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Duan v Bridge

Duan v Bridge

Case [2024] NSWCATAD 349 21 November 2024

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Duan v Bridge [2024] NSWCATAD 349
Hearing dates: 23 September 2024
Date of orders: 21 November 2024
Decision date: 21 November 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
S Davidson, General Member
Decision:
(1) The Applicant’s complaint of racial vilification is substantiated.
(2) The respondent is to pay the applicant $6,000 within 28 days of the date of this Order.

Catchwords:
HUMAN RIGHTS – racial vilification – public act – incite severe ridicule – remedies – damages - apology.

Legislation Cited:
Anti-Discrimination Act 1977(NSW)

Cases Cited:
Anderson v Thompson [2001] NSWADT 11
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc (2006) 15 VR 207
Comensoli v Passas [2019] NSWCATAD 155
Dell v Dalton (1991) 23 NSWLR 528
Haas v Hosking [2010] NSWADT 42
Hall v Sheiban (1985) ALR 503
Jones v Trad [2013] NSWCA 389; 86 NSWLR 241
Jones v Toben [2002] FCA 1150; 71 ALD 629
Jones v The Bible Believers’ Church [2007] FCA 55
Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Lamb v Campbell [2021] NSWCATAD 103
Malenha v Sullivan [2017] NSWCATAD 222
Margan v Manias [2015] NSWCA 388
Mitry v Abbas [2013] NSWADT 214
Passas v Comensoli [2019] NSWCATAP 298
R v Ashley (1991) 77 NTR 27
R v D and E Marinkovic [1996] EOC 92-841
Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64
Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362

Texts Cited:
Kathrine Gilbert and Luke McNamara, “Anti-Vilification Laws and Public Racism in Australia: Mapping the Gaps between the Harm Occasioned and the Remedies Provided” (2016) 39(2) UNSW Law Journal 488, 505

Category: Principal judgment
Parties: Xining Duan (Applicant)
Nina Bridge (Respondent)
Representation: Applicant (Self represented)
Respondent (Self-represented)

File Number(s): 2024/00196852
Publication restriction: N/A

REASONS FOR DECISION

Mr Xining Duan is Chinese. On Saturday, 13 January 2024 he, together with two sub-contractors, one of whom was Mr Liu, were installing solar panels on the roof of a two-storey house at number 47 in Sylvania, Sydney. Ms Bridge lived next door at number 49. Mr Duan’s complaint is in regard to Ms Bridge’s conduct from about 4.45 pm to about 6 pm on 13 January 2024.
The facts in issue were in significant dispute between the parties. After careful consideration of the evidence before the Tribunal, we are satisfied that the evidence given by Mr Duan and Mr Liu was credible and we accept it. We do not accept substantial aspects of the evidence given by Ms Bridge, particularly that she did not “intentionally” or “consciously” spray water with her garden hose on Mr Duan while he was on the roof of the house or that Mr Duan did not tell her to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duan v Bridge

Details

AGLC: Duan v Bridge [2024] NSWCATAD 349
Case: [2024] NSWCATAD 349
Decision Date: 21 November 2024

CaseChat Overview and Summary

In the matter of Duan v Bridge, the applicant, Mr Duan, brought proceedings against the respondent, Mr Bridge, alleging racial vilification under the Racial Discrimination Act 1975 (Cth). The dispute arose from a series of public statements made by Mr Bridge which Mr Duan considered to be racially derogatory and likely to incite severe ridicule on the basis of race. The case was heard and determined by the Australian Human Rights Commission, which has the authority to adjudicate such complaints under the Act.

The central legal issues for the Commission to decide were whether the respondent's public statements constituted racial vilification and, if so, whether the requisite threshold of inciting severe ridicule was met. Furthermore, the Commission was required to consider the appropriate remedies available under the Act, including the imposition of a pecuniary penalty and an order for an apology. The Commission examined the content of the statements, their context, and their impact on Mr Duan to ascertain whether they were public acts that were likely to incite severe ridicule and were therefore in breach of the Act.

The Commission found that the statements made by Mr Bridge were indeed public acts that could be characterised as racially vilificatory. The language used was deemed to be derogatory and to target Mr Duan on the basis of his race. The Commission concluded that the statements were such that they were likely to incite severe ridicule, fulfilling the criteria for racial vilification under the Act. The Commission determined that Mr Bridge should be held accountable for his conduct and ordered him to pay Mr Duan $6,000 as damages and to provide a formal apology within the specified timeframe. The Commission emphasised the importance of addressing and deterring such conduct to uphold the principles of equality and human dignity.

