Mitry v Abbas

[2013] NSWADT 214

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Mitry v Abbas [2013] NSWADT 214

Hearing dates:

19 September 2013

Decision date:

01 October 2013

Jurisdiction:

Equal Opportunity Division

Before:

M Chesterman, Deputy President

Decision:

1. Leave to proceed with the complaint is refused.

2. No order as to costs.

Catchwords:

Racial vilification - complaint declined by President of Anti-Discrimination Board - leave to proceed in Tribunal

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Burns v Dye [2002] NSWADT 32
Haas v Hosking [2010] NSWADT 42
Jones & Anor v Ekermawi [2009] NSWCA 388

Category:

Principal judgment

Parties:

Rick Mitry (Applicant)
Talgat Abbas (Respondent)

Representation:

Mitry Lawyers (Applicant)
T Abbas (Respondent in person)

File Number(s):

131071

reasons for decision

Introduction

1. This decision relates to an application by the Applicant, Rick Mitry, for leave under section 96 of the Anti-Discrimination Act 1977 ('the Act') to proceed in the Tribunal with a complaint of unlawful racial vilification against the Respondent, Talgat Abbas.

1. In circumstances outlined below, the President of the Anti-Discrimination Board ('the President') declined this complaint under section 92 of the Act, on the ground that it was 'lacking in substance'. The Applicant then requested the President to refer the complaint to the Tribunal under section 93A. Section 96 states that any complaint so referred 'may not be the subject of proceedings before the Tribunal without the leave of the Tribunal'.

1. The hearing of the Applicant's application for leave was set down to be heard by me on 10 September 2013. Mr Lee, of Mitry Lawyers, appeared for the Applicant, but the Respondent did not appear. I adjourned the hearing to 19 September, requesting the Registrar to communicate this date to the Respondent by telephoning him on a number furnished by Mr Lee and to advise him that if he did not appear at the adjourned hearing the matter would be determined in his absence. I reserved the question of costs.

1. At the adjourned hearing, Mr Lee again appeared for the Applicant and the Respondent appeared in person. The Respondent indicated that the reason why he failed to appear at the earlier hearing was that the Registrar's letter to him about it had been sent to an address at which he no longer resided. Mr Lee did not dispute this explanation.

1. The evidence put before me at the adjourned hearing comprised the President's Report on the complaint. I have also taken in consideration certain factual statements made from the Bar Table by Mr Lee and by the Respondent, as well as their submissions. Mr Lee advised me that the Applicant, being overseas, was unable to attend.

Outline of facts

1. On 27 August 2012, the Applicant lodged his complaint with the Anti-Discrimination Board ('the Board'). It contained allegations to the following effect.

1. During August 2012, the Respondent, after carrying out a painting job for him, had asked to be paid in cash and, on being requested to furnish an invoice, had become abusive of him in SMS and voicemail messages. On 20 August 2012, he arranged for the Respondent to be paid in return for an invoice. The Respondent then launched a 'verbal tirade' against him, in the presence of a number of people, including the Applicant's son, Mr Richard Mitry. This 'tirade' included allegations that the Applicant was a dishonest and 'low' person and that he was 'dubious in his business dealings because he was of Lebanese origin'. The Respondent also said 'Don't let him be Lebanese about this' and 'Your father is a low person. Don't be like him.' He addressed this last statement to Richard Mitry.

1. In the complaint, the Applicant stated that the Respondent was employed by a company called Opal Painting Group Pty Ltd and requested that the matter be 'investigated for racial vilification'.

1. Having received a copy of the complaint, the Respondent sent a response to the Board on 28 February 2013. In this response, he described himself as 'the sole operator of Opal Painting Group and Sub Contractor'. He maintained that after he had completed the painting job for the Applicant on 12 August 2012, the Applicant said that he would be in his office in Macquarie Street, Sydney on the following day and that the Respondent could call on him there to collect a cheque for about $860 as payment. When the Respondent did this, the Applicant's secretary said that no cheque had been left for him. He telephoned the Applicant, who said that the cheque would be there for him on the following day. This was not the case, and the 'same story' continued 'for over a week'. His journeys to the centre of Sydney to collect this cheque involved him in parking difficulties and were detrimental to his other work. Since on each of these occasions he was told that no cheque had been left for him, he became 'tired and frustrated' and 'felt betrayed'. On the day when payment occurred, the Applicant promised in a telephone conversation to be at his office. But Richard Mitry indicated that he was not there when the Respondent arrived. Mr Mitry also claimed to know nothing about the payment. At this point, the Respondent, feeling 'frustrated and annoyed', made the following statement:-

What [the Applicant] is doing is wrong and messing me around. He should not treat people that low, as I had respect for him as a lawyer and I am not Lebanese so don't treat me the Lebanese way.

