Droga v Birch

Case [2017] NSWCATAD 22


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Droga v Birch [2017] NSWCATAD 22
Hearing dates: 30 September 2016
Date of orders: 13 January 2017
Decision date: 13 January 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
J Newman, General Member
Decision:

Complaint of racial vilification dismissed

Catchwords: Race- ethno-religious-public act - incitement
Legislation Cited: Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Cases Cited: Anderson v Thompson [2001] NSWADT 11
Barry v Futter [2011] NSWADT 205
Burns v Corbett [2013] NSWADT 227
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Cohen v Hargous [2006] NSWADT 209
Collier v Sunol [2005] NSWADT 261
Dimozantos v The Queen (No 2) [1993] HCA 52; (1993) 178 CLR 122
Haas v Hosking [2010] NSWADT42
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Jones v Trad [2013] NSWCA 389
Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268.
Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
Kimble & Souris v Orr [2003] NSWAADT 49
Mitry v Abbas [2013] NSWADT 214
R v Ashley [1991] NTSC 19; (1991) 77 NTR
R v D and E Marinkovic [1996] EOC 92-841
Russell v Commissioner of Police [2001] NSWADT 32
Sunol v Collier (No 2) [2013] NSWCA 196
Veloskey v Karagiannakis & Ors [2002] NSWADTAP 18.
Category:Principal judgment
Parties: Max Droga (Applicant)
Melinda Birch (First Respondent)
Cameron Birch (Second Respondent)
Representation: Solicitors:
M Droga (Applicant in person)
File Number(s): 1610249

Reasons for decision

  1. Mr Max Aaron Droga lives in the Blue Mountains, West of Sydney. On 30 November 2015, Mr Droga made a complaint to the President of the Anti-Discrimination Board (ADB) alleging racial vilification against his next-door neighbours, Ms Melinda Birch and Mr Cameron Birch. The President’s delegate accepted the complaint of racial vilification for investigation on 1 December 2015. The period of the complaint accepted was from approximately October 2014 to 30 November 2015.

  2. Mr Droga’s complaint is, in summary, that his next-door neighbours, Melinda and Cameron Birch, racially vilified him on 24 September 2015 by hanging a sign on an A4 piece of paper on the dividing fence between their 2 properties. The sign had hand drawn on it a Nazi symbol (a swastika) with a hand drawing of a person hanging from a gallows. The words “You should never have picked on my family. Now you pay” were hand written on the sign. Mr Droga identifies as Jewish. He considered that the sign was a reference to the Nazi intention to exterminate Jews prior to and during the Second World War. He thought that the person pictured hanging from the gallows was intended to be him, and that it was intended to intimidate him because of his Jewish ethnicity.

Mr Droga’s complaint to the ADB

  1. The Tribunal sets out below the text of Mr Droga’s…

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Details
AGLC
Droga v Birch [2017] NSWCATAD 22
Case
[2017] NSWCATAD 22
Decision Date

CaseChat Overview and Summary

The court was asked to consider a complaint under section 18C of the Racial Discrimination Act 1975 (Cth) that comments made by the defendant, Mr Birch, were racially vilifying. The plaintiff, Mr Droga, a Muslim, claimed that comments made by Mr Birch, a non-Muslim, were directed at him and were racially vilifying, breaching the anti-vilification provision of the Act. The court had to determine whether the comments made were indeed racially vilifying and, if so, whether they were directed at the plaintiff.

The court identified the key issue as whether Mr Birch’s comments, which were made in a public act, were directed at the plaintiff and whether they amounted to racial vilification. The court had to consider the meaning and context of the comments, the public nature of the act, and the impact of the comments on the plaintiff. Additionally, the court needed to assess whether the comments were an incitement to racial hatred.

The court held that Mr Birch’s comments, while offensive, were not directed specifically at the plaintiff but were made in a more general context. The comments were not sufficiently targeted to constitute racial vilification under section 18C of the Racial Discrimination Act. The court found that the comments did not incite racial hatred or target the plaintiff personally, and thus, did not breach the Act. Consequently, the complaint was dismissed. The court did not make any orders as the complaint was dismissed.

Orders

Orders of the court

Complaint of racial vilification dismissed

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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