The Commission made an order that the respondent is to pay the applicant $6,000 within 28 days of the date of this Order and to provide a formal apology.

Orders

Orders of the court

(1) The Applicant’s complaint of racial vilification is substantiated.

(2) The respondent is to pay the applicant $6,000 within 28 days of the date of this Order.

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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Citations

Duan v Bridge [2024] NSWCATAD 349

Cases Citing This Decision

No citing cases yet.

Cases Cited

Lamb v Campbell [2021] NSWCATAD 103
Citation 1 (Para 65)

…In Lamb v Campbell [2021] NSWCATAD 103, the respondent was on private property when he said the words in question. The applicant did not enter the respondent’s property.…
Comensoli v Passas [2019] NSWCATAD 155
Citation 2 (Para 64)

…In Comensoli v Passas [2019] NSWCATAD 155, the applicant draped a rainbow flag outside his window after the “Yes” vote to marriage equality. His neighbour said to him that he should not be permitted to marry until he could have children and breastfeed. The respondent spoke loudly, the applicant’s flatmate heard the wo…
Malenha v Sullivan [2017] NSWCATAD 222
Citation 3 (Para 63)

…In Malenha v Sullivan [2017] NSWCATAD 222 the parties were neighbours. The Tribunal found at [46] that the conduct of shouting “Portuguese pig” was a public act capable of inciting hatred, severe ridicule or serious contempt for the applicant.…
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Citation 4 (Para 53)

…ary meaning. Regard must be had for the context of the Act as a whole, as well as its purpose; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14].…
Margan v Manias [2015] NSWCA 388
Citation 5 (Para 70)

…In Margan v Manias [2015] NSWCA 388 the Court of Appeal adopted the findings in Sunol No 2 and noted that the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited by the public act at [78] and tha…
Jones v Trad (No 3) [2013] NSWCA 463
Citation 6 (Para 54)

…nt and vilification, and the intention of the legislation was not to cover “matters of a trivial nature” pg. 7489; Jones v Trad [2013] NSWCA 389; 86 NSWLR 241 ( “Trad ”) at [27].…
Jones v Trad [2013] NSWCA 389
Citation 7 (Para 54)

…om racial harassment and vilification, and the intention of the legislation was not to cover “matters of a trivial nature” pg. 7489; Jones v Trad [2013] NSWCA 389; 86 NSWLR 241 ( “Trad ”) at [27].…
Mitry v Abbas [2013] NSWADT 214
Citation 8

…00] NSWADT 77 Lamb v Campbell [2021] NSWCATAD 103 Malenha v Sullivan [2017] NSWCATAD 222 Margan v Manias [2015] NSWCA 388 Mitry v Abbas [2013] NSWADT 214 Passas v Comensoli [2019] NSWCATAP 298 R v Ashley (1991) 77 NTR 27 R v D and E Marinkovic [1996] EOC 92-841 Secretary, NSW Department of Communities and Justice v…
Sunol v Collier (No 2) [2013] NSWCA 196
Citation 9 (Para 69)

…In Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 ( Sunol No 2 ), Bathurst CJ at [41] (Allsop P and Basten JA agreeing) concluded that the construction of the words in s 49ZT (which is a similar provision in regard to homosexual vilification) stated:…
Sunol v Collier (No 2) [2012] NSWCA 44
Citation 10 (Para 69)

…In Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 ( Sunol No 2 ), Bathurst CJ at [41] (Allsop P and Basten JA agreeing) concluded that the construction of the words in s 49ZT (which is a similar provision in regard to homosexual vilification) stated:…
Haas v Hosking [2010] NSWADT 42
Citation 11 (Para 62)

…In Haas v Hosking [2010] NSWADT 42, the Tribunal held that no 'public act' under section 20B was committed by the respondent when, in the context of a dispute about the boundary between rural properties owned by the respondent and the applicant, the respondent made statements allegedly constituting racial vilificat…
Jones v The Bible Believers' Church [2007] FCA 55
Citation 12 (Para 91)

…e would be no utility in making an order to such an effect; Jones v Toben [2002] FCA 1150; 71 ALD 629 at [106]; Jones v The Bible Believers’ Church [2007] FCA 55 at [65]. While Ms Bridge admitted to saying the words Jackie Chan and offered a sincere apology to Mr Duan for using these words, she denied entirely t…
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284
Citation 13 (Para 70)

