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Lamb v Campbell

Lamb v Campbell

Case [2021] NSWCATAD 103 28 April 2021

Racial Discrimination

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lamb v Campbell [2021] NSWCATAD 103
Hearing dates: 29 October 2020
Date of orders: 28 April 2021
Decision date: 28 April 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Easton, Senior Member
Dr M K Murray, General Member
Decision:
(1) The complaint of unlawful racial vilification is substantiated.
(2) Pursuant to s 108(2)(a) of the AD Act, the Respondent is to pay to the Applicant the sum of $2,250 as damages for the harm caused to him within four weeks of the publication of this decision.
(3) Pursuant to s 108(2)(c) of the AD Act, the Respondent is to publish a public statement in the Manning River Times within two months of the date of this decision in the main section of the publication, not the classifieds in the following terms:
“Racial Vilification
On 18 April 2020 in Taree I said things to Mr William “Billie” Lamb who is a Wiradjuri man of the Dubbo clan. The NSW Civil and Administrative Tribunal found that I breached the Anti-Discrimination Act 1977 by vilifying Mr Lamb on the grounds of his race. The Tribunal found that my statements were vile, racist and homophobic and that Mr Lamb did nothing to invite or deserve the treatment he received.
Public acts that incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group are unlawful under the Anti-Discrimination Act 1977.
Wayne Campbell
Taree
(4) Pursuant to s 108(7) of the AD Act, if the Respondent does not comply with Order 3 above within the time specified, the Respondent must pay further damages of $2,250 within three months of the date of this decision.
(5) Liberty to apply in relation to the terms of the apology and its publication within seven days.

Catchwords:
RACIAL VILIFICATION

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
Comensoli v Passas [2019] NSWCATAD 155
Jones v Scully [2002] FCA 1080; 120 FCR 243
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Margan v Manias [2013] NSWADT 177
Margan v Manias [2015] NSWCA 388
Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223
Sunol v Collier and Anor (No 2) [2012] NSWCA 44
Wotton v State of Queensland (No 5) [2016] FCA 1457, (2016) 352 ALR 146

Texts Cited:
Nil

Category: Principal judgment
Parties: William “Billy” Lamb (Applicant)
Wayne Campbell (Respondent)
Representation: Applicant (Self-Represented)
Respondent (Self-Represented)

File Number(s): 2020/00232702
Publication restriction: Nil

REASONS FOR DECISION

On 18 April 2020 Mr Wayne Campbell delivered an unprovoked verbal assault upon an Aboriginal man, Mr William ‘Billy’ Lamb. Mr Campbell had never met Mr Lamb before that day and he would have known almost nothing about him except the colour of his skin.
The words used by Mr Campbell were vile, racist and homophobic. Mr Lamb did…

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 Lamb v Campbell

Details

AGLC: Lamb v Campbell [2021] NSWCATAD 103
Case: [2021] NSWCATAD 103
Decision Date: 28 April 2021

CaseChat Overview and Summary

The applicant, William "Billie" Lamb, brought a complaint against the respondent, Wayne Campbell, under the Anti-Discrimination Act 1977, alleging that Campbell had engaged in racial vilification against him. The case was heard by the NSW Civil and Administrative Tribunal, which found in favour of the applicant. Campbell, a resident of Taree, had made a series of derogatory remarks towards Lamb, a Wiradjuri man of the Dubbo clan, on the grounds of his race. The tribunal substantiated the complaint and determined that Campbell's remarks were vile, racist, and homophobic, and that Lamb had not in any way invited or deserved the treatment he received.

The legal issues before the tribunal included whether Campbell's conduct constituted racial vilification under the Anti-Discrimination Act 1977, and if so, what remedies should be imposed. The tribunal held that the conduct of the respondent did indeed constitute racial vilification, as it incited hatred towards, serious contempt for, or severe ridicule of a person on the grounds of their race. Given the seriousness of the breach, the tribunal ordered Campbell to pay Lamb damages of $2,250 and to publish a public statement in the Manning River Times acknowledging the racial vilification. The tribunal also provided for additional damages if Campbell failed to comply with the publication requirement.

The tribunal found that Campbell's public acts were unlawful under the Anti-Discrimination Act 1977, as they incited hatred towards, serious contempt for, or severe ridicule of a person on the grounds of their race. The tribunal ordered Campbell to pay Lamb damages of $2,250 within four weeks of the decision's publication. Additionally, Campbell was required to publish a public statement in the Manning River Times within two months of the decision, acknowledging the racial vilification. The tribunal also stipulated that if Campbell failed to comply with the publication requirement, he would be liable to pay further damages of $2,250 within three months of the decision's publication. Finally, the tribunal granted liberty to apply in relation to the terms of the apology and its publication within seven days.

