Jacobs v Seidenspinner
[2022] TASSC 62
•4 October 2022
[2022] TASSC 62
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Jacobs v Seidenspinner [2022] TASSC 62 |
| PARTIES: | JACOBS, Anthony |
| v | |
| SEIDENSPINNER, Tim | |
| FILE NO: | 556/2022 |
| DELIVERED ON: | 4 October 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 4 October 2022 |
| JUDGMENT OF: | Martin AJ |
| CATCHWORDS: |
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Hearing – Cross- examination – Questions sought answers which were irrelevant – Appeal dismissed.
Aust Dig Administrative Law [1066]
Administrative Law – Judicial review – Grounds of review – Error relating to facts – Minor factual errors of no consequence – Proven facts supported the finding of prohibited conduct – Respondent's heritage was the cause of appellant's conduct – Appeal dismissed.
Aust Dig Administrative Law [1031]
REPRESENTATION:
Counsel:
Appellant: In person Respondent: In person
| Judgment Number: | [2022] TASSC 62 |
| Number of paragraphs: | 50 |
Serial No 62/2022 File No 556/2022
ANTHONY JACOBS v TIM SEIDENSPINNER
| REASONS FOR JUDGMENT | MARTIN AJ 4 October 2022 |
| Introduction |
1 On 17 February 2021 a verbal altercation occurred between the appellant and the respondent in a shopping centre. Following the altercation, the respondent made a complaint under the Anti- Discrimination Act 1998 (the Act) to the Anti-Discrimination Commissioner (the Commissioner) concerning the conduct of the respondent. The Commissioner investigated the complaint and determined that it should not be dismissed. A conciliation conference was unsuccessful and the Commissioner referred the complaint to the Tasmanian Civil and Administrative Tribunal.
2 After a hearing in which both the appellant and the respondent gave evidence, Deputy President Clues found that the appellant's conduct amounted to prohibited conduct pursuant to s 17 of that Act, and ordered that the appellant pay $500 to the respondent as compensation for injuries suffered by the respondent.
3 The appellant appealed against that decision on a number of grounds. Following oral submissions by the appellant the appeal was dismissed. I now set out my reasons for dismissing the appeal.
4 The learned Deputy President made the following findings of fact:
"Findings of Fact
The facts surrounding this complaint were not substantially in dispute. Where there is a dispute I will include reasons why I have made a particular finding of fact:
(a)
On 17 February 2021 at around I I :30am the complainant and Mr Brendon Sproule (Mr Sproule) attended Woolworths in the Wellington Shopping Centre in Argyle/Liverpool Streets.
(b) They collected two full trollies of donated groceries from Woolworths.
(c)
The complainant and Mr Sproule were collecting the donated groceries from Woolworths acting in their capacity as volunteers of "Helping Hands Hobart" performing food pick up. After the food was picked up it was to be delivered to the Uniting Church in Melville Street who redistribute it to needy families and individuals.
(d)
Woolworths in on the basement level of the Wellington Shopping Centre. The complainant and Mr Sproule were waiting on that level for a lift.
(e)
Due to COVID-19 there were occupancy limits for the lifts. Signs outside of the lift doors stipulated a maximum occupancy of two people at a time.
(f)
The complainant and Mr Sproule had to wait for some time before they could both enter a lift on the basement level with two trolleys and not be in breach of the two person limit. They wanted to go from the basement level to where their car was parked on the second or third level.
(g)
When the complainant and Mr Sproule eventually entered the lift, it stopped and the doors opened at ground level. They did not get out.
2 No 62/2022
(h) The respondent and several other people were waiting to get in, including a pregnant lady, Ms A. The evidence of Mr Sproule was that there were 'heaps' of people outside the lift. However, I accept the complainant's evidence that there were five people waiting to get into the lift at the relevant time the incident occurred, two couples and the respondent. (i) Ms A and the respondent moved forward to enter the lift. The respondent denied that he intended to enter the lift at the time that the doors opened revealing the complainant, Mr Sproule and two trolleys of food. The respondent claimed he was standing back and just watching. I find that the respondent was not standing back and that at the relevant time he was in close proximity to the lift. The respondent also gave evidence that he only saw one trolley. I find that there were two trolleys of food in the lift with the complainant and Mr Sproule.
(j) Ms A and the respondent moved forward as if to enter the lift. The complainant told them they could not enter the lift as the maximum occupancy of two people was reached and pointed to the sign relating to the COVID regulations posted outside the lift. (k) The respondent indicated that as Ms A was pregnant she must enter the lift. The complainant responded that Ms A's pregnancy made it more important for her to following the COVID regulations. (I) The respondent then put his arm in the front of the lift doors holding them open and preventing the lift from departing. He called the complainant a Nazi. The respondent denied calling the complainant a Nazi. However, I prefer the evidence of Mr Sproule and the complainant that he did.
(m)
The complainant asked the respondent to remove his arm. The respondent then lifted his arm, making a Nazi salute and said 'Heil Hitler'. The lift then departed.
(n)
The complainant and Mr Sproule went to their car, unloaded all of the groceries and proceeded to leave the car park. Mr Sproule was driving.
(o)
As they were driving out they saw the respondent. The complainant asked Mr Sproule to stop so that he could take a photo of the respondent to enable him to be identified.
(p)
When the complainant got out of the car the respondent made rude hand gestures at them and told them to 'Get fucked' several times.
(q)
The respondent walked to a car and appeared to look at his key to enter it. As the complainant and Mr Sproule kept driving they saw the respondent walk to a different car and enter it. The complainant took a photo of the registration number of the respondent's car. That is how EOT were able to determine the identity of the respondent to enable the complainant to pursue his complaint."
| 5 | The Deputy President added to the findings of fact with a number of observations: "In addition to the above findings of fact I also make the following observations: | |||||
|
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(d)
The respondent believed that the complainant was speaking and acting in a disrespectful manner towards Ms A He believed she was being bullied and that he was being a supportive bystander.