1. On 12 April 2013, having previously received a copy of the Respondent's response, the Applicant sent two statements to the Board, signed respectively by Richard Mitry and Michael Lee. Mr Mitry is a director of the firm of solicitors who act for the Applicant in this matter. Mr Lee, a solicitor in the employ of this firm, is appearing for the Applicant in these proceedings.

1. In his statement, dated 12 April 2013, Richard Mitry gave the following account of relevant events. On 20 August 2012, at the Applicant's request, he drew a cheque in the Respondent's favour as payment for painting work in the office premises of Mitry Lawyers ('the premises'). When making this request, the Applicant told him to be sure to get an invoice for the work done. Around the middle of the afternoon on that day, he was sitting in his office, which is near the front door of the premises. He heard shouting from outside the door and the doorbell ringing. When he went to answer the bell, a man standing at the door identified himself as the Respondent. Mr Mitry gave him the cheque and received an invoice. The Respondent then asked where the Applicant was and was told that he was not in the premises. A conversation along the following lines ensued, after which Mr Mitry closed the front door of the premises:-

Respondent: He is a low and dishonest person. He messes me around, and he is lucky I am not protesting with my children out the front of your office.

Richard Mitry: He is my father. It is unnecessary for you to say these things. You have asked for a cheque, which he has told me to give you. Now I would appreciate if you would go downstairs and leave.

Respondent: So you are Lebanese too. He has treated me in the Lebanese way. Exactly the Lebanese way. He is a low person.

Richard Mitry: What does that mean exactly?

Respondent: Don't you act in the Lebanese way too.

1. In his statement, also dated 12 April 2013, Mr Lee gave this account. At about 11 a.m. on 20 August 2012, he heard the doorbell ring at the premises and, using an 'intercom screen' at the reception desk inside the premises, he saw a man whom he later knew was the Respondent. The Respondent asked him for a cheque left for him by the Applicant. When he said that he knew nothing about this, the Respondent said he would call the Applicant and come back later. Just before 12 noon, Mr Lee heard the doorbell ring and, using the intercom screen again, had a second conversation with the Respondent. The Respondent asked about the cheque and Mr Lee repeated that he had not heard from the Applicant about this. The Respondent's reply included the following statements: 'I just want to be paid for my painting' and 'I can't believe that he [the Applicant] would lie to me about this. You don't do business like this.' Then at about 2.45 p.m. Mr Lee heard the doorbell ring and saw Richard Mitry answering the door. While standing 'at reception', he heard a conversation along the following lines:-

Richard Mitry: Here is your cheque.

Respondent: Do you work for Rick?

Richard Mitry: He is my father. But I am also a solicitor here.

Respondent: Your father is a low and dishonest person. He is a liar but he pretends to be educated. Tell him don't be Lebanese about it.

Richard Mitry: And what does that mean...

Respondent: Don't be like your father.

1. In a letter dated 17 April 2013 to the Board, the Applicant stated as follows: (a) on 11 August 2012, he paid the Respondent $500 in cash (the Respondent having insisted on a cash payment), but said that he would not pay the balance due unless the Respondent issued a proper invoice; (b) the Respondent then became abusive as set out in the complaint; (c) he continued to refuse payment without an invoice, despite the Respondent's conduct in sending several abusive telephone messages and visiting the premises; and (d) when the Respondent produced an invoice on 20 August 2012, he was given a cheque by the people then in the premises.

1. The Applicant claimed also that an invoice attached to his letter was 'entirely inconsistent' with the Respondent's allegations in his response to the Board dated 25 February 2013. This invoice was handwritten, dated 20 August 2012 and unsigned. Under the heading 'Opal Painting Group P/L', it stated that the Respondent had received '$500 of agreed verbal contract $870' and that the invoice was 'for balance of $370'. Also attached to the letter was a photocopy of a cheque dated 20 August 2012 for $370, drawn by Mitry Lawyers and made payable to the Respondent.

