Margan v Taufaao

Case [2017] NSWCATAD 216

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Margan v Taufaao [2017] NSWCATAD 216
Hearing dates:20 January 2017
Date of orders: 30 June 2017
Decision date: 30 June 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Dr M Murray, General Member
Decision:

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

 

(2) The Respondent is to pay to the Applicant the sum of $10,000 as compensation for the harm caused to him by the assault and the publication of these statements within 21 days of the publication of this decision.

 

(3) The Tribunal directs that the Respondent, Mr Taufaao provide submissions on Mr Margan’s applications for costs. Any submissions are to be provided to the Tribunal and Mr Margan by 14 July 2017.

 (4) Mr Margan’s application for costs will be determined on the papers after that date.
Catchwords: Homosexual vilification
Legislation Cited: Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Burns v Sunol [2012] NSWADT 246
Burns v Sunol (No 2) [2012] NSWADT 247
Collier v Sunol [2005] NSWADT 261
JM & JN v QL & QM [2010] NSWADT 66
Sunol v Collier (No 2) [2013] NSWCA 196
Margan v Manias [2013] NSWADT 177
Category:Principal judgment
Parties: David Margan (Applicant)
Paul Taufaao (Respondent)
Representation: In Person (Applicant)
File Number(s):2015/00383313
Publication restriction:The Tribunal ordered that the Applicant’s home addressed not be published under section 64(1) of the Civil and Administrative Tribunal Act 2013

Reasons for decision

Background

Procedural history

  1. This decision concerns a complaint by the Applicant, Simon Margan, that on 15 September 2014, the Respondent, Paul Taufaao, engaged in conduct amounting to unlawful vilification on the ground of homosexuality.

  2. On 29 September 2014, Mr Margan complained about this conduct to the Anti-Discrimination Board (ADB). In his complaint, he alleged that it amounted both to unlawful homosexual vilification under section 49ZT of the Anti-Discrimination Act 1977 ('the ADA') and to the offence of serious homosexual vilification under section 49ZTA. On 13 October 2014, Mr Margan sent further information to the ADB regarding his allegations.

  3. On 14 July 2015, pursuant to section 90B (5) of the ADA, the President referred the complaint of unlawful homosexual vilification to the Tribunal.

  4. The complaint was subject of a number of case conferences.

  5. At the hearing before us on the scheduled dates, 20 January 2017 and 17 March 2017, Mr Margan appeared in person. There was no appearance by or on behalf of Mr Taufaao.

Preliminary matters

No appearance by the Respondent Mr Taufaao

  1. Mr Taufaao did not appear at the hearing on 20 January 2017. The Tribunal noted from the file that the ADB had written to Mr Taufaao on 30 October 2014; 11 December 2014 and 14 December 2014, to an address [deleted]. Mr Taufaao had not responded to any of those letters.

  2. When the matter came to the Tribunal, the Tribunal wrote to Mr Taufaao at the Rutherford…

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AGLC
Margan v Taufaao [2017] NSWCATAD 216
Case
[2017] NSWCATAD 216
Decision Date

CaseChat Overview and Summary

The Anti-Discrimination Tribunal of Queensland was tasked with examining a complaint brought by Mr Margan against Mr Taufaao. Mr Margan alleged that Mr Taufaao had assaulted him and made derogatory remarks about his sexual orientation, which amounted to unlawful vilification under the Anti-Discrimination Act 1991. The central issue before the Tribunal was whether the conduct of Mr Taufaao constituted vilification on the basis of homosexuality, and if so, whether the conduct warranted a finding of unlawfulness. The Tribunal needed to determine if the comments and actions of Mr Taufaao met the criteria for vilification as set out in the legislation, and if the conduct was severe enough to be considered unlawful.

The Tribunal found that the conduct of Mr Taufaao did indeed constitute vilification on the basis of homosexuality. The Tribunal reasoned that Mr Taufaao's comments were abusive and threatening, targeting Mr Margan specifically because of his sexual orientation. The Tribunal noted that the statements made by Mr Taufaao were severe and calculated to cause humiliation and distress. Additionally, the Tribunal considered the physical assault to be part of the same course of conduct, which further substantiated the claim of vilification. Given these findings, the Tribunal concluded that the conduct was not only vilifying but also unlawful, as it fell outside the bounds of acceptable behaviour under the Act.

As a result of the Tribunal's findings, it was determined that Mr Taufaao was liable for the harm caused to Mr Margan. The Tribunal ordered Mr Taufaao to compensate Mr Margan in the sum of $10,000 for the injuries sustained from the assault and the emotional distress caused by the vilifying remarks. Furthermore, the Tribunal instructed Mr Taufaao to provide submissions regarding Mr Margan's application for costs by a specified date. The final determination of Mr Margan's costs application was to be made after considering these submissions.

Orders

Orders of the court

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

(2) The Respondent is to pay to the Applicant the sum of $10,000 as compensation for the harm caused to him by the assault and the publication of these statements within 21 days of the publication of this decision.

(3) The Tribunal directs that the Respondent, Mr Taufaao provide submissions on Mr Margan’s applications for costs. Any submissions are to be provided to the Tribunal and Mr Margan by 14 July 2017.

(4) Mr Margan’s application for costs will be determined on the papers after that date.

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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