CITATION: Haas v Hosking [2010] NSWADT 42 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Peter Haas
Phillip HoskingFILE NUMBER: 081088 HEARING DATES: 11, 12 February 2009, 20 May 2009, 6 July 2009 SUBMISSIONS CLOSED: 6 July 2009
DATE OF DECISION:
11 February 2010BEFORE: Perrignon R - Judicial Member; Monaghan-Nagle L - Non-Judicial Member; Kelleghan D - Non-Judicial Member CATCHWORDS: Racial vilification - public act - whether Tribunal satisfied that words alleged were uttered LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Anderson v Thompson [2001] NSWADT 11
Burns v Dye [2002] NSWADT 32
Burns v Laws (EOD) [2008] NSWADTAP 32
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Cohen v Hargous [2006] NSWADT 209
Collier v Sunol [2005] NSWADT 261
Hosking & Anor v Haas & Anor [2009] NSWSC 624
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
Kimble & Souris v Orr [2003] NSWAADT 49
Russell v Commissioner of Police [2001] NSWADT 32
Veloskey v Karagiannakis & Ors [2002] NSWADTAP 18REPRESENTATION: APPLICANT
RESPONDENT
In person
A Connolly, barristerORDERS: The application is dismissed
REASONS FOR DECISION
1 The Applicant, Mr Haas, owns a holiday house situated on an estate at Moama in southern New South Wales. He occupies and owns lot 12 on the estate. The Respondent, Mr Hosking, lives at lot 15. The western boundary of each lot – which forms the rear boundary of each - abuts a public reserve, consisting of bushland on the foreshores of the Murray River.
Complaint
2 On 28 April 2008, Mr Haas complained to the Anti-Discrimination Board that, on 1 November 2007, Mr Hosking had attended Mr Haas’ property and racially vilified him, by saying ‘that he was not going to have fucking Jews build anything near him’, or ‘that he was not going to let fucking Jews build a shed near him’.
3 By the time the complaint was lodged, both men were involved in a serious dispute over whether Mr Haas had the right to build a shed near his rear boundary, abutting the public reserve. On 2 and 14 November 2007, Mr Hosking had caused his solicitors to write to Mr Haas about it. In the second letter, the solicitors revealed their instructions to commence proceedings in the Supreme Court for injunctive relief unless work ceased on the shed. Despite this, the shed was ultimately built. The facts are recited more fully in the interim judgment of Bergin CJ in Eq: Hosking & Anor v Haas & Anor [2009] NSWSC 624.
4 On 7 March 2008, Mr Hosking commenced proceedings in the Supreme Court, as foreshadowed. He sought orders, among other things, that the shed be demolished. He claimed that the erection of the shed had been in breach of covenants affecting lots in the estate. The Statement of Claim was served on Mr and Mrs Haas on 28 March 2008. Those proceedings were still on…
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- AGLC
- Haas v Hosking [2010] NSWADT 42
- Case
- [2010] NSWADT 42
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Tribunal was correct in its conclusion that the words alleged to have been spoken by Hosking were not sufficiently grave to constitute a public act of racial vilification. The Court needed to examine the extent to which the Tribunal had considered the impact and context of the words, and whether the Tribunal's approach to the evidence was appropriate. The Court also had to determine if the Tribunal's findings were open to the Full Court upholding them, given the statutory framework governing the RDT's decisions.
The Court, after examining the relevant legislative provisions and the evidence before the Tribunal, concluded that the Tribunal had not erred in its assessment of the gravity of the words in question. The Court held that the Tribunal's approach to the evidence was not flawed and that it had appropriately considered the context and impact of the words. The Court further determined that the Tribunal's findings were reasonable and that the Full Court was correct in upholding the RDT's decision. Consequently, the Court dismissed the applicant's appeal, affirming the Tribunal's decision that Hosking was not guilty of engaging in a public act of racial vilification.
Orders
Orders of the court
The application is 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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