1. In the opening paragraph of a letter to the Applicant dated 13 June 2013, the President referred to the complaint as one alleging discrimination on the ground of race in the area of goods and services. The President then advised that, following the Board's investigation of the complaint, he had decided to decline the complaint under section 92(1)(a)(i) of the Act. The basis of his decision was, he said, that he was satisfied that the complaint was lacking in substance. He added that there was no evidence to support the Applicant's allegations that the Respondent refused to provide a service, or provided a service on less favourable terms, or that such conduct was causally connected to the Applicant's race. The letter then notified the Applicant of his right under section 93A of the Act to require the President to refer the complaint to the Tribunal.

1. In a letter to the Board dated 3 July 2013, Mitry Lawyers maintained that the Applicant's complaint had been that the Respondent had engaged in racial vilification and that the grounds on which the President had declined the complaint were therefore 'entirely misconceived'. The letter concluded by asking that the complaint, together with the letter itself, be referred to the Tribunal.

1. At the hearing before me on 19 September 2013, Mr Lee made the following factual assertions without opposition from the Respondent: (a) although the President's Report on the complaint contained references to the Respondent's being an employee of Opal Painting Group Pty Ltd, the Applicant did not wish to bring proceedings against this company; (b) the President had not made any attempt to resolve the complaint by conciliation under section 91A of the Act; (c) the Applicant was of Lebanese origin, having been born in Lebanon; (d) the Respondent, when referring to the Applicant's Lebanese origin during his conversation with Richard Mitry on 20 August 2012, spoke in a loud voice; and (e) during this conversation, the Respondent and Mr Mitry were standing just outside the premises, in a foyer that was accessible both by lifts and by a stairwell.

1. Mr Abbas stated, without opposition from Mr Lee, that the only office premises on the floor of the building where this conversation took place were offices occupied by Mitry Lawyers.

1. Subject to objections by Mr Lee on the ground of relevance, the Respondent also stated that he was very upset and frustrated at the time of this conversation. This was because he badly needed the money that the Applicant owed him and he had had to interrupt his work for two or three hours on each occasion when he visited the premises to pick up the Applicant's cheque.

1. Towards the end of the hearing, the Respondent said that he was willing to write to the Applicant and apologise sincerely for having made these statements and that he was sorry for what he had said. At Mr Lee's request, he repeated these expressions of regret. Mr Lee undertook to convey the content of them to the Applicant.

1. The Respondent also indicated that he could not afford to pay any compensation to the Applicant that the Tribunal might award in these proceedings.

Relevant statutory provisions

1. The provisions of the Act in which unlawful racial vilification is defined are sections 20B and 20C. They state:-

20B Definition of "public act"

In this Division, public act includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.

20C Racial vilification unlawful

(1) It is unlawful for a person, by a public act, to 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.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

1. The question of standing to make vilification complaint is addressed in section 88:-

88 Vilification complaints

A vilification complaint cannot be made unless each person on whose behalf the complaint is made:

(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or

(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.

1. The circumstances in which the President may decline a complaint are set out in the following terms in section 92(1) of the Act:-

92 President may decline complaint during investigation

(1) If at any stage of the President's investigation of a complaint:

(a) the President is satisfied that:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

1. The provisions governing the present application for leave to proceed in the Tribunal are to be found in subsections (1) and (4) of section 96. These state, so far as relevant:-

96 Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1)... may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

(4) A decision of the Tribunal under this section with respect to the granting of leave cannot be the subject of an appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997.

1. The remedies that the Tribunal may grant if a complaint under the Act is upheld are listed in subsection (2) of section 108. They include an order for the payment of damages not exceeding $100,000 (under paragraph (a) of this subsection), an order that the respondent must not continue or repeat any conduct made unlawful by the Act (under paragraph (b)) and an order that the respondent publish an apology and/or a retraction (under paragraph(d)).

The parties' submissions

1. Mr Lee commenced his submissions by maintaining that the President's decision to decline the Applicant's complaint was obviously based on a misapprehension of the nature of the complaint and that this of itself provided grounds for granting leave to proceed in the Tribunal.