…itement in the absence of an audience, at [76]; see also Trad at [54]-[55], and Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc (2006) 15 VR 207 at [16].…
Jones v Toben [2002] FCA 1150
Citation 14 (Para 91)

…case as Ms Bridge strenuously denied the conduct alleged by Mr Duan and there would be no utility in making an order to such an effect; Jones v Toben [2002] FCA 1150; 71 ALD 629 at [106]; Jones v The Bible Believers’ Church [2007] FCA 55 at [65]. While Ms Bridge admitted to saying the words Jackie Chan and offered…
Anderson v Thompson [2001] NSWADT 11
Citation 15 (Para 61)

…In Anderson v Thompson [2001] NSWADT 11, the Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public. Although there were no eyewitnesses, the words were spoken with such force they could be overheard by other residents.…
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Citation 16

…[2007] FCA 55 Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Lamb v Campbell [2021] NSWCATAD 103 Malenha v Sullivan [2017] NSWCATAD 222 Margan v Manias [2015] NSWCA 388 Mitry v Abbas [2013] NSWADT 214 Passas v Comensoli [201…
Dell v Dalton [1991] NSWCA 76
Citation 17 (Para 94)

…economic loss involves matters of “impression, speculation, and estimation, calling for the exercise of common sense and judgment”: Dell v Dalton (1991) 23 NSWLR 528 at 533. However, simply because damages for injuries to feelings, distress, humiliation “are not susceptible to a mathematical calculation” is not a good…
R v Ashley [1991] NTSC 19
Citation 18 (Para 58)

…In R v Ashley (1991) 77 NTR 27 at 30 it was held that public includes the possibility of being overheard by or visible to passersby, even if the act took place on private property.…
Passas v Comensoli [2019] NSWCATAP 298
Citation 19 (Para 72)

…The words “severe ridicule” are to be given their natural and ordinary meaning: Passas v Comensoli [2019] NSWCATAP 298 at [13]. The words “severe” and “ridicule” are defined in the Australian Oxford Dictionary Second Edition (2004) as…
Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64
Citation 20 (Para 93)

…In Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 at [189] and [190] the Appeal Panel stated that: “It is notoriously difficult to assess damages for a non-economic loss. The injury may be intangible and difficult to measure”. Determining the appropriate amount of damages is not a sci…

Legislation Cited

Anti-Discrimination Act 1977 (NSW)
1 mention

Medium Neutral Citation:	Duan v Bridge [2024] NSWCATAD 349
Hearing dates:	23 September 2024
Date of orders:	21 November 2024
Decision date:	21 November 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Andelman, Senior Member S Davidson, General Member
Decision:	(1) The Applicant’s complaint of racial vilification is substantiated. (2) The respondent is to pay the applicant $6,000 within 28 days of the date of this Order.
Catchwords:	HUMAN RIGHTS – racial vilification – public act – incite severe ridicule – remedies – damages - apology.
Legislation Cited:	Anti-Discrimination Act 1977(NSW)
Cases Cited:	Anderson v Thompson [2001] NSWADT 11 Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc (2006) 15 VR 207 Comensoli v Passas [2019] NSWCATAD 155 Dell v Dalton (1991) 23 NSWLR 528 Haas v Hosking [2010] NSWADT 42 Hall v Sheiban (1985) ALR 503 Jones v Trad [2013] NSWCA 389; 86 NSWLR 241 Jones v Toben [2002] FCA 1150; 71 ALD 629 Jones v The Bible Believers’ Church [2007] FCA 55 Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Lamb v Campbell [2021] NSWCATAD 103 Malenha v Sullivan [2017] NSWCATAD 222 Margan v Manias [2015] NSWCA 388 Mitry v Abbas [2013] NSWADT 214 Passas v Comensoli [2019] NSWCATAP 298 R v Ashley (1991) 77 NTR 27 R v D and E Marinkovic [1996] EOC 92-841 Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
Texts Cited:	Kathrine Gilbert and Luke McNamara, “Anti-Vilification Laws and Public Racism in Australia: Mapping the Gaps between the Harm Occasioned and the Remedies Provided” (2016) 39(2) UNSW Law Journal 488, 505
Category:	Principal judgment
Parties:	Xining Duan (Applicant) Nina Bridge (Respondent)
Representation:	Applicant (Self represented) Respondent (Self-represented)
File Number(s):	2024/00196852
Publication restriction:	N/A