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

1. 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.

2. 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.

3. 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

4. It falls to Mrs Stevens to establish each of the above elements on the balance of probabilities.

5. 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

6. 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.

7. Being satisfied that Mr Hancock was properly notified of the date and time of the hearing we decided to proceed to determine the complaint made by Mrs Stevens in his absence.

Statutory framework

8. Section 38S provides:

38S Transgender 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) a person on the ground that the person is a transgender person, or

(b) a group of persons on the ground that the members of the group are transgender persons.

(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, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

9. A transgender person is defined to mean:

38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

Legal principles

10. The Act makes it unlawful to vilify a person on prescribed grounds which include being a transgender person. The vilification provisions in the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol) and Jones v Trad [2013] NSWCA 389 (Jones). The following principles relevant to this matter may be distilled from the authorities:

(a)   An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of Mrs Stevens (the relevant reaction) (Jones at [53])

(b) “Incite” in s 38S means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41])

(c) For a contravention of s 38S it is not necessary that a person actually be incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41])

(d)   It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of a transgender person(s); it must be capable of inciting those reactions in an ordinary member of the class to whom the act is directed / the audience or likely audience (Sunol at [41])

(e)   The assessment of the capacity of the public act to incite the relevant reaction, must be undertaken by reference to the context in which it occurs (Sunol at [61])

(f)   In addition, in making that assessment the particular class to whom the act is directed/ the audience or likely audience must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63])

(g)   The relevant ground, in this case the person being a transgender person, must be at least one of the “real”, ”genuine” or “true” reasons for the relevant reaction being incited (Jones [98]; Trad v Jones & anor (No. 3) [2009] NSWADT 318 at [181] – [183])

11. The words “hatred” “serious” “contempt” “serious” and “ridicule” are ordinary English words and must be given their ordinary meaning:

"hatred" means "intense dislike; detestation" (Macquarie), "a feeling of hostility or strong aversion towards a person or thing; active and violent dislike" (Oxford);

"serious" means "important, grave" (Oxford); "weighty, important" (Macquarie);

"contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account"(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie);

"severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme"(Macquarie);

"ridicule" means "subject to ridicule or mockery; make fun of, deride, laugh at"(Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie).

It is settled that in assessing whether the impugned act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of Mrs Stevens the relevant audience or group to whom the act was directed must be identified. However as noted in Trad v Jones (No 7) [2014] NSWCATAD 225 at [34], there is a divergence of opinion as to whether that assessment is to be made by reference to the "ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience or group. In Sunol, Bathurst CJ expressed (at [34]) a preference for the question to be answered having regard to the effect of the act on an “ordinary member” of the relevant group. In the same judgement, Allsop J took the view that the question is ultimately one to be determined having regard to the context in which the offending act took place, reasoning (at [61]):The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider.

12. In the most recent decision of the NSW Court of Appeal to consider the operation of the vilification provisions in the Act, Jones, Ward JA at [53] referred to, but did not determine, the question of whether the capacity of the act to incite the relevant reaction was to be answered by reference to an “ordinary” or an “ordinary reasonable” member of the relevant group, characterising the test as the “ordinary member (or perhaps an ordinary reasonable member)” (at [61],[62]).

13. Having regard to the facts of this matter, we think it appropriate to determine the question of whether any of the offending acts had the capacity to incite by referring to the standard of the ordinary person of the relevant group.

14. Accordingly in determining Mrs Stevens’ complaint, we must ask: “Did any of the public acts about which Mrs Stevens complains, have the capacity to “incite” — to rouse, to stimulate, to urge, to spur on, to stir up or to animate — hatred towards, serious contempt for, or serious ridicule of her in the notional ordinary member of the relevant audience, on the grounds that Mrs Stevens is a transgender person?”.

Did the alleged conduct occur?

President’s Report

15. In a complaint lodged with the President on 16 January 2014, Mrs Stevens alleged that since 2000 Mr Hancock made comments to her in public, such as:

It’s an old man in a dress

Here’s a man with a red wig

Transvestite with AIDS

Man with cock cut off

Man who thinks he is woman

Ugly man with make-up/in a dress

Who would have sex with that

16. Mr Hancock responded to those allegations in an undated letter received by the Board on 10 March 2014:

he did not meet Mrs Stevens until she moved into the NSW Housing complex (Housing Complex) in 2003

initially he and Mrs Stevens were friends but she took offence at his “openly gay personality” and they agreed to attend mediation

since Mrs Stevens was investigated by NSW Housing for “inappropriate subletting” she has subjected him to a “torrent of abuse, harassment, victimisation”

in 2013, he and his partner witnessed Mrs Stevens assault an elderly lady who lived in a neighbouring unit (the Elderly Neighbour)

he was called to give evidence in proceedings before the Local Court about the alleged assault

after being found guilty of assault, Mrs Stevens has continued to “retaliate, victimise and harass all other parties”

in his opinion, Mrs Stevens is discriminating against gay people living in the Housing Complex.