(e)
The complainant was deeply affected by the respondent calling him a Nazi, giving a Nazi salute and saying 'Heil Hitler'. He found this conduct to be offensive, intimidating, insulting and ridiculing. He has been subjected to similar behaviour in the past and this conduct evoked upsetting memories of these past events.
(f) The actions of the respondent were because of the complainant's German race. (g)
The respondent was frustrated by the situation with the lift and he did not like the tone that the complainant used when asserting to him and Ms A that only two people were allowed in the lift in order to comply with COVID restrictions. The respondent was concerned about Ms A having to wait for a long period to access the lift due to her pregnancy. However, neither frustration nor anger gave the respondent the right to call the complainant a Nazi and say 'Heil Hitler' whilst directing a Nazi salute at him."
Grounds of appeal
6 The appellant sought orders setting aside the order of the Deputy President and listing the matter for a fresh hearing before another member of the Tribunal. The grounds of appeal were as follows:
"1 He (appellant) was denied natural justice and/or procedural fairness and the
Tribunal did not act according to equity because:-
(a) He was not allowed to question the Respondent about relevant issues such as: (i) how much of his life had been lived in English speaking countries,
(ii) how many times he has initiated litigation in Australia,
(iii) the details of all such litigation,
(iv) how many times he has claimed to be the victim of discrimination because he is of German background,
(v) his history of conflict with officials, including Police Officers, in Australia,
(vi) his claimed possession of a German accent and the means by which an Australian born citizen would be able to differentiate that from any other European accent, and
(vii) the basis of his entitlement to remain in Australia, as he is no longer a student, and
(b) A Mr Sproule was allowed to give disputed evidence by a telephone from Hobart. 2 The Deputy President failed to act according to equity, good conscience and/or the merits of the case as evidenced by the facts that:-
(a)
She found that the Respondent and Mr Sproule entered the lift in the basement Woolworths area whereas the evidence of both the Respondent and the Complainant was that the Respondent travelled to the ground floor to get the lift whereupon the Respondent took it to
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the basement floor, returning shortly therafter. The Tribunal member specifically saying to the respondent 'you commandeered the lift' (or words very similar).
(b)
She incorrectly interpreted the evidence to find that the Appellant had indicated that a woman she called "Ms A" "must" enter the lift. There was no such evidence. It would be quite illogical to say that a pregnant woman "must" enter a lift at a particular moment.
(c)
She ignored the undisputed evidence that "Ms A" was a woman of apparent South Asian origin with a male companion of like apparent heritage.
(d)
She ignored the undisputed fact that after the Respondent spoke to this woman as to the 2 person rule, the Appellant then said words to the effect "well why don't you get out then and let this pregnant woman in".
(e)
She ignored the fact that this woman was completely unknown to the Appellant and that her finding 0) would seem to have the likely consequence that the pregnant woman would travel in the lift without her male companion.
(f)
She made a finding, 6 (f), that the Appellants actions were because of the Respondents German race. In fact Commissioner Sarah Bolt had ruled on 19/07/2021 that there would be no breach unless the Respondent's race was the reason for the Appellant's conduct and 'whether or not he would have engaged in the same conduct toward someone displaying the same behaviour but of a different race' but, in her clause 6 (f) Ms Clues:
(i)
Gave no reasons as to how and why the Appellant could have known, let alone did know, that the Respondent was of German origin, and
(ii)
Does not suggest that she or anybody hearing him at the Tribunal could tell that the Respondent was German."
Ground 1 – evidentiary rulings
7 By way of background to the evidentiary rulings, the Deputy President was in possession of a file containing the respondent's complaint and the appellant's written response to that complaint. The essence of the complaint is found in the following passages:
"Please tell us what happened, where it happened and when it happened: When picking up donated food from Woolworths together with a volunteer for the charity I run today, at around 11:30am I was abused by an elderly man in the Wellington Shopping centre for abiding Covid-regulation limits for the lifts. When I pointed him to the signs outside the lift stipulating a maximum occupancy of the lifts of 2 (which was already reached), he started shouting at me. When I told him to remove his arms from the door so the lift could close and pointed him again to the sign, he removed his arms, lifted his arm to the 'Hitler greeting' towards me and shouted very loudly 'Heil Hitler'. The volunteer who was in the lift with me can confirm this. There were also at least 5 other people present outside of the lift, so there is no reason this was in public. There is a possibility that cameras in the shopping centre and the lift camera caught part or all of this incident. When we drove out of the garage, the person who abused me was walking to his car. We stopped the car and I got out to take a picture of him. When he noticed this, the man further shouted at me, further abused me, and insulted me and told me to 'fuck off', raising his hands and fingers (see picture), and then pretended to go to a car that was not his own, probably to mislead me all the while yelling at me (again the volunteer was in the car and confirm this). After taking a few pictures we drove around the corner in the car park but as both the volunteer and I
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suspected the man tried to mislead us by going to a car he does not own, I got out again and walked back. I saw the man get into his car, and turn it on. I then took another picture of this car with the number plate so that police or you can identify him (see picture with the white car with the backlight lit up). Being German and clearly having an accent the Hitler greeting (both the arm raise, and the exclamation), deeply upset me. ln my country doing this is actually considered a serious crime and the punishment for this is imprisonment. I tried to report this to Tasmania Police but they refused to take a report and instead gave me a leaflet of EOT. I then called the AFP who stated that Tasmania Police should at least have taken a report. The volunteer's name is Brendon Sproule and his phone number is …
…
How have you been affected?: Being of German origin, I am deeply affected by being called a Nazi, the Hitler greetings and salute. It is very offensive, deeply hurtful, and insulting, especially since I have been very active in promoting multi- diversity, openness, and equality for all people since I was a teenager. It really upset me to face this kind of racism and discrimination, especially in public. Furthermore, I am really upset about the fact that none of the either people said or did anything about this man and his behaviour. As a result, I am not only feeling upset but also less safe now in Hobart and Australia as this incident has shown to me that apparently such behaviour is tolerated and condoned in Australia. I am afraid that there will be more racial abuse and nobody will step in and do anything about it. As I pick up the food with volunteers on a daily basis, I am also concerned I might run into this man again and then have to face further abuse. I am very concerned and worried that this man believes this behaviour is okay and normal."
