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 17th and 18th 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.
The applicants also allege they have been the victim of sexual harassment under section 118 of the ADAQ Act.
The applicants’ complaint was that on 18 May 2020 at 5:20pm Mr Fitz-Gibbon was in his home preparing the evening meal when he heard a loud cry from the respondent “Kill the fags”. He states this was immediately followed by the playing of a “gangster rap” song containing the words “Kill that faggot” played repeatedly. The applicants state this was audible outside the house for an estimated 100 metres, and they allege it was a homophobic slur due to them being in a same sex relationship.
Mr Fitz-Gibbon states in his complaint that due to the relationship between the 2 households he keeps a diary of events. Entries from that diary were made available to the Tribunal.
The applicants allege that when Mr Park goes outside to do the gardening the offensive rap music is played. The applicants state that this has occurred multiple times with the song being repeated for up to 10 times on each occasion. The applicants have provided dates and details of these events recorded in a diary.
The applicants further allege that on a morning walk on 8 January 2021 the respondent Mr Deacon, yelled “Go away faggots” and “you are going to perve in the neighbourhood” at the applicants.
The applicants provided a number of media items including photos and recordings of the conduct. The Tribunal has considered these.
The respondent has not denied playing music however states she does so in her own home using a sound system that does not produce overly loud music.
Both the applicant and the respondents in their written submissions and during the hearing have raised an enormous number of instances of antagonism and negative interaction between each of them that appears to extend over a considerable period. These included allegations of damage to vehicles, burying dead fish under bushes, the placement of rubbish bins, interactions with guests at both properties and assaults, none of which are relevant to the proceedings before the Tribunal. Due to the long-standing nature of their various disputes, it is clear that both parties were unable to particularise the issues relevant to the hearing. A great number of acts were raised. The Tribunal will only deal with the items below that form the basis of the complaint to the QHRC under section 124A of the ADAQ Act.
The applicant did not produce any witnesses. Mr Park gave evidence and was cross examined by the respondents.
Having found that the series of unfortunate events did happen. I must now determine whether the conduct falls within the ambit of the ADAQ Act. The ADAQ Act provides two possible avenues of redress that need to be considered with respect to the application. These are:
Sexual harassment; and
Vilification
SEXUAL HARRASSMENT
The prohibition on sexual harassment is found in section 118 of the ADAQ Act. Section 119 of the ADAQ Act defines sexual harassment to happen if a person:
(c) makes a remark with sexual connotations relating to the other person;
***
And the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so –
(e) with the intention of offending, humiliating or intimidating the other person; or
(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
[17] Under the ADAQ Act, the prohibition on sexual harassment is not constrained to one particular area but is without limits and can apply to all facets of life. The law as it relates to sexual harassment, in the context of a matter also involving homosexual vilification was adeptly set out in Member Roney’s decision in Wilson & McCollum v Lawson & Anor[1]. Member Roney explained that joking and ridicule because of homosexuality may amount to harassment.[2] In this case the persistent use of the terms “ladies”, “Princess” and “girls” in reference to homosexual men was found to amount to sexual harassment.
[1][2008] QADT 27.
[2]Wilson & McCollum v Lawson & Anor [2008] QADT 27 at 78.
Further, although used in reference to homosexual men, use of the term “faggot” was found to be a term that would obviously cause offence. Similarly, I find that the use of the term “faggot” in this case both through speech and the deliberate playing of lyrics repeating this to be easily found to be offensive.
The comments made, and the music played have clear sexual connotation. I find that these comments and conduct were made with the intention of offending and humiliating the applicants. The term is demeaning in the context of sexuality. It is my view that any reasonable person would anticipate that such conduct would be offensive to the applicants. This amounts to sexual harassment as prohibited by the ADAQ Act.
VILIFICATION
For vilification to occur, three distinct points must be satisfied. Firstly, the unlawful discrimination must occur on the grounds of either race, religion, sexuality or gender identity. Secondly, a person contravening the ADAQ Act must engage in an activity to either incite hatred, serious contempt, or severe ridicule of a person or group of persons on the basis of their race, religion, sexuality or gender identity. Thirdly, the inciting of hatred, serious contempt or sever ridicule must be a public act.[3]
[3]Anti-Discrimination Act 1991 (Qld) s 124A(1).
A public act[4] is described as any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
[4]Ibid., s4A.
The obvious questions for the Tribunal to answer is, does the comments and conduct of objectionable nature, exhibited by the respondents, regardless of how distasteful they are, fall within the ambit of vilification? To reach a determination on that question, there is a requirement for the Tribunal to explore the definition of vilification and apply each part to the circumstances being complained of.
