Donovan v Tobin

[2015] QCAT 332

CITATION: Donovan v Tobin [2015] QCAT 332

PARTIES:	Siteri Gaunavou Donovan (Applicant)
v
Scott Anthony Tobin (Respondent)

APPLICATION NUMBER: ADL051-14

MATTER TYPE: Anti-discrimination matters

HEARING DATE: 21 August 2015

HEARD AT: Townsville

DECISION OF: Member Carey

DELIVERED ON: 1 September 2015

DELIVERED AT: Townsville

ORDERS MADE:

1.    The Respondent is ordered not to make any remark that may constitute racial vilification relating to the Applicant.

2.    No order as to costs.

CATCHWORDS:

Anti-discrimination

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Self

RESPONDENT: Self

REASONS FOR DECISION

1. The Anti-Discrimination Act 1991 (Qld) “the Act” prohibits racial vilification and states that it is unlawful for a person, via public act, to incite hatred towards, serious contempt for or severe ridicule of a person on the ground of the person’s race.

2. The standard of proof required to support a claim in discrimination is not as high as the standard of proof in criminal matters.  The civil standard requires the Applicant to prove “on the balance of probabilities” that the Respondent contravened the Act.

3. The High Court case of Briginshaw v Briginshaw is the leading case concerning the civil standard of proof.  Here the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be reasonably satisfied or “feel an actual persuasion” or feel “comfortably satisfied” it can reach a correct and just conclusion for each complaint as alleged against the Respondent.

Applicant’s Complaint

1. The Applicant complains that on various occasions in various locations (either publically or in circumstances where other members of the public could hear the vilification)  the Respondent at various times called she and her family various names including “you in-bred Muslims”, “go back to your cage you fucking monkeys”, “in-bred monkeys are out, fuck off to your cage”, “you fucking black bitch, I will come to your house when you are asleep” and “what are you looking at you fucking black bitch”.

2. There are various other complaints over 3 or 4 years.

3. The Applicant made a complaint to the Anti-Discrimination Commission which accepted the complaint, notwithstanding that some of the vilification was alleged in the period prior to one (1) year before the complaint was made.

4. The Respondent in his evidence denied saying all of the things alleged, but admitted some.

5. In the circumstances I am satisfied that the Respondent incited contempt for or ridicule of the Applicant on the ground of her race.

6. There was also a claim of sexual harassment which the Applicant said at the hearing that she wanted to pursue.  However, there is no evidence  to satisfy the Tribunal to the standard required that the Respondent sexually harassed the Applicant.

7. The Applicant does not seek an apology.  The Applicant has sought an order that the Respondent pay a third party an amount of money.

8. In the circumstances it would be unreasonable to make the Respondent pay money to a third party and the Tribunal declines to make such an order.