8 The appellant's response was as follows:
"Mr Seidenspinner is to be complimented on his charity work.
That, however, gave him no right to engage in the loud haranguing of 2 couples of Indian sub continent origin waiting near the lift in question, the apparent screaming of Orders to them & the later larrikin - like threats to me made by he & his driver.
He makes no mention of these incidents & his account of events is not honest and accurate.
This proceeding should give him a chance to see his actions in a virtual mirror & ensure that he does not repeat them. There are many other citizens who would do as I did & follow the Commonwealth Government's advertised request to 'unmute' if 'you see disrespect'.
I arrived at the lift in no hurry, carrying nothing, and perfectly happy to walk the 1 floor to my car if necessary. Near the lift was a pregnant Indian woman with partner. Shortly to their right (as you face the lift) was another Indian couple with a baby in a pram. I expect that they were all holders of the Visa that allows them to reside outside major cities with the need to regularly advise of their work & residency meaning that they were relatively new to Hobart & keen to avoid any problems.
Mr Seidenspinner was partly inside a lift with an open door & directing words to the couples. Initially I took no part but when he shouted at the woman 'only 2 people can go in this lift', I said words to the effect 'well why don't you get out & let this pregnant woman get in'. There was no reply & the lift left with him inside.
Very soon after it re-appeared with him in it along with a man with a trolley full of goods. He partially came out of the lift. I am unsure if the Indians said anything but they may have moved slightly toward the lift. Mr Seidenspinner then screamed at them words to the effect 'you cannot use this lift, there are too many people waiting downstairs'. I then for the first time ever gave a Nazi sa!ute which seemed to me at the time to fit his actions. ! was never dose to the lift & certainly did not have my arms in the door. The lift then left.
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The Indians with the baby then left after the father patted me on the arm and thanked me. The pregnant lady & partner left in the next lift, also thanking me.
I assume that Mr Seidensplnner had been waiting at the basement door in Woolworths & became frustrated that only 1 lift was working and finding that lift coming full from the ground floor, & that as a consequence he went up on the escalator to commandeer the lift, arriving before I arrived.
Within 2 minutes I went down in the lift. A lady, the only person waiting, shared the lift up with me. A few minutes later whilst looking for my car, a vehicle pulled up with the driver shouting & waving his fist at me out the window. The passenger then got out & started taking photos whilst shouting.
I turned around & waved 5-6 times. The conduct continued from both men who struck me as like the hicks who invaded the US Capitol. I thought actual violence likely. I then put 2 fingers up a few times & said 'get fucked'. There was certainly no 'further [or previous] shouting, abuse & insulting'.
I had no idea of his heritage & certainly did not intend any anti-German action.
In my opinion today's Germans can be proud of their country. Unlike Australia, they did not engage in invasions of Vietnam or Iraq with the consequences of millions of deaths & multi-millions of refugees. Nor did they support the UK's invasion of Egypt.
Helmet Kohl played a key part in the end of the Cold War. Germany plays a key part in a united, peaceful, Europe; magnanimously took a million refugees & kept Democracy's and the free world's light shining during the Trump era.
I don't appreciate the word 'elderly'. Ageism is serious discrimination."
9 Armed with this information, the Deputy President heard evidence from both the respondent and the appellant. The respondent said he and Mr Sproule were in the lift with two trolleys and were travelling from the basement to an upper level car park. On the way up the lift stopped at the ground level. The respondent gave the following evidence as to the subsequent events:
"There were several people waiting there who wanted to come in. I factually informed them that there are two people in the lift that they can't come in, and pointed them to the government sign that was pointed outside the lifts by the Tasmanian Government, saying two people in a lift, or one family. At that point, Mr Jacobs stepped in, being already quite loud and, I don't know, for lack of a better word, you know, in a, in a boisterous booming language, was getting upset that I had said that no one can come in, and followed the government advice.
In particular, he was concerned about an Indian pregnant woman that was standing there, and said, 'Oh well, she should come in, because she's pregnant,' to which I then replied that, 'If she's pregnant, that's even more reason not to take any risks with COVID, and to follow the guidelines.' Mr Jacobs then - thank you - put his arm in front of the lift, so the lift door couldn't close, and called me a Nazi. After I've told him that that was very upsetting, especially where I come from, that that is actually a crime, he then proceeded to do the Hitler greeting, raised his arm, and said 'Heil Hitler' to me, which I - made me completely speechless, and I think Mr Sproule as well.
I told him to remove his arm. He finally did. The lift proceeded upwards. We get out, packed the car, and started driving down the ramp, at which Mr Sproule noticed Mr Jacobs walking to his car. We stopped alongside him, because I wanted to take a picture of him to make a complaint. Upon seeing me, he immediately became very aggressive, shouted at me, was very confrontative (sic), and raised his fingers several times."
10 The respondent gave evidence that in the car park the appellant said "get fucked" several times, walked towards a car and pretended to be about to get into the car. As the respondent drove
7 No 62/2022
away he became aware that the appellant walked to a different car. The respondent took another
picture to establish the registration of a vehicle apparently being used by the appellant.11 As to the impact of the appellant's conduct, the respondent spoke about his personal history, and explained why the appellant's conduct was particularly confronting for him. The evidence included previous incidents which is unnecessary to discuss.
