Fitz-Gibbon & Park v Liu - [2022] QCAT 259

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fitz-Gibbon & Park v Liu [2022] QCAT 259

PARTIES:

PETER GERALD FITZ-GIBBON & SUNNY CHELL PARK

(applicant)

v

JINGRU (LAURA) LIU & ROBERT DEACON

(respondent)

APPLICATION NO/S:

ADL065-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

12 July 2022

HEARING DATE:

18 March 2022

HEARD AT:

Cairns

DECISION OF:

Member Pearce

ORDERS:

1.       Jingru (Laura) Liu sexually harassed Peter Gerald Fitzgibbon and Sunny Chell Park.

2.       Robert Deacon sexually harassed Peter Fitzgibbon and Sunny Chell Park.

3. The Respondents are ordered to not commit further contraventions under the ADAQ Act against the Applicants.

4.       The parties bear their own costs.

CATCHWORDS:

ANTI-DISCRIMINATION MATTERS – SEXUALITY – sexual harassment established, vilification – no incitement – “Kill the Faggots”- found to sexually harass.

Anti-Discrimination Act 1991 (Qld), s4A(1)(b), 118-119, 124A, 313A, 166, 209

Queensland Civil and Administrative Tribunal Act 2009, s34

Wilson & McCollum v Lawson & Anor [2008] QADT 27

GLBTI v Wilks [2007] QADT 27

Burns v Dye [2002] NSW ADT 32

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

THE PARTIES

The Applicants

The applicants have made a complaint regarding sexual vilification and sexual harassment against their neighbours, respondent Ms Liu and Mr Deacon. The respondent, Ms Liu has also made a complaint of racial vilification against the applicants Mr Fitz-Gibbon and Mr Park. This has been dealt with in a separate decision. Both matters were heard together over a 2-day hearing in Cairns on the 17^th and 18^th of March 2022.
From the outset it should be noted that these complaints are merely two in a long history of disputes and actions between the parties involved. There appears to be a long history of ongoing disputes between the parties ranging from fencing disputes, noise complaints, reports to council for contraventions of council by-laws and even assault. Police have also been involved and there appears to be peace and good behaviour orders in place against each other.
Mr Fitz-Gibbon and Mr Park purchased land from the respondent and constructed their home. It appears relations between the parties were amicable until a dispute arose over a dividing fence. Although there are various versions of when the disputes arose. Since that period of time there have been a great number of ongoing disputes with behaviour appearing to escalate.

The Respondent

The applicants reside next door to the respondent. The respondent Ms Lui is a resident of Australia of Chinese descent. The respondent provided information to the Tribunal that she had sub-divided her land and sold one of the housing blocks to the respondents who subsequently constructed a home, which is how they came to be neighbours.

BACKGROUND

On 22 June 2020 the applicants made a complaint to the Queensland Human Rights Commission (“QHRC”) for sexual vilification under s124A of the Anti-Discrimination Act 1991 (Qld) (“ADAQ Act”). This matter was unable to be resolved by the QHR and as a result referred to QCAT pursuant to section 166 of the ADAQ Act

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 Fitz-Gibbon & Park v Liu

Details

AGLC: Fitz-Gibbon & Park v Liu [2022] QCAT 259
Case: [2022] QCAT 259
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) considered complaints of sexual harassment and vilification made by Peter Gerald Fitz-Gibbon and Sunny Chell Park against their neighbours, Jingru (Laura) Liu and Robert Deacon. The applicants alleged that Ms Liu and Mr Deacon engaged in conduct that was offensive and targeted them due to their same-sex relationship. The Tribunal heard evidence over two days and reviewed various documents and recordings provided by the parties. QCAT found that Ms Liu and Mr Deacon's conduct amounted to sexual harassment under section 118 of the Anti-Discrimination Act 1991 (Qld) but did not meet the threshold for vilification under section 124A of the Act.

The Tribunal concluded that the offensive language and music played by Ms Liu and Mr Deacon, including the repeated use of the term "faggot" and the playing of "gangster rap" songs containing derogatory terms, had sexual connotations and were intended to offend and humiliate the applicants. The conduct was found to meet the definition of sexual harassment as it was made with the intention of offending, humiliating, or intimidating the applicants or in circumstances where a reasonable person would have anticipated that the applicants would be offended, humiliated, or intimidated. However, QCAT found that the conduct did not incite hatred, serious contempt, or severe ridicule of the applicants on the basis of their sexuality and therefore did not amount to vilification. The Tribunal held that for conduct to be considered vilification, it must be a public act and there must be incitement to others to engage in the requisite hatred, contempt, or ridicule.

The Tribunal ordered that Ms Liu and Mr Deacon were to cease their harassing conduct and bear their own costs. No damages were awarded as the applicants failed to demonstrate any quantifiable harm caused by the respondents' conduct.

Orders