Orders

Orders of the court

(1) The complaint of unlawful racial vilification is substantiated.

(2) Pursuant to s 108(2)(a) of the AD Act, the Respondent is to pay to the Applicant the sum of $2,250 as damages for the harm caused to him within four weeks of the publication of this decision.

(3) Pursuant to s 108(2)(c) of the AD Act, the Respondent is to publish a public statement in the Manning River Times within two months of the date of this decision in the main section of the publication, not the classifieds in the following terms:

“Racial Vilification

On 18 April 2020 in Taree I said things to Mr William “Billie” Lamb who is a Wiradjuri man of the Dubbo clan. The NSW Civil and Administrative Tribunal found that I breached the Anti-Discrimination Act 1977 by vilifying Mr Lamb on the grounds of his race. The Tribunal found that my statements were vile, racist and homophobic and that Mr Lamb did nothing to invite or deserve the treatment he received.

Public acts that incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group are unlawful under the Anti-Discrimination Act 1977.

Wayne Campbell

Taree

(4) Pursuant to s 108(7) of the AD Act, if the Respondent does not comply with Order 3 above within the time specified, the Respondent must pay further damages of $2,250 within three months of the date of this decision.

(5) Liberty to apply in relation to the terms of the apology and its publication within seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Lamb v Campbell [2021] NSWCATAD 103

Most Recent Citation

Valkyrie and Hill v Shelton [2023] QCAT 302

Cases Citing This Decision

Duan v Bridge [2024] NSWCATAD 349
Citation 1 (Para 65)

…In Lamb v Campbell [2021] NSWCATAD 103, the respondent was on private property when he said the words in question. The applicant did not enter the respondent’s property.…
Grass v McIntosh [2024] NSWCATAD 224
Citation 2 (Para 28)

…(c), (d) or (e): see Burns v Sunol [2014] NSWCATAD 2; Burns v Sunol (No 2) [2014] NSWCATAD 44 (Tribunal determining non-compliance); Lamb v Campbell [2021] NSWCATAD 103 and Malenha v Sullivan [2017] NSWCATAD 222; Cohen v Harguos; Karelicki v Harguos (No 2) [2006] NSWADT 275.…
Southey v Butler [2024] NSWCATAD 146
Citation 3 (Para 37)

…This approach has also been adopted by this Tribunal in vilification cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 and Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388, the Cou…
Edwards v Western NSW Local Health District [2024] NSWCATAD 121
Citation 4 (Para 56)

…This approach has also been adopted by this Tribunal in vilification cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79, Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388 the Court o…
Valkyrie and Hill v Shelton [2023] QCAT 302
Citation 5 (Para 3)

…Campbell’s dreadful views’ (although this is described in [41] as an ordinary member of the public in a suburban street) in Lamb v Campbell [2021] NSWCATAD 103 at [40], to an ‘ordinary member of the class to which the public act is directed, taking account of the circumstances in which the conduct occurs’ in Menzies a…
Wolf v Secretary, Department of Education [2023] NSWCATAD 202
Citation 6 (Para 37)

…[43] per Ward JA. A “public act” does not necessarily mean that the conduct or communication took place in a public place. In Lamb v Campbell [2021] NSWCATAD 103 at [22] the Tribunal identified that the proper test is whether the Respondent engaged in a ‘public act’, rather than an ‘act in public’. The Tribunal went o…
Wolf Matthews v Secretary, Department of Education [2022] NSWCATAD 173
Citation 7 (Para 31)

…tment of Education) [2019] NSWCATAD 223 (Riley) on the issue of the meaning of “public act”. As discussed in Riley and in Lamb v Campbell [2021] NSWCATAD 103, whether an act is in public is just one aspect of determining whether something is a ‘public act’ within the meaning of the Act. In Riley the Tribunal found tha…

See all citing cases →

Cases Cited

Riley v State of NSW (Department of Education) [2019] NSWCATAD 223
Citation 1 (Para 20)

…In Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223 ("Riley") the Tribunal considered whether conduct that took place in a school "muster meeting" was a public act. The muster meeting was a meeting held at the start of each school day attended by staff and contractors (Riley at 32). The T…
Comensoli v Passas [2019] NSWCATAD 155
Citation 2 (Para 50)