12 During cross-examination the respondent said he waited approximately 15 minutes for a lift. Eventually he went to the ground floor where he got into the lift and took it to the basement. He agreed he was "exasperated" about the behaviour of people on the ground floor with regard to the lift. This included concern about the number of people getting into the lift jeopardising the health and safety of everyone in the lift.
13 The cross-examination concerning the events involving the appellant was quite detailed and it is unnecessary to canvass it. Eventually the cross-examination turned to the respondent's ethnic background and different accent. As to the extent of the conversation between the respondent and appellant from which the appellant might have gained the impression, by reason of a German accent, that the respondent was German, the following evidence was given:
"MR JACOBS: (Resuming) Tell me, please, what words you've said in my hearing - what did you say that enabled me to say that, 'I know that man is a German because he's got a German accent.' What were the total words you spoke? ......Well, talked
that, and after you called me a Nazi, I told you how upsetting it was.
I'm not going ?......So clearly - clearly you knew that that was an offensive -
You agree, do you not, that you spoke words to this woman that led to me making a comment? ......I didn't speak words to the woman, I said this in general I pointed to the sign.
All right, what words did you say? ......I said 'There can only be two people in this lift, look at the sign that's posted outside by the Tasmanian Government.' And then when you intervened about the pregnancy, then I said "Well, if she is pregnant then that's even more reason for her not to jeopardise her baby and risk infection with COVID and follow the rules." That's exactly -
That's the total you claim? ......Well, that's what I remember because you know you speak a lot of things during the day and obviously the remarkable things, bad - good or bad stick out."
14 During further cross-examination as to picking the difference between German and Belgian accents, the appellant asked whether the average person in Hobart could pick the difference between accents. The respondent gave the following evidence:
"Well, does the average person in Hobart know that? Yes.
How do they know it? ......Because they do, obviously, from my experience in first running a psychiatry clinic and then running allied health clinic with a specialist shoe shop, that - everybody who came in who I talked to in the first minute would ask me where I'm from in Germany - everybody, not Austria, not Belgium, not the Netherlands, not anywhere.
So you think most people in Hobart could differentiate a German speaking English to a Dutchman, a Belgian".
15 While conducting cross-examination, the appellant informed the Deputy President that he did not have "the faintness idea" of the respondent's background. The cross-examination then moved to
8 No 62/2022
countries in which the respondent had lived, but the respondent maintained he still had the German
accent which people regularly recognised.16 Ground 1(a)(i) complained that the appellant was not permitted to question the respondent concerning how much of his life had been lived in English speaking countries. The respondent gave evidence that he had lived in the United States of America, but the Deputy President disallowed a question as to how long the respondent had lived in that country because it was not relevant. The respondent gave evidence that he trained and studied in England. Notwithstanding the earlier ruling, the respondent agreed with a suggestion that he lived in America for over a year and England for over two years. He added that then he lived back in Germany for several years.
17 The appellant asked the respondent whether he was "involved in working in a law firm in general London area". The Deputy President disallowed the question, observing that "the point you are making is that you don't believe he sounds German. I understand that point.".
18 Although the Deputy President disallowed a number of questions concerning times during which the respondent resided in countries other than Germany, as mentioned, ultimately it emerged in the respondent's evidence that he had lived in America for over a year and in England for over two years. In addition, the respondent gave evidence that he had been residing in Australia since 2011.
19 There is no substance in the complaint that the Deputy President denied the appellant natural justice or procedural fairness because the appellant was not permitted to question the respondent about how much of his life had been lived in English speaking countries. Despite the ruling, the essential evidence in this respect emerged during cross-examination. In addition, the Deputy President was aware that the respondent held a doctorate.
20 Having being told to move on from the line of questioning concerning countries in which the respondent had resided, the appellant turned to the issue of the respondent having being involved in disputes with other people:
"MR JACOBS: (Resuming) Well, the places you've lived have been associated with
you being involved in disputes with other people, have they not?......Excuse me?The places where you have lived overseas, in Australia and the United Kingdom and in the USA, have been all involved with you being in disputes with other people?
DEPUTY PRESIDENT: That's not relevant. I'm not taking prior -
WITNESS: (indistinct words)
DEPUTY PRESIDENT: Okay, anyway, I'm ruling. If we're going to be determining this matter, you should know we 're determining this matter on its facts. Relevant prior convictions or relevant, not relevant.
MR JACOBS: Well, have you been involved in any other anti- discrimination procedures?
DEPUTY PRESIDENT: Not relevant. That's why we have different chairpeople sitting on different things.
MR JACOBS: Well, with respect, Chairman, the matter that I want to put to him involves him being virtually a vexatious litigant who's argued somewhat similar issues before.
DEPUTY PRESIDENT: Or it could be that people are mean or racist.
MR JACOBS: People are?9 No 62/2022
DEPUTY PRESIDENT: People are racist, it could be.
MR JACOBS: Well, did you you used to study, did you not, at the Queensland
University of Technology? You there received your doctorate?
DEPUTY PRESIDENT: If you're going to question him about prior complaints -
MR JACOBS: Yes.
DEPUTY PRESIDENT: Okay. I'm not going - it's notrelevant.
MR JACOBS: Well, I submit - with respect, I submit it is. I just -
DEPUTY PRESIDENT: It's up to this tribunal to determine whether Dr Seidenspinner is a vexatious litigant. There would be an application made by the registrar of this tribunal. It's not for you -
WITNESS: Apart from the fact, what he's referring to, that was settled because (indistinct words) was guilty and (indistinct words) settled out of court. What you found on the internet is merely an application for legal representation. No more. It does not tell you -
DEPUTY PRESIDENT: You don't have to answer this question.
MR JACOBS: Well, with respect, I submit that I'm entitled to pursue the character of this person.
