Huenerberg v Murray - [2023] QCAT 175

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Huenerberg v Murray [2023] QCAT 175
PARTIES: DIRK HUENERBERG
(applicant)
v
JASON SCOTT MURRAY
(respondent)
APPLICATION NO/S: ADL071-22
MATTER TYPE: Anti-discrimination matters
DELIVERED ON: 2 May 2023
HEARING DATES: 21 April 2023
HEARD AT: Brisbane
DECISION OF: Member P Roney KC

ORDERS:

1.

The respondent shall pay to the applicant the sum of $3,300.00 by way of compensation for racial vilification.

2.

The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS: ANTI-DISCRIMINATION– RACIAL VILIFICATION –
– where comments made about applicant’s national
origin – where applicant publicly called derogatory name
– public act – communication to the public – racially
based insults directed to a party across neighbourhood
boundary
Campbell v Kirstenfeldt [2008] FMCA 1356
Burns v Dye [2002] NSW ADT 32
Deen v Lamb [2001] QADT 20
Wilson & McCollum v Lawson & Anor [2008] QADT 27
Singh v Shafston Training One Pty Ltd and Anor [2013]
QCAT 8.
R v Ashley [1991] NTSC 19
Kane v Church of Jesus Christ Christian Aryan Nations
(No 3) (1992) 18 CHHR 268.
Anderson v Thompson [2001] NSWADT 11
Menzies & Ors v Owen [2008] QADT 20

Anti-Discrimination Act 1991 (Qld), s 4A, s 124A, s 130(1)
APPEARANCES &
REPRESENTATION:
Applicant: Self- represented
Respondent: Mr Rod Mugford, Solicitor, Jeff Horsey Solicitors
REASONS FOR DECISION

Dirk Huenerberg, the complainant, is an Australian citizen and has been for more than 25 years. He is 78 years of age. His country of origin was Germany. He speaks with a heavy German accent, and clearly struggles to some degree with the English language, as evidenced by his conduct of the hearing before me. English is not his first language.
He did appear to have a reasonably good understanding of spoken English, but at times he struggled to articulate himself. Because he spoke with a heavy accent, to any person like his neighbours to whom he spoke, it would have been obvious that he had not grown up in Australia, and that English was not his native tongue.
At the time relevant to his complaint he lived in his home at 14 Bunderoo Circuit Pimpama. His neighbours, at number 12 Bunderoo Circuit were the respondent’s father Robert Murray and his father’s partner, referred to at different times in the evidence as the respondent’s “stepmother” and his father’s “girlfriend”. Her name is apparently Allison. There is uncontradicted evidence that she was well aware that the applicant was originally from Germany for reasons I will describe shortly.
The complaint against the respondent is that on 4 July 2021 at around 11:00am he engaged in racial vilification of the complainant, essentially by making an offensive and insulting remark by calling him a “fucking German cunt”. The incident occurred on or about the front boundaries of neighbouring residential properties in a suburb south of Brisbane. The essential difference between the parties’ respective cases concerns whether the words used were “fucking…

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 Huenerberg v Murray

Details

AGLC: Huenerberg v Murray [2023] QCAT 175
Case: [2023] QCAT 175
Decision Date

CaseChat Overview and Summary

In the matter of Huenerberg v Murray, the Queensland Civil and Administrative Tribunal (QCAT) addressed a complaint of racial vilification under the Anti-Discrimination Act 1991 (Qld). Dirk Huenerberg, the complainant, alleged that Jason Scott Murray had racially vilified him by calling him a "fucking German cunt" on 4 July 2021. Murray denied these allegations, claiming he had said "vermin cunt" instead, a term that he insisted had no racial connotation. The dispute hinged on the exact words used and the intent behind them, with the primary legal issue being whether Murray's statement constituted racial vilification under Section 124A of the Act. The Tribunal found that the evidence supported Huenerberg's account, and the comment was indeed capable of inciting hatred or severe contempt based on race. Given the offensive nature of the comment and its impact on Huenerberg, the Tribunal ordered Murray to pay Huenerberg $3,300 in compensation. The decision underscored the importance of considering the context and impact of words used in public, especially when they carry racial undertones.

Orders