Droga v Birch

[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

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