DEPUTY PRESIDENT: Well, how is his character in evidence about prior matters?
MR JACOBS: Well -
DEPUTY PRESIDENT: How is this person's character relevant to what occurred on that date? That's what I'm looking at - the behaviour on that date. Is that behaviour in breach of the Anti-Discrimination Act?
MR JACOBS: Right. I'd like to ask a question - perhaps he could hesitate - to get your ruling before he answers.
DEPUTY PRESIDENT: All right. That's fine.
MR JACOBS: Is it you dispute that you claimed against the Queensland University of Technology Law School that you'd been discriminated against because you were a German?
DEPUTY PRESIDENT: I have said I don't care about previous complaints. He is not a vexatious litigant in this tribunal. The fact that he might have been discriminated against in the past or that he might have alleged he was discriminated against in the past isn't relevant to the behaviour, the incident that occurred on this date.
MR JACOBS: Well, he - with respect, his complaint is that he was singled out for being a German.
WITNESS: Your Honour -
MR JACOBS: And he's gone in great detail in his written application about (indistinct words) of how it affects things in Australia. I'm suggesting to him he's specifically claimed in the past before the Queensland tribunal that he was discriminated against because he was a German.
DEPUTY PRESIDENT: And how is it relevant? So, no, it's -
MR JACOBS: (indistinct words) You might pause before you answer again. Did you allege that you were discriminated against because you were a white male?
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DEPUTY PRESIDENT: It doesn't matter what has happened in the past. I'm not going to say it again. So no more questions about what happened in Queensland or what happened - no.
WITNESS: No - it might - sorry, your Honour. It might be helpful if you explain to
Mr Jacobs that a case that was - what -DEPUTY PRESIDENT: Don't tell me how to explain things. Thank you. No more questions about past. I don't care. I'm looking at what happened at the Wellington Court on that day. I have to determine whether that behaviour was in breach of the Act.
MR JACOBS: Right. Well, I won't - I will get my point on the record at least in some further proceedings.
DEPUTY PRESIDENT: Absolutely .
MR JACOBS: And I just note, in my submission, that I'd suggested it is very relevant as to his character if he has in the past made the allegation that I've suggested.
DEPUTY PRESIDENT: He's not made any previous allegations against you.
MR JACOBS: I have one further question which you -
DEPUTY PRESIDENT: If this is about his past, don't do it.
MR JACOBS: I want to ask a question if it's - well, I suggest you were involved in extensive litigation with Queensland Police, particularly in respect of (indistinct word)
DEPUTY PRESIDENT: I have ruled.
MR JACOBS: All right. Ma'am, we might have this at some appeals tribunal.
DEPUTY PRESIDENT: Yes. I have ruled that there is nothing that I want to hear about past behaviour.
MR JACOBS: (Resuming) How did Tasmania have the benefit of your presence?
......Well, after - like - like, he wants to know why I came to Tasmania? Is that
relevant? Is that something - I mean -DEPUTY PRESIDENT: The objection is that's not relevant. You'll have to explain to me why Dr Seidenspinner living in Tasmania is relevant to what happened in the Wellington Centre on that day.
MR JACOBS: Well, I ask again this question. It may be ruled irrelevant. (Resuming) I suggest you were paid - your fare to Tasmania was provided by then friend, Professor Wilson, a psychiatrist. He later had major concerns about your psychiatric condition and your litigation with -
DEPUTY PRESIDENT: Irrelevant. Are you saying that he can't give evidence, that he hasn't got capacity to give evidence?
WITNESS: Well, if he thinks - he says I'm mentally ill, then you have abused a vulnerable person, which makes you actually even worse. Mr Jacobs, do you really want to go down that road?
MR JACOBS: You've made complaints about people to the Law Society of
Queensland?
DEPUTY PRESIDENT: Oh, look, stop.
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MR JACOBS: So I'm not allowed to ask anything showing the character that leads to us being here today?
DEPUTY PRESIDENT: You can look at what happened in the Wellington Centre on that date. That's what you can look at.
MR JACOBS: Well -
WITNESS: We'll be here for three weeks.
DEPUTY PRESIDENT: And I don't need the side comments, okay?
MR JACOBS: (Resuming) I'll ask one more question which I may not be allowed to pursue. Isn't it a fact that you boasted that you can make a living out of small amounts you get by launching litigation against people? No.
DEPUTY PRESIDENT: Okay. Denied.
MR JACOBS: What is your source of income in Tasmania?
DEPUTY PRESIDENT: Irrelevant.
MR JACOBS: On what visa are you currently in Australia?
DEPUTY PRESIDENT: Irrelevant."
21 Later in cross-examination, the appellant returned to the topic of previous cases in which the respondent had made complaints of discrimination:
"MR JACOBS: (Resuming) So 10 years in Australia, this is the first time it happened
and you say - do you say - ?......The first time it happened, I just told you that.
In public? ......Yeah, of course.
What did you do on those occasions? ......One is pending here. The other one, as you refer to in Queensland, but see this is the point, you're making - you are trying to establish that I didn't do anything, and when I'm doing something, you're trying to use that against me to say I'm a vexatious litigant. So on one hand you're saying - I'm singling you out, I assume that's what your point is, and then on the other hand you 're trying to use when I do defend myself and take experience to the attention of judicial authorities you're using that now, or trying to use this against me by saying I'm a vexatious litigant.
Well, I suggest you've been involved in litigation at least half a dozen times I Australia, and made complaints to members of parliament, and none of those have been about being accused of being a Nazi? No.
DEPUTY PRESIDENT: He's answered the question. There's been two other incidents in Australia about race. We've got that. One is pending and one was in Queensland.
MR JACOBS: (Resuming) And he's made many other complaints, at least half a dozen complaints, to courts and tribunals in this country? ......The tribunal member has already ruled about the past.
