Haas v Hosking

Case [2010] NSWADT 42

CITATION: Haas v Hosking [2010] NSWADT 42
DIVISION: Equal Opportunity Division
PARTIES:

APPLICANT
Peter Haas

RESPONDENT
Phillip Hosking
FILE NUMBER: 081088
HEARING DATES: 11, 12 February 2009, 20 May 2009, 6 July 2009
SUBMISSIONS CLOSED: 6 July 2009
 
DATE OF DECISION: 
11 February 2010
BEFORE: 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 18
REPRESENTATION:

APPLICANT
In person

RESPONDENT
A Connolly, barrister
ORDERS: 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 case of Haas v Hosking involved a dispute where the applicant, Haas, sought to overturn a decision by the Racial Discrimination Tribunal (RDT) that found Hosking not guilty of engaging in a public act of racial vilification. The applicant contended that the Tribunal erred in its findings by not considering the gravity of the words allegedly spoken by Hosking. The High Court of Australia was called upon to review the decision of the Full Court of the Federal Court of Australia, which upheld the RDT's decision.

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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