…However the present matter is comparable to Comensoli v Passas [2019] NSWCATAD 155 viz:…
Burns v Smith [2019] NSWCATAD 56
Citation 3 (Para 47)

…In Burns v Smith [2019] NSWCATAD 56 at [83] to [86] the tribunal said:…
Margan v Taufaao [2017] NSWCATAD 216
Citation 4

…spondent and $15,000 by another arising from homosexual vilification and victimisation, which consisted of a number of incidents. In Margan v Taufaao [2017] NSWCATAD 216 an award of $10,000 was made in relation to homosexual vilification consisting of words and a vicious assault. In Burns v Sunol (No 2) 2018 NSWCATAD…
Margan v Manias [2015] NSWCA 388
Citation 5 (Para 25)

…The incident itself is comparable to an incident described by the Court of Appeal in Margan v Manias [2015] NSWCA 388 (“Margan”) as follows (at [4]):…
Jones v Trad (No 3) [2013] NSWCA 463
Citation 6

…vatism, recognising the high value placed by the common law, and by the legislature, on freedom of expression” ( Jones v Trad [2013] NSWCA 389; (2013) 86 NSWLR 241 at 249 [27]; see also Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Allsop P at [59]). The ordinary meaning of “public act” is an act in publ…
Jones v Trad [2013] NSWCA 389
Citation 7

…oached with conservatism, recognising the high value placed by the common law, and by the legislature, on freedom of expression” ( Jones v Trad [2013] NSWCA 389; (2013) 86 NSWLR 241 at 249 [27]; see also Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Allsop P at [59]). The ordinary meaning of “public a…
Margan v Manias [2013] NSWADT 177
Citation 8 (Para 27)

…In Margan the Tribunal at first instance found Mr Manias’ conduct was unlawful vilification on the grounds of homosexuality (see Margan v Manias [2013] NSWADT 177 at [47]-[54]). This finding was not challenged on appeal and the Court of Appeal assumed the correctness of the original finding.…
Sunol v Collier (No 2) [2013] NSWCA 196
Citation 9 (Para 59)

…e, on freedom of expression” ( Jones v Trad [2013] NSWCA 389; (2013) 86 NSWLR 241 at 249 [27]; see also Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Allsop P at [59]). The ordinary meaning of “public act” is an act in public. The requirement that it be public (for example, a statement in a place open t…
Sunol v Collier (No 2) [2012] NSWCA 44
Citation 10 (Para 31)

…In Sunol v Collier and Anor (No 2) [2012] NSWCA 44 (“Sunol No 2”) the NSW Court of Appeal considered the meaning of “incite” in the homosexuality vilification provisions of the AD Act. The Chief Justice found at [28]:…
Wotton v Queensland [2012] HCA 2
Citation 11 (Para 54)

…In Wotton v State of Queensland (No 5) [2016] FCA 1457, (2016) 352 ALR 146 at [1550]- [1597] Mortimer J provides a comprehensive review of the power to order an apology. Her Honour’s analysis includes:…
Carter v Brown [2010] NSWADT 109
Citation 12

…fication was made as well as an award of $15,000 in relation to racial discrimination. These awards were not disturbed upon appeal. In Carter v Brown [2010] NSWADT 109 orders was made for compensation of $20,000 by one Respondent and $15,000 by another arising from homosexual vilification and victimisation, which co…
Poniatowska v Hickinbotham [2009] FCA 680
Citation 13

…6; 168 FCR 532 without reference to her Honour’s comments regarding an apology. In Poniatowska v Hickinbotham [2009] FCA 680, a sex discrimination case, Mansfield J expanded on the view that an ordered apology might be inappropriate, focusing on whether such an order would go further than was necessary to “recogn…
Forest v Queensland Health [2007] FCA 1236
Citation 14

…es v Scully has also been followed in cases dealing with other types of discrimination. In Forest v Queensland Health [2007] FCA 1236, which dealt with disability discrimination, Collier J expressed the view (at [13]) that “a court-ordered apology serves little purpose”. The Full Court allowed an appeal from her H…
Jones v The Bible Believers' Church [2007] FCA 55
Citation 15

…el the respondent to articulate a sentiment that he plainly enough does not feel”. In Jones v The Bible Believers’ Church [2007] FCA 55, Conti J similarly said (at [65]) that such an order would be “inappropriate”. [1554] All three of those cases dealt with claims of offensive behaviour based on race arising und…
Jones v Toben [2002] FCA 1150
Citation 16

…orce and it has been followed in a number of other decisions of this Court to which the parties did not refer. In Jones v Toben [2002] FCA 1150; 71 ALD 629, Branson J said (at [106]) that “I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not fe…
Jones v Scully [2002] FCA 1080
Citation 17