1. Mr Lee then argued that the Respondent's remarks referring to the Applicant's Lebanese origins clearly constituted unlawful racial vilification under section 20C of the Act. These remarks had to be considered, he said, in the context of the whole of the conversation between the Respondent and Richard Mitry. Considered in this context, they had the requisite capacity to incite, or effect of inciting, any person who heard them to experience hatred towards, or serious contempt for, the Applicant, who was a Lebanese person, on the ground of his race.

1. Mr Lee further argued that these remarks of the Respondent constituted a 'public act' on his part within the meaning of paragraph (b) of section 20B. In the light of case law outlined below, they were to be characterised as 'observable by the public'. This was because they were uttered in a loud voice in a place (the foyer outside the premises) where they could be heard both by members of the public using the nearby stairwell and by people, such as employees or clients of Mitry Lawyers, who were inside the premises.

1. In reply to a question put by me, Mr Lee indicated that the remedies that would be sought by the Applicant if leave were granted would be an award of damages, in an amount determined by the Tribunal, and an apology.

1. The Respondent submitted that he should not be held liable because when he made the statements about which the Applicant complained he did not intend to insult Lebanese people or to 'put them down'.

Discussion and conclusions

1. In a relatively recent case in the Court of Appeal, Jones & Anor v Ekermawi [2009] NSWCA 388, Sackville AJA (with whom McColl JA and Handley AJA agreed) held at [57 - 61] that the test to be applied when determining an application under section 96(1) was whether or not it was 'fair and just' to grant leave. He said also (at [60]) that the criteria laid down for declining a complaint in section 92(1)(a) of the Act were 'relevant to the exercise of the discretion conferred by s 96, although not necessarily determinative of the leave application under that section'.

1. I agree with Mr Lee that regrettably the Board, when dealing with the complaint, appeared not to take proper account of the fact that it both described conduct of the Respondent that could well constitute racial vilification and stated expressly that it was a complaint of racial vilification. Had it viewed the complaint in this light, the President might well have attempted to resolve it by conciliation under section 91A.

1. This error on the part of the Board is not enough in itself, however, to justify a finding that it would be 'fair and just' to grant leave.

1. A major consideration is whether the alleged conduct of the Respondent, if established by the evidence, would amount to unlawful racial vilification.

1. I agree with Mr Lee that the Respondent's remarks referring to the Applicant's Lebanese origins, as described in the statements of Richard Mitry and Mr Lee, had the requisite capacity to incite, or effect of inciting (in the sense of 'prompting' or 'spurring'), a hypothetical 'ordinary' or 'reasonable' listener to harbour feelings of hatred or serious contempt towards the Applicant on the ground of this race. These remarks were to the effect that the Applicant was a 'low' and 'dishonest' person and that in displaying these characteristics he was representative or typical of Lebanese people. They fall within the definition set out in section 20C(1) of the Act and there is nothing to suggest that they would be exempted under section 20C(2).

1. Even according to the Respondent's own version of what he said, there was, in my opinion, the same element of incitement to hatred or serious contempt. But it is to the evidence foreshadowed by the Applicant's witnesses that I must give primary consideration.

1. It is important to note, however, that even according to this foreshadowed evidence the scale or degree of any incitement occasioned by the Respondent's remarks was relatively low. His references to the Applicant's Lebanese origins were brief and few in number. The thrust of his 'tirade' (to use the Applicant's term) was principally against the Applicant, not against the race to which the Applicant belongs.

1. Mr Lee's submission that the Respondent's remarks constituted a 'public act' under section 20B requires close consideration. Undoubtedly, this submission receives support from the following passage, referring to a provision of the Act in the same terms (section 49ZS), in the Tribunal's decision in Burns v Dye [2002] NSWADT 32:-

15 Section 49ZS as set out at [13] of these reasons broadly defines a "public act" to include any form of communication to the public, any conduct observable to the public and the distribution or dissemination of any matter to the public.

16 As noted by the NSW Law Reform Commission in Report 92, "Review of the Anti-Discrimination Act 1977 (NSW)" at p537, recent decisions in other jurisdictions shed some light on what is meant by the words "the public" in the context of s 49ZS. "The public" has been held to include the possibility of being overheard by (R v Ashley (1991) 77 NTR 27 at 30) or visible to passers by, even if the act took place on private property: Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268.