DEPUTY PRESIDENT: We're just talking - he's answered these questions about how
- I allowed the question, because he says:'I am not only feeling upset but also less safe now in Hobart and Australia, as this incident has shown to me that apparently such behaviour is tolerated and condoned in Australia.'
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You've asked him the question as to how long he'd been here, 2011, and in that time two other incidents have happened."
22 A significant quantity of the remaining cross-examination called for speculation by the witness and answers which would not have been of benefit to the Deputy President. Many of the questions sought answers that were plainly irrelevant. Although the Deputy President disallowed a number of questions, she gave the appellant far more latitude than was necessary.
23 In respect of the appellant's complaint that he was denied natural justice or procedural fairness because he was not permitted to question the respondent about previous litigation initiated by the respondent in Australia, how many times he claimed to have been the victim of discrimination and his history of conflict with officials in Australia, the rulings of the Deputy President were correct. The evidence which the appellant sought to elicit was, on the material available to the Deputy President, irrelevant to the critical issues.
24 Similarly, the Deputy President correctly declined to permit the appellant to question the respondent as to the basis of his entitlement to remain in Australia.
25 Ground 1(a)(vi) was a complaint that the Deputy President erred in declining to permit the appellant to question the respondent concerning his "claimed possession of a German accent and the means by which an Australian born citizen would be able to differentiate that from any other European accent". This was a topic raised by the appellant during cross-examination and it led, in substance, to a "debate" between the appellant and the respondent. Considerable "debate" was permitted, but to the extent that the Deputy President curtailed the questioning, she was correct. It was for the Deputy President to form a view about that matter having heard the respondent at some length. The approach of the appellant in his questioning of the respondent in this regard was misconceived.
26 The respondent called a witness, Mr Brendan Sproule, who was in the lift with the respondent and also in the car later in the car park. There was no substance in the appellant's complaint that Mr Sproule was allowed to give his evidence by telephone. When it became apparent it was intended that Mr Sproule give evidence by telephone, the appellant, an experienced former prosecutor in the Office of the Director of Public Prosecutions, did not object. The appellant remained silent.
27 In essence, Mr Sproule said that when the lift stopped at the ground level "there was a heap of people outside the lift waiting to go up", including the appellant. Mr Sproule's evidence continued:
"He wanted to enter the lift and jump in between us and (indistinct words) there and because we now the rules and regulations of it, it's only two people per lift, we tried to enforce that. But unfortunately, Mr - Mr Jacobs wasn't very happy about that and the - he started turning - well, he actually turned around and said 'There's a woman there with a pram and surely she's got to get in the lift to get there' and once again, Tim pointed it out that the rules were two per people (sic) and because the woman was pregnant she shouldn't be in the lift anyway. So with that we were just about to go ahead again and Mr Jacobs tried to put his hands in front of the lift door to stop it from going because - which it wouldn't, so Tim asked to remove his hand again, and once he got outside the lift again he suddenly just put his hand up in the air and screamed - screamed out that he was - he was a Nazi, and 'heil Hitler', and I can't imagine how Tim was feeling but I wasn't very happy about the whole thing myself, especially with all the people there around me, you know. But anyway, we got up to the next floor where the car was and we loaded all this stuff into the car and then we were driving out down past the - well, not down past going out on the levels and I happened to see the gentleman in - we were talking about again, going into his car or what we thought his car was, and anyway as we just got down to near the corner he went from one car to another car. And then Tim got out and took a picture of Mr Jacobs entering the other car and even then he was swearing and shouting about him, and I don't really want to say the words, but, you know, they were very, very rude words starting with F, and all that type of stuff, but, you know, he just didn't seem to,
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you know – just didn't seem to want to stop. So eventually Tim got a picture of him
and we just went and kept going where we normally we do."
28 Asked by the respondent whether he, the respondent, had behaved in any way aggressively, and in what manner he spoke to the appellant, Mr Sproule answered "oh yeah, well, surprisingly, Tim, you was cool, calm and collected all the time". Mr Sproule said the respondent did not shout at the appellant or behave aggressively. It was the appellant who was "offensive all the time". However, the Deputy President found that when the respondent advised Ms A of the COVID restriction, his tone was "aggressive and forceful".
29 During cross-examination Mr Sproule denied he had given evidence in accord with what the respondent had told him to say. His answers in cross-examination were consistent and to the point. The appellant's attempts to make mileage out of minor inconsistencies failed. When the appellant put to Mr Sproule the suggestion that the word "Nazi" was never used, his answer was plainly truthful:
"MR JACOBS: (Resuming) I suggest the word 'Nazi' was never used?......Oh, oh I'm very sorry to say this, no, but that is something that will never ever go from my mind. I can see you in the picture there standing back, you said 'heil Hitler' with your hands in the air, and, 'You're a Nazi,' that-look-
I suggest I did say 'heil Hitler' with my hand up but I never said - made a reference to
'Nazi'?......You did, I'm sorry, because that was the first thing you said."
30 The appellant gave evidence. He said he was waiting for the lift and was is no particular hurry. He could readily have walked up the stairs. The essence of the appellant's evidence as to the events at the lift was as follows:
"The lift was already there open with the doctor partly in, I think, and partly out of the door, and I heard him yell at this pregnant Indian woman words to the effect, not the exact words, "Only two people can go in this lift,' and it was said very loudly, and my hearing is not good, and things that are said in the distance, I often have them repeated. I heard very clearly what he said, it was only those words, I didn't pick up any particular accent.
And thinking that I should do something or say something to speak up, I said, 'Well, why don't you get out of this lift and let this pregnant woman get in then'. He didn't reply, and the lift left with him inside it. The reason I made that comment then was in small part because of the Australian government advertising to speak up when you see disrespect, but it was more so that if I hadn't done so, my late parents certainly would have been disgusted with me.
