McMahon v Bowman

[2000] FMCA 3

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

Registry:

Sydney

Applicant

Warwick Howard McMahon

Respondent 1:

Ronald Maxwell Bowman

File No:

SZ4/2000

Hearing Dates:

3, 4 October 2000

Date of Decision:

13 October 2000

Before:

Kenneth Raphael FM

Primary Legislation:

Racial Discrimination Act 1975
(ss 18C(1), (2), (3))
Human Rights & Equal Opportunity Commission Act 1986 (s.46PO)

Application:

Offensive behavior because of race, colour or national or ethnic origin

Matter for Decision:

Principal Matter

REPRESENTION

Applicant:

Mr Colin Hogan Solicitor of Colin A Hogan & Co, Solicitors, Newcastle

Respondent:

Mr Geoffrey Meadows of Bailey Meadows Solicitors, Sydney

ORDERS:

1.    Respondent to pay Applicant $1,500

2.    Respondent to pay the Applicant’s costs

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
SYDNEY REGISTRY
No SZ4/2000

BETWEEN:

WARWICK HOWARD MCMAHON
Applicant

and

RONALD MAXWELL BOWMAN
Respondent

REASONS FOR JUDGMENT

WHAT IS THE NATURE OF THE DISPUTE?

1This application is brought by Warwick Howard McMahon against Ronald Maxwell Bowman pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cwth) [HREOC Act] claiming that he was the subject of racial vilification contrary to s.18C of the Race Discrimination Act 1975 (Cwth)  [RDA].

2It is alleged by the applicant that after his children hit a ball from their property into the neighbouring property owned by the respondent that the respondent made a series of racially offensive remarks addressed to the occupants of the applicant’s house and made further remarks addressed to the applicant himself when the applicant walked over the respondent’s property to retrieve the ball.

3The respondent disputes the evidence of the applicant and the applicant’s witnesses concerning the words alleged to have been uttered and denies that in all the circumstances the allegations are unlawful within the provisions of s.18C(1) or 18C(2).

WHAT FACTS DOES THE APPLICANT RELY ON TO ESTABLISH HIS CLAIM?

4The applicant, his wife and his two sons all gave evidence.  The applicant stated that he was a man of Aboriginal descent married to an ethnic Fijian woman.  He was a seaman although for some time now he had not been at sea because of his health. 

5Mr McMahon alleges that on 12 January 1999  between 6.30 and 7.00p.m. he was in the loungeroom of his home whilst his children and two friends were playing outside.  He became aware that a ball with which they were playing had been hit from his front garden into the front yard of the respondent and on to his front verandah.  He heard the respondent calling to one of the female children “Come and get it” and “you come and get the ball you black bastard, youse are all the fucken same”.  The applicant told the children that he would go and collect their ball and he went over into the respondent’s property.  When he entered onto the respondent’s property the respondent said words to the effect:

“You get off my property you black bastard.”

6The applicant states that he approached the respondent and asked politely for the ball back.  He said…