The prohibition as prescribed in the definition implies that the threshold for vilification is that is has to be a public act. For there to be any basis in the Applicant’s argument there must be evidence of a public act. For it to be a public act there must be a communication to the public. This includes conduct observable by the public.
Member Savage, SC, in GLBTI v Wilks[5] outlined the principles that should be considered in matters involving complaints of homosexual vilification:
[5][2007] QADT 27 at 15
I accept that in considering whether the section has been contravened:
(a) The respondent’s intent to incite is irrelevant.
(b) What is required is that there has been incitement to another to hate etc rather than a mere conveyance of hatred already held by the speaker.
(c) “incite”, “hatred”, “contempt” and “ridicule” should all be given the ordinary natural meaning i.e., to incite – urge on, stimulate or prompt action.
(d) It is not necessary that it be proved that any particular person was incited but that the capacity of the public act to incite the ordinary reasonable person is what must be made out.
(e) The incitement to hatred must be on “the grounds of sexuality” meaning that the matter was a “substantially contributing factor”. Sexuality is defined in the Act’s scheduled Dictionary as inter alia homosexuality.
Regards must next be had to section 4A(1)(b) of the ADAQ Act which defines public act as:
“any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia”.
The playing of the “Gangster Rap”
In this instance, the conduct that applicants complain of take place in such a way and at such a volume that the lyrics and music itself is able to be heard by neighbours and acquaintances. I therefore conclude that the requirement for vilifying conduct to happen in public is satisfied.
[27] the remaining question is whether it incited “hatred towards, serious contempt for, or severe ridicule of a person”. There is no meaning given to these words in the Dictionary to, or elsewhere within, the ADAQ Act. In my view the playing of the offensive music demonstrates that the respondents have serious contempt for the applicants and are ridiculing the applicants because of their sexuality.
The yelling of abuse and the word “Faggot”
In this instance, the conduct took place in the street outside the applicant’s property. It was daylight and as such highly observable by neighbours. The vilifying conduct is accepted as public.
Again the words used are clearly an indication of contempt for the applicants and an attempt to ridicule. The use of the particular words chosen are on their own capable of amounting to sexual harassment, but they cannot amount to vilification unless they can be seen to incite others to become active participants in the requisite hatred, contempt or ridicule displayed by the respondent towards the applicants. In Burns v Dye[6] the New South Wales Anti-Discrimination Tribunal considered that relevant factors in making this determination include:
[6][2002] NSW ADT 32.
the contact in which the abuse occurred, the tone of voice used by the alleged vilifier and the observable relationship between the villifier and his/her victim
There must be conduct that goes beyond the respondents’ mere disdain and hatred of the applicants. The respondent must have sought to incite others to take part in this conduct. I am not satisfied this is the case.
FINDINGS OF THE TRIBUNAL
Aspects of both the applicants and the respondents evidence caused the Tribunal to find both parties unreliable witnesses. Much of the evidence and assertions made by both parties could not be corroborated with the exception of the images provided. It would appear to the Tribunal that the ongoing dispute between the parties has reached such levels that neither is able to clearly articulate or particularise events and issues at hand. Both parties appear to be prepared to go to great lengths to discredit and cause harm to the other.
It is accepted by the Tribunal that the acts of the respondents are in poor taste, are offensive and petty and undoubtedly designed to illicit a negative response from the applicants. They do not however meet the threshold tests under section 124A of the Anti-discrimination Act for sexual vilification. The conduct does however meet the necessary criteria for sexual harassment.
DAMAGES
Section 209 of the ADAQ Act provides that QCAT may make a range of orders in circumstances where the Tribunal has found the conduct complained of is proven.
[34] The applicants have failed to particularise, identify or quantify any damage caused. In fact, in evidence presented to the Tribunal it is the respondent who has relocated residence creating a financial burden. The Tribunal understands that the respondent still retains ownership of property in the close in question. The applicants have highlighted their discomfort with the conduct of the respondent in the verbal attacks and the playing of the music. But it also must be considered that acts of retaliation have also been committed by the applicants.
I see little point in requiring the respondent to issue an apology, private or public. Due to the great animosity between the parties, it would appear any apology would be insincere.
COSTS
For matters determined in the Tribunal, the starting position in relation to costs under the QCAT Act is the principle that, other than as provided under the Act or and enabling Act, each party to a proceeding is to bear its own costs for the proceeding.[7] The Tribunal is satisfied that there are no compelling circumstances why the Tribunal should depart from the presumption as provided with the legislation.[8]
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s. 100.
[8]Ibid.
DECISION
The Tribunal’s decision with regards to the application in this matter is:
1. Jingru (Laura) Liu sexually harassed Peter Gerald Fitz-Gibbon and Sunny Chell Park.
2. Robert Deacon sexually harassed Peter Gerald Fitz-Gibbon and Sunny Chelle 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.
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