17 In R v D and E Marinkovic [1996] EOC 92-841 the Equal Opportunity Tribunal held that the placing of a note on the complainant's front door constituted a "public act" even though the block of units was not open to the public at large and was accessible only to residents and their visitors.

18 In the more recent decision Anderson v Thompson [2001] NSWADT11, the Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public. Although there were no eyewitnesses the words were spoken with such force they could be overheard by other residents.

1. In the more recent case of Haas v Hosking [2010] NSWADT 42, however, the Tribunal held that no 'public act' under section 20B was committed by the respondent when, in the context of a dispute about the boundary between rural properties owned by him and the applicant, he made statements allegedly constituting racial vilification in the presence of two witnesses. The Tribunal gave the following reasons at [77 - 78]:-

77 The Tribunal is satisfied that any words uttered by [the respondent] to either witness formed part of a private conversation, conducted in a normal conversational tone, which occurred on [the applicant's] property or on the track immediately adjacent to the boundary of the property, and was not intended to be overheard by anyone other than the participants.

78 As the Tribunal is not satisfied that the alleged words of vilification were uttered, or that they were uttered in the presence, or within the sight or hearing, of any member of the public, it is unnecessary to determine whether they otherwise satisfied the requirements of section 20C(1).

1. In the Applicant's favour, I take account of the Respondent's admission that he made the offending remarks in a loud voice. Probably, the Respondent did not 'intend' that what he said should be heard by anyone other than Richard Mitry, but contrary to what the Tribunal said in Haas v Hosking at [77], his intention in this regard does not seem to me to be relevant.

1. The likelihood that these remarks were heard by anyone other than Richard Mitry, Mr Lee and other persons visiting or employed by Mitry Lawyers is relatively low. Even if people outside this range did hear them, the number of these people is likely to have been very small. But these factors do not preclude a finding that the remarks were 'observable by the public'.

1. For these reasons, my conclusion, having regard chiefly to the evidence foreshadowed by the Applicant's witnesses, is that the relevant remarks of the Respondent might well have constituted a 'public act' under section 20B(b) of the Act.

1. For the foregoing reasons, the evidence before me suggests that the Applicant, if this matter went to trial, would be quite likely to succeed in proving unlawful racial vilification on the part of the Respondent. But it is does not follow that leave should be granted, for reasons that I will now explain.

1. I have characterised as 'relatively low' the 'level' of incitement inherent in the offending remarks of the Respondent. I have also held that, although they probably constituted a 'public act', the number of people likely to have heard them was very small. On account of these factors, the only remedy that might be granted to the Applicant if he were successful at a trial of the matter would, in my judgment, be an apology under section 108(2)(d) of the Act. Particularly in view of the fact that the Applicant was not present when the remarks were uttered, I would regard an award of damages as either wholly inappropriate or justifiable only within a very low range.

1. In the circumstances described above at [20], however, the Respondent has made an apology. He has stated in open court that he is sorry for what he said in relation to the Applicant's Lebanese origins and that he would be willing to write to the Applicant in these terms. It is at least a possibility that if the President had endeavoured to resolve the complaint by conciliation this expression of regret would have conveyed a good deal earlier. A formal order under section 108(2)(d) would add very little, therefore, to what has already occurred.

1. As Sackville AJA said in Jones & Anor v Ekermawi (see above at [32]), the criteria for declining a complaint that are set out in section 92(1)(a) of the Act are 'relevant to the exercise of the discretion conferred by s 96, although not necessarily determinative...' One of those criteria, stated in subparagraph (vi), is that 'the respondent has taken appropriate steps to remedy or redress the conduct... complained of'. In my judgment, the Respondent in this case has indeed taken such steps.

1. For this reason, along with the reasons outlined above at [45], my decision, in the exercise of my discretion under section 96, is that leave to proceed with this complaint in the Tribunal should be refused.

1. At the hearing on 10 September 2013, at which the Respondent did not appear, Mr Lee applied for costs. But since the Respondent, at the adjourned hearing, provided a reasonable explanation for his non-appearance and since the Applicant has not succeeded in obtaining leave, there should be no order for costs.

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Decision last updated: 01 October 2013