Ms RA v Mr NC - [2018] QCAT 94

CITATION:	Ms RA v Mr NC [2018] QCAT 94
PARTIES:	Ms RA (Applicant)
v
Mr NC (Respondent)
APPLICATION NUMBER:	ADL004-17
MATTER TYPE:	Anti-discrimination matters
HEARING DATE:	25 January 2018
HEARD AT:	Brisbane
DECISION OF:	Member Paratz
DELIVERED ON:	4 April 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The referral under the *Anti-Discrimination Act* 1991 (Qld) is dismissed. 2. The publication of the names of the parties to the proceeding is prohibited pursuant to s 66 of the *Queensland Civil and Administrative Tribunal Act* 2009 (Qld)
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO POLITICAL OR RELIGIOUS BELIEFS – where the complainant was a Muslim woman who was wearing a face covering – where a man was alleged to have said words to her in a lift lobby, and in a lift, which vilified her and members of her religious group – whether the act was a public act which constituted religious vilification under the Anti-Discrimination Act 1991 (Qld) Anti-Discrimination Act 1991 (Qld), s 4A, s 124A Racial Discrimination Act 1975 (Cth), s 6A, s18C Chen v Groom & Lazcas Investments Pty Ltd [2013] QCAT 511 PR v Metro Coach (Aust) Pty Ltd [2011] QCAT 421
APPEARANCES:
APPLICANT:	Ms RA in person (By videoconference)
RESPONDENT:	Mr NC in person (By videoconference)

REASONS FOR DECISION

Ms RA made a complaint to the Anti-Discrimination Commission Queensland (‘the Commission’) which was initiated by an email from her to the Commission on 2 July 2016, in relation to an incident which occurred at Southport in Queensland on 1 July 2016.
The complaint related to verbal comments which Ms RA alleged Mr NC made to her, in a lift lobby and in a lift at an apartment building, which constituted religious vilification.
The complaint was referred to the Tribunal on 12 January 2017. The matter was first set for hearing before me on 18 September 2017, but was unable to proceed on that day as Ms RA did not appear at the scheduled time due to some apparent misunderstanding as to the timing requirements. Mr NC on that occasion was on telephone from Paris, and the whereabouts of Ms RA were uncertain.
The matter was rescheduled for hearing on 25 January 2018. On that day Ms RA took part by videoconference from Saudi Arabia (with an Arabic interpreter attending the Tribunal premises in Brisbane), and Mr NC took part by videoconference from New Caledonia.
In her submissions Ms RA said she was seeking as an outcome an apology and payment of four thousand dollars (which she said was an amount she had been advised by one of the ‘anti-discrimination staff’ is the usual compensation for a matter like this one).[1]
[1]Submission Ms RA 18 May 2017.

The evidence of Ms RA

Ms RA said that she was a student at Griffith University in Brisbane, undertaking Ph.D. studies at the time of the incident.
In her email to the Commission the day after the event, she described the incident as follows:

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.

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Details

Case: [2018] QCAT 94
Decision Date: 4 April 2018

CaseChat Overview and Summary

The case of Ms RA v Mr NC involved a dispute between a Muslim woman, Ms RA, and a man, Mr NC, over alleged vilification based on her religious beliefs. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). Ms RA alleged that Mr NC had made derogatory remarks about her and her religious group in a lift lobby and in a lift, which amounted to religious vilification under the Anti-Discrimination Act 1991 (Qld). The dispute centred on whether the alleged comments constituted a public act, as required by the legislation, given that they were made in a private space such as a lift.

The primary legal issue before the tribunal was whether the alleged comments made by Mr NC to Ms RA in the lift lobby and lift were public acts that constituted religious vilification under the Act. The tribunal had to determine whether the conduct occurred in a public place or whether it could still be considered a public act even though it occurred in a private space. The tribunal also had to consider the meaning of "public act" and whether the circumstances of the alleged comments constituted such an act.

The tribunal dismissed the referral, finding that the alleged comments made by Mr NC did not constitute a public act as required by the Anti-Discrimination Act 1991 (Qld). The tribunal held that the alleged comments were made in a private space, specifically in a lift lobby and in a lift, and therefore could not be considered a public act. The tribunal also noted that the evidence did not support the notion that the comments were made in a way that would be heard by others or that they were intended to be heard by others. The tribunal further held that the alleged comments did not amount to religious vilification as they did not target Ms RA because of her religious beliefs but rather because of her wearing a face covering.

The tribunal also made an order prohibiting the publication of the names of the parties to the proceeding pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). This order was made to protect the privacy of the parties involved in the proceeding. The tribunal found that there were no compelling reasons to disclose the names of the parties and that the publication of their names would not serve the public interest.

Orders

Orders of the court

1. The referral under the Anti-Discrimination Act 1991 (Qld) is dismissed.

2. The publication of the names of the parties to the proceeding is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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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