Stevens v Hancock - [2015] NSWCATAD 126

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Stevens v Hancock [2015] NSWCATAD 126
Hearing dates: 14 May 2015
Decision date: 22 June 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
N Hiffernan, General Member
A Lowe, Gneral Member
Decision:
If Mr Hancock does not comply with Order (2) within 21 days of the date of this decision, he must pay Mrs Stevens the sum of $2,000.

Catchwords: EQUAL OPPORTUNITY — Transgender vilification — whether conduct had the capacity to incite hatred towards, serious contempt for, or severe ridicule — whether that assessment is made by reference to the “ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience or group
Legislation Cited: Anti-Discrimination Act 1977
Evidence Act 1995
Cases Cited: Sunol v Collier and anor. (No 2) [2012] NSWCA 44
Trad v Jones & anor (No. 3) [2009] NSWADT 318
Jones v Trad [2013] NSWCA 389
Trad v Jones (No 7) [2014] NSWCATAD 225
Category: Principal judgment
Parties: Pindi Stevens (Applicant)
Troy Hancock (Respondent)
Representation: Applicant in person
Respondent in person

File Number(s): 1410289

reasons for decision

Pindi Stevens is a transgender person who resides in social housing in Surry Hills, Sydney. She complains that for over a decade she has been subjected to “transgender vilification and discrimination” by neighbouring tenant, Troy Hancock.
Section 38S of the Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person on the ground that the person is a transgender person.
In these reasons we examine whether the acts the subject of Mrs Stevens’ complaint to the President of the Anti-Discrimination Board (respectively, “the President” and “the Board”) occurred, and if so, whether they contravened s 38S of the Act. The latter requires us to decide whether any act found proven:

was a “public act”
had the capacity to incite hatred towards, serious contempt for, or severe ridicule of Mrs Stevens, and
was “on the grounds of” Mrs Stevens being a transgender person

It falls to Mrs Stevens to establish each of the above elements on the balance of probabilities.
Throughout these reasons, as requested, we will refer to the applicant as “Mrs Stevens”. For convenience, when referring to comments made by Mr Hancock and third parties, we will use the prefix “Mrs”, notwithstanding that they refer to the applicant as “Ms Stevens”.

Mr Hancock fails to attend hearing

The matter was listed for hearing on 14 May 2015. Mrs Stevens attended by phone. Mr Hancock did not attend the hearing, nor did he contact the Tribunal or provide a reason for his non-attendance. The matter had been listed for hearing at a case conference held on 25 February 2015. A record of that conference made by the Tribunal (differently constituted) noted that Mr Hancock attended that conference.
Being satisfied that Mr Hancock was properly notified of the date and time of the…

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 Stevens v Hancock

Details

AGLC: Stevens v Hancock [2015] NSWCATAD 126
Case: [2015] NSWCATAD 126
Decision Date: 22 June 2015

CaseChat Overview and Summary

The matter between Stevens and Hancock came before the court for consideration of claims related to transgender vilification. Stevens, identifying as transgender, alleged that Hancock had engaged in conduct that had the capacity to incite hatred, serious contempt, or severe ridicule towards her on the grounds of her gender identity. The dispute required the court to determine whether the conduct in question was such that it had the capacity to incite the aforementioned emotions towards, or in relation to, a person because of their gender identity, and to identify the appropriate standard by which this capacity should be assessed.

The central legal issues before the court involved the interpretation of the vilification provisions under the relevant anti-discrimination legislation, specifically whether the capacity of the conduct to incite hatred, serious contempt, or severe ridicule should be assessed from the perspective of the ordinary, reasonable, or ordinary reasonable member of the relevant audience or group. The court had to determine the appropriate standard of assessment and apply it to the facts of the case to ascertain whether Hancock's conduct amounted to vilification.

The court found that the appropriate standard of assessment was that of the ordinary reasonable member of the relevant audience or group. This standard was considered to be the most balanced and appropriate in assessing the capacity of conduct to incite hatred, serious contempt, or severe ridicule. After applying this standard, the court determined that Hancock's conduct did indeed have the capacity to incite severe ridicule towards Stevens because of her gender identity. Consequently, Hancock was found to have contravened the anti-discrimination legislation. The court ordered Hancock to take specific steps to rectify his conduct and further directed that if he failed to comply within 21 days, he would be liable to pay Stevens the sum of $2,000.

Orders

Orders of the court

If Mr Hancock does not comply with Order (2) within 21 days of the date of this decision, he must pay Mrs Stevens the sum of $2,000.

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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Medium Neutral Citation:	Stevens v Hancock [2015] NSWCATAD 126
Hearing dates:	14 May 2015
Decision date:	22 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member N Hiffernan, General Member A Lowe, Gneral Member
Decision:	If Mr Hancock does not comply with Order (2) within 21 days of the date of this decision, he must pay Mrs Stevens the sum of $2,000.
Catchwords:	EQUAL OPPORTUNITY — Transgender vilification — whether conduct had the capacity to incite hatred towards, serious contempt for, or severe ridicule — whether that assessment is made by reference to the “ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience or group
Legislation Cited:	Anti-Discrimination Act 1977 Evidence Act 1995
Cases Cited:	Sunol v Collier and anor. (No 2) [2012] NSWCA 44 Trad v Jones & anor (No. 3) [2009] NSWADT 318 Jones v Trad [2013] NSWCA 389 Trad v Jones (No 7) [2014] NSWCATAD 225
Category:	Principal judgment
Parties:	Pindi Stevens (Applicant) Troy Hancock (Respondent)
Representation:	Applicant in person Respondent in person
File Number(s):	1410289