…1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Comensoli v Passas [2019] NSWCATAD 155 Jones v Scully [2002] FCA 1080; 120 FCR 243 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Margan v Manias [2013] NSWADT 177 Margan v Manias [2015] NSWCA 388 Riley v State of New South Wa…
Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers [2001] NSWADT 32
Citation 18

…in relation to vilification. Since then other cases such as Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers [2001] NSWADT 32 an award of $15,000 for racial vilification was made as well as an award of $15,000 in relation to racial discrimination. These awards were not distu…
Anderson v Thompson [2001] NSWADT 11
Citation 19

…; or, at least, to such a communication not being a “public act”. The applicants also rely upon Anderson v Thompson [2001] NSWADT 11, where the former Administrative Decisions Tribunal found that the shouting of words in a stairwell of an apartment building was a “public act”. The Tribunal members found that the wo…
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Citation 20 (Para 30)

…In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe” and “ridicule”, as defined in the Macquarie Dictionary and Oxford Dictionary:…
[2008] FCAFC 96 [2008] FCAFC 96
Citation 21

…logy serves little purpose”. The Full Court allowed an appeal from her Honour’s decision in Queensland v Forest [2008] FCAFC 96; 168 FCR 532 without reference to her Honour’s comments regarding an apology. In Poniatowska v Hickinbotham [2009] FCA 680, a sex discrimination case, Mansfield J expanded on the view tha…
Wotton v State of Queensland (No 5) [2016] FCA 1457
Citation 22 (Para 54)

…In Wotton v State of Queensland (No 5) [2016] FCA 1457, (2016) 352 ALR 146 at [1550]- [1597] Mortimer J provides a comprehensive review of the power to order an apology. Her Honour’s analysis includes:…
[1998] 1 WLR 968 [1998] 1 WLR 968
Citation 23

…hat, by being excessively low in monetary terms, would tend to trivialise or diminish respect for public policy, as stated in Alexander v Home Office [1998] 1 WLR 968 at 975 and frequently referred to and applied in this Division of NCAT and its predecessor, the Administrative Decision Tribunal. 84. In R v D & E Ma…

Legislation Cited

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 3)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 15)
Defamation Act 2005 (TAS)
1 mention

Medium Neutral Citation:	Lamb v Campbell [2021] NSWCATAD 103
Hearing dates:	29 October 2020
Date of orders:	28 April 2021
Decision date:	28 April 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Easton, Senior Member Dr M K Murray, General Member
Decision:	(1) The complaint of unlawful racial vilification is substantiated. (2) Pursuant to s 108(2)(a) of the AD Act, the Respondent is to pay to the Applicant the sum of $2,250 as damages for the harm caused to him within four weeks of the publication of this decision. (3) Pursuant to s 108(2)(c) of the AD Act, the Respondent is to publish a public statement in the Manning River Times within two months of the date of this decision in the main section of the publication, not the classifieds in the following terms: “Racial Vilification On 18 April 2020 in Taree I said things to Mr William “Billie” Lamb who is a Wiradjuri man of the Dubbo clan. The NSW Civil and Administrative Tribunal found that I breached the Anti-Discrimination Act 1977 by vilifying Mr Lamb on the grounds of his race. The Tribunal found that my statements were vile, racist and homophobic and that Mr Lamb did nothing to invite or deserve the treatment he received. Public acts that incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group are unlawful under the Anti-Discrimination Act 1977. Wayne Campbell Taree (4) Pursuant to s 108(7) of the AD Act, if the Respondent does not comply with Order 3 above within the time specified, the Respondent must pay further damages of $2,250 within three months of the date of this decision. (5) Liberty to apply in relation to the terms of the apology and its publication within seven days.
Catchwords:	RACIAL VILIFICATION
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Comensoli v Passas [2019] NSWCATAD 155 Jones v Scully [2002] FCA 1080; 120 FCR 243 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Margan v Manias [2013] NSWADT 177 Margan v Manias [2015] NSWCA 388 Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223 Sunol v Collier and Anor (No 2) [2012] NSWCA 44 Wotton v State of Queensland (No 5) [2016] FCA 1457, (2016) 352 ALR 146
Texts Cited:	Nil
Category:	Principal judgment
Parties:	William “Billy” Lamb (Applicant) Wayne Campbell (Respondent)
Representation:	Applicant (Self-Represented) Respondent (Self-Represented)
File Number(s):	2020/00232702
Publication restriction:	Nil