I was brought up in a family to help other people, you stand up for people, speak up if need be, and I would have personally felt disgusted with myself if I hadn't said something, and I thought you only have a split second to think but I was saying something that was fairly neutral, I was passing on a message that if this is important let this pregnant woman in.
There was no - there was nothing. I never saw inside the right hand side of the lift, I was standing to the left as you look at the - so to the right as you look at the lifts and left from inside, I never saw the - the corner of the lift nearest Argyle Street. But the lift left very quickly after I said those words. As far as I'm concerned, that was the end of the matter."
31 The appellant then explained his rationale for speaking up, and said the lift returned following which the relevant incident occurred:
"But very soon after, the lift appeared with him in it along with a man and the trolley full of goods, that was Mr Sproule who was on the left side of the lift as I looked at it.
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I again couldn't see - I didn't see a second trolley of groceries there. I don't say there wasn't one, but I definitely didn't see it from where I was. The door partly blocked it. I repeat my claim that I never went - never moved forward. I was never within two metres of the lift. I would have thought it was more likely never within three metres of the lift. This time the - the lift opened up and I didn't see the Indian pregnant woman move, I didn't see her move. She may have moved but if so it was only slightly.
And the doctor then yelled out, shouted out, screamed out, 'You cannot use this lift, there are too many people waiting downstairs'. Now, I thought this was particularly offensive, demeaning for these people, and the immediate thought that came into my mind, reminded me of a - what you'd see portrayed in the movies of a SS officer during the war, 'heil Hitler'. So I did that. I didn't pick up any particular accent.
I would have done the same no matter who the man was doing it, with this exception: if I'd picked up an accent of a country, let's say an American accent, I most probably would have said, 'You're not in America now, mate, we don't carry on like that in Australia.' If I picked up a German accent or an English accent, I would probably would have said the same, something - "We don't do that - we're not in England now," and so forth. I didn't use bad language.
But I did achieve my aim because the lift left immediately with him in it, and the harm to these people ended."
32 The appellant then gave evidence that his experience with German people "had been a good one". He gave details of his travels within Germany. He spoke about Angela Merkel and how the German people had not done "the disgusting things" like the invasions of Vietnam and Iraq. The appellant's evidence then turned to the events in the car park:
"Now when I left the - walked up - when I left the lift, I walked to what I thought was my car. I've got an old white Toyota Corona which looks - probably - I think about half cars are white, quite a few Toyotas around. And I - I think I can fairly say that when I go to get in my car at a supermarket, about half the time I initially look at some other car and think that's it. It's not something that's at the foremost in my mind when I go and get it.
When I walked - I was in the car park in - off Bathurst Street last week and got the wrong floor and had a look for my car, nothing unusual, and I can understand why the doctor (indistinct words) suspicious I went to some car but it's nothing unusual for me. And I did have a very bad experience in Bath, UK once when I couldn't find the car for about four hours. Now when - when the car - the vehicle pulled up, Mr Sproule did shake his fist out the window several times. He did yell out something, but I can't remember - I don't think I picked up what he said. But to be quite frank, rather than a German legal doctor and somebody else, I thought they were two country bumpkins from - perhaps being unfair to people from the country from up the Derwent Valley somewhere, that they were both dinky-di Aussies (indistinct words)
DEPUTY PRESIDENT: Careful - be careful.
WITNESS: All right. And that was my impression, they were people in (indistinct words) old vehicle who - I thought there was some chance that there was going to be violence. Anyhow, I waved a few times, and more photographs were taken and, more yelling out was done by the doctor, none of his words I picked up. So I did - yes, I put my fingers up a couple of times and said, 'Go and get fucked.' I think that covers it all.
Yep, but I completely refute - that I did - I did put my hand up. It's not something I've done before and not something I'll do again, but it struck me at that instant, trying to get him to go away and stop harassing these people. That was my instant reaction because that's - he's - he was carrying on. The words, 'You cannot use the lift because there's too many people waiting downstairs,' was a big extension on having said previously, 'You can't come in because there's more than - only two people can go.' He was saying, 'You can't use it.' That's my evidence. Thank you."
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33 During cross-examination the appellant maintained he did not call the respondent a Nazi. He said that hearing the respondent speak during the proceedings he would not have picked him as German; perhaps Dutch. Asked why he did not say "get fucked", the appellant said that the respondent had not spoken to him at the lift and there was "nothing I had personally to complain about". He was then asked why he did not use words other than "Heil Hitler":
"DR SEIDENSPINNER: (Resuming) Why didn't you say, 'Stop bullying those Indians,' or, 'You arsehole. Leave them alone,' or - I apologise for language, but, you know - ?......But I think I'd said politely when I made the reference of, 'Why don't you
get out and let her get in?' That obviously hadn't worked, and I was amazed at the words, 'You cannot use this lift,' and too many people waiting downstairs would seem to me an extremely unreasonable and probably inaccurate statement.
There were, but - ?......Hence - hence, the motion I took – …"
Discussion
34 The Deputy President had more than ample opportunity to see and hear the appellant and the respondent during submissions, evidence and questioning of each other. She directed herself correctly as to the law and made no significant errors of fact. It is correct, as ground 2(a) complained, that the Deputy President spoke of the respondent and Mr Sproule waiting before they could both enter a lift on the basement level with their trolleys. The respondent said he went to the ground level and entered the lift, taking it down to the basement. This was a very minor error of no significance.
35 Ground 2(b) complained that the Deputy President erred in stating that the appellant "indicated that as Ms A was pregnant she must enter the lift". The appellant emphasised the word "must" and contended there was no such evidence. There was no evidence that the appellant used the word "must" in this context, but it was clear from the evidence of the respondent and Mr Sproule that the appellant conveyed forcefully his view that the pregnant woman should be permitted to enter the lift without waiting further. In that sense, the Deputy President was correct that the appellant was conveying the view that the pregnant lady "must" be permitted to enter the lift. This complaint was without substance.
