion upon his right to repair the damage that had been caused to his property in the way in which he saw fit, but there is nothing in the evidence that satisfies me on the balance of probabilities that Mr Lohmann’s approach was either inappropriate or unnecessary. 

22. I am not satisfied on the balance of probabilities that Mr Lohmann called Mr Demo a “dumb wog”. I am not satisfied that conversation occurred as Mr Demo suggests it did. There was nothing in the evidence from Mr Lohmann that suggested to me that he had any particular mindset against Mr Demo by reason of Mr Demo’s race, nationality or ethnicity and, as I have said, I am not satisfied on the balance of probabilities that the conversation as alleged by Mr Demo in its various forms took place whereby Mr Lohmann called Mr Demo a “dumb wog”. The allegation in paragraph 8 of the statement of claim is not proved.

23. Mr Demo alleges in his statement of claim that on 3 December, 2012 Mr Lohmann and a person called Jared Kranz visited Mr Demo’s property.  There is no dispute that they did.  He alleges that during that visit, Mr Lohmann further stated to him – I will quote paragraph 11 of the statement of claim:

    During this visit and in the presence of Mr Kranz, Mark Lohmann further stated to the applicant in a patronizing manner, that, “In this country.” 

24. The statement of claim alleges that the statement made Mr Demo feel vilified, humiliated and hurt “because the words implied that the applicant was a person of an ethnic origin who was born elsewhere rather than in Australia”.  The allegation in the statement of claim says nothing about the manner in which Mr Lohmann delivered the words about which Mr Demo now complains.  It is said, however, in Mr Demo’s evidence, that the words were delivered in a way in which Mr Demo thought Mr Lohmann was poking fun at his ethnicity.  He was laughing when he said them. 

25. I reject those assertions.  I am satisfied that Mr Lohmann said the offending words, “In this country,” but when viewed in context it was clearly nothing more than a reference to the geographical location in which the proposed remedial works to be undertaken by Mr Demo were to be done.  The conversation centred around Mr Demo wishing to place some road base to repair, or perhaps build, a road.  Mr Lohmann said, according to the evidence before me:

    Okay, it’s when you’re doing earthworks.  What we’re looking at is that, particularly in this country, you don’t get a vegetation cover real quick.

26. That statement is, as the respondent suggests, nothing more than a reference to the local area.  It was not, I am satisfied, a reference to the applicant’s racial background or his ethnicity.  It is a turn of phrase.  I am not satisfied that it was intended, by Mr Lohmann, to connote anything other than that in that particular locality, and given the particular local conditions, vegetation cover over the proposed area of work would not be quickly established.

27. The allegation in paragraph 12 of the statement of claim, to the extent that it asserts a breach of the Racial Discrimination Act, is not proved.

28. In all of those circumstances, the critical aspects upon which the applicant’s claim is based fail and his claim must also fail.  He does not prove, on the balance of probabilities, that the first offensive statement to the effect that he was a “dumb wog” was made by Mr Lohmann.  He does not prove on the balance of probabilities that when Mr Lohmann made the reference to “in this country” he was doing so by reference to Mr Demo’s race or ethnicity.  His application must be dismissed.

29. In the event that I am wrong about that it is necessary to, nonetheless, assess the compensation and determine the other orders that the Court might make if the case against the respondent was proved. 

30. I would not be inclined to order an apology. 

31. In terms of the legal costs associated with the Beaudesert Magistrates Court’s proceedings, in my view they are not moneys which can be properly claimed by way of compensation in these proceedings. 

32. In his affidavit filed on 14 November, 2013 by Mr Demo seeks to draw a connection between the proceedings in the Beaudesert Magistrates Court and the racial discrimination which he claims he has suffered at the hands of the Council.  Put shortly, he claims that he has been treated differently to his neighbours.  That may be so, but there is no evidence before me to suggest that his neighbours had attracted the attention of the council by placing on their land soil in such a position as Mr Demo had. 

33. The proceedings in the Beaudesert Magistrates Court were proceedings, as I apprehend the evidence, in relation to breaches of the Environmental Protection Act1994 (Qld) alleged by the respondent against Mr Demo. Ultimately those proceedings were not pressed by the respondent and it presented no evidence in support of the charges against Mr Demo. There were three charges, it seems. And in respect of each one the prosecution offered no evidence. It was at that point, that the applicant in these proceedings was entitled to ask for an order for costs in his favour from the Magistrates Court in Beaudesert.

34. Although the prosecution in the Beaudesert Magistrates Court and these proceedings perhaps arise out of the same event - the placing of the soil on the land - they are, it seems to me, not sufficiently connected so as to warrant an order for compensation in these proceedings under the relevant Act by way of legal costs in the other proceedings. 

35. It is appropriate, if I am wrong about the conclusion I have come to that Mr Demo was not the subject of discrimination by either being called a “dumb wog” or by being offended by the reference to “in this country” in the conversation that took place in 2012, to assess compensation in respect of that. 

36. In respect of that issue I assess compensation for general damages, hurt, humiliation and the like, at the sum of $4000.  But that sum is, of course, not payable, given the findings that I have made in respect of liability. 

37. The proceedings commenced by application on 11 November, 2013 will, for those reasons, be dismissed. 

RECORDED: NOT TRANSCRIBED

1. The jurisdiction that this Court exercises under the Australian Human Rights Commission Act is a cost jurisdiction. Costs ought to follow the event, generally speaking, unless there are special circumstances which indicate that that should not occur. There are no special circumstances in this case which indicate that the usual rule should not apply. The respondent has been entirely successful. The applicant has been unsuccessful.

2. The respondent, by its Counsel, handed up a schedule of costs claimed by the respondent according to schedule 1 to the Federal Circuit Court Rules 2001. I will mark that document exhibit 1 on this costs application. I am satisfied that the items that have been claimed in the document, are appropriate having regard to schedule 1 of the Federal Circuit Court Rules 2001.  There will be an order for costs in the sum claimed by the respondent in that document.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 July, 2014.

Associate: 

Date:  24 July 2014