Ground 2(c) was a complaint that, in her reasons, the Deputy President "ignored the undisputed evidence that Ms A was a woman of apparent south Asian origin with a male companion of like apparent heritage." It is correct that the Deputy President did not refer to the ethnic origin of those persons who were waiting at the lift, but there was no occasion for her to do so. Similarly, there was no substance in the complaint that the Deputy President failed to refer to the statement by the appellant to the effect "well why don't you get out then and let this pregnant woman in". There was no obligation on the Deputy President to refer to each and every piece of the conversation that occurred around the open lift door.
37 Likewise, the complaint in Ground 2(e) was of no substance. The issue of the woman being unknown to the appellant, and the likelihood of the woman travelling in the lift without her male companion, were irrelevant to the critical issues concerning the appellant's conduct, including his Nazi salute and spoken words.
38 In addition to the factual issues identified by the appellant in his grounds of appeal, the appellant's written submissions contended that the Deputy President erred:
• In suggesting "both men first entered the lift together". •
In finding, in the absence of evidence that the respondent spoke to the appellant, that the appellant and respondent "both spoke aggressively and forcefully to each other".
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• In "[seeming] to think [the appellant] was with [Ms A]". 39 I have already dealt with the minor error concerning the floor on which the respondent first entered the lift. This error necessarily involved an error concerning both the respondent and Mr Sproule entering the lift together. It is of no consequence.
40 As to whether the respondent said he spoke to the appellant, in his written complaint the respondent asserted that he told the appellant "to remove his arms from the [lift] door". The respondent gave evidence that he spoke to the group of persons waiting for the lift, which included the appellant, and the appellant then spoke loudly to him about the pregnant woman. The respondent replied to the appellant that if the woman was pregnant it was even more reason not to take risks.
41 In addition, the respondent gave evidence that after the appellant called him a Nazi, the respondent "told him that was very upsetting, especially where I come from, that that is actually a crime". The respondent said he then told the appellant to remove his arm.
42 Mr Sproule also gave evidence that the respondent spoke to the appellant in the course of confrontation while the lift was stationary.
43 This complaint was without merit.
44 Similarly without merit was the suggestion that the Deputy President erred in thinking the appellant knew Ms A or that they were together. The passage relied upon by the appellant does not support that suggestion. Nor is there any passage in the reasons of the Deputy President to suggest she erroneously though the appellant knew Ms A.
45 The appellant's final ground of appeal centred on the Deputy President's finding as to the cause of the appellant's conduct. Her specific findings in this regard were as follows:
"[15] The evidence that supports a finding that the complainant's race was the cause of the respondent's conduct is:
• The fact that the complainant is German.
• The respondent's use of language and hand signs, calling the complainant a
Nazi and saying 'Heil Hitler' whilst directing a Nazi salute at him.
…
[18] I find that the complainant's race was the true and real basis for the respondent's conduct towards him. The respondent gave evidence that the complainant reminded him of an 'SS officer' Whilst the respondent's frustration and anger with the complainant may have precipitated the respondent to act in the way he did, what he said and did was because of the complainant's race. I further find that the conduct of the respondent was aggressive, unpleasant and rude and as a result of that conduct the complainant suffered a detriment because it triggered memories of other events in his life where he had been subject to discrimination on the basis of his race.
…
[20] The conduct of the respondent was as stated calling the complainant a Nazi and saying 'Heil Hitler' whilst directing a Nazi salute at him. Contemporary standards of society are such that a reasonable person would anticipate that the respondent's conduct and actions were of such a nature which on any objective basis would cause the complainant to be offended, humiliated or insulted. Whilst other reasons contributed to the respondent's anger and frustration towards the complainant, the complainant's race was the basis for the respondent acting in the manner he did."
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46 The appellant's complaint was that the Deputy President:
• "Gave no reasons as to how and why the appellant could of known, let alone did know, that the respondent was of German origin, and • Does not suggest that she or anybody hearing him at the Tribunal could tell that the respondent was German." 47 The Deputy President did not make any finding concerning the respondent's accent. However, bearing in mind the "debate" and submissions concerning the accent, she could not have overlooked that issue. Rather than relying on a subjective assessment of the accent, the Deputy President made a finding that was open to her from the proven facts.
48 While the Deputy President referred to the fact that the respondent is German, and to the appellant calling the respondent a Nazi, coupled with saying "Heil Hitler" while directing the Nazi salute at the respondent, the following facts also tended to support the Deputy President's conclusion:
• In evidence the respondent said that after the appellant called him a Nazi, the respondent "told him that that was very upsetting, especially where I come from, that that is actually a crime", and the appellant "then proceeded" to raise his arm in the Nazi salute while saying "Heil Hitler". During cross-examination the respondent said that after the appellant called him a Nazi, he told the appellant "how upsetting it was". • The appellant stated that this was the first time he had used the Nazi salute in this way. • The appellant said the respondent reminded him of an SS Officer as portrayed in the movies. • In evidence the appellant indirectly acknowledged that the respondent spoke with an accent. He said that hearing the respondent speaking during the proceedings he would not have picked he was of German origin; "I may have gone and picked Dutch". • The answer given by the appellant during cross-examination as to why he did not use words other than "Heil Hitler" was less than impressive. • The appellant falsely denied in evidence calling the respondent a Nazi. 49 The combination of proven facts supported the finding of the Deputy President that the respondent's German heritage was the cause of the appellant's offensive words and actions. It was not a coincidence that the person who the appellant called a Nazi, and to whom the appellant directed the Nazi salute saying "Heil Hitler", was of German heritage.
50 For these reasons I dismissed the appeal.
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