17. In a further undated letter received by the Board on 7 April 2014, Mr Hancock:

admitted saying while seated at the back of the court room during the Local Court proceedings referred to above:

“I can’t tell you how annoyed I am because it’s my birthday today and I have been stuck here all day because of an old man in a dress”

conceded that on occasion he had called Mrs Stevens “an old man in a dress” in retaliation for outing him and his partner

denied saying that Mrs Stevens wears a red wig

denied saying Mrs Stevens was suffering from AIDS, reasoning that this allegation was implausible given his own HIV status

responded to Mrs Stevens’ claim that she was offended by his “gay personality” by stating “people in glass houses …”

stated that after giving evidence against Mrs Stevens in the assault proceedings, she applied for an Apprehended Personal Violence Order (APVO)

claimed he had a “massive aversion to violence” because of being mistreated as a child and, as a consequence it was improbable that he would harm Mrs Stevens

claimed that the Police found all of the complaints made against him by Mrs Stevens to have “no substance”

claimed that as a consequence of this “constant trauma” he is suffering “severe mental health issues and depression”.

18. In a statement given to the Board and dated 25 June 2013, the Elderly Neighbour wrote:

on 3 April 2013 she was pursued by Mrs Stevens in the housing complex and Mr Hancock and his partner came to her defence. She alleged that Mrs Stevens sneered and yelled out at the pair “At least I am not gay and dying of AIDS like you two, you pathetic faggots”

the statement made by Mr Hancock during the Local Court proceedings — “I can’t tell you how annoyed I am because it’s my birthday today and I have been stuck here all day because of an old man in dress” — was made in the context of a private conversation between four people and were not directed at Mrs Stevens

in 2010, following an approach by Mrs Stevens, in her position as “DOH [Department of Housing] Precinct Representative” she arranged a mediation between Mrs Stevens and Mr Hancock to discuss Mr Hancock’s “outwardly camping up in a humorous way”. At that mediation Mr Hancock was very apologetic and wept.

19. In a subsequent (undated) letter to the Board, Mrs Stevens:

denied any mention being made of Mr Hancock’s “campiness” during the “so-called mediation”

contended that the focus of the “mediation” was Mr Hancock’s abuse towards her

conceded she “assaulted” the Elderly Neighbour – “thrashed a garden door towards her” — but explained that it was in the context of the neighbour yelling abuse and making disparaging remarks about her appearance

denied having been investigated by NSW Housing

denied being aggressive towards Mr Hancock or threatening him with violence

claimed that when yelled at by Mr Hancock’s partner he was so close she could feel the “breath on her face”, she felt intimidated and ran away

claimed that because of intimidation by Mr Hancock she was seeking an extension of the PAVO

asserted that this is not a “neighbour dispute” but “discrimination within the [Housing Complex] and in public on Crown Street plus the Downing centre reception area”.

Evidence given in these proceedings

20. For the purpose of these proceedings Mrs Stevens and Mr Hancock each prepared written statements. Each focused in their respective statements on the comments made by Mr Hancock during the Local Court proceedings and the subsequent PAVO issued to Mr Hancock.

21. In addition, Mr Hancock filed a statutory declaration prepared by his partner, a character reference provided by a friend and various court documents relating to the PAVO.

22. In a document prepared by Mrs Stevens and filed on 15 January 2015, Mrs Stevens responded to various allegations made by Mr Hancock. In oral evidence Mrs Stevens gave further particulars about the allegations outlined in the President’s report.

Oral evidence given by Mrs Stevens

23. According to Mrs Stevens, Mr Hancock first commented on her transgender status about six months after he moved into the Housing Complex. She stated that, while walking across the main courtyard in the complex, Mr Hancock called out from a distance of about six to eight metres, “Are you a drag queen?” and said “You are all gay before being in drag”. Mrs Stevens claims she let the comment pass and walked on.

24. Mrs Stevens claims that a couple of days later she approached Mr Hancock and sought to explain to him that a transgender person and a drag queen are not one and the same thing. To this end she handed him a copy of Polare, a magazine published by the Gender Centre. According to Mrs Stevens, Mr Hancock threw the magazine away muttering “Garbage!”.

25. Mrs Stevens claimed that sometime later while at her unit undertaking some odd jobs, Mr Hancock again asked whether she was a “drag queen”. She stated that she again tried to explain, apparently without success what is meant by the term “transgender person”.

26. According to Mrs Stevens, sometime later while she was walking across the main courtyard in the Housing Complex, Mr Hancock called out to her in a loud voice “You look like a fat man in a dress”. She claimed the comment was made in an angry tone with spite, and in her opinion conveyed contempt and ridicule for her. She recalled the incident occurred sometime after she had given up smoking and gained a lot of weight. She claimed that at the time there were a number of people in the courtyard. She stated that the courtyard is like a “community centre” and in constant use by tenants and their guests.

27. Mrs Stevens claimed that the above incidents were just a few examples of Mr Hancock’s unwelcome conduct. She claimed that he routinely called out to her while she was crossing the courtyard to access her unit, comments of the type she described in her initiating complaint to the Board (see at [16]). In addition, she claimed that this conduct was not confined to the Housing Complex but extended to the neighbouring area. She estimated that on at least 20 occasions before she lodged her complaint with the Board, Mr Hancock “hurled abuse” at her outside the Complex usually from a car. She claims that the conduct continues to this day.

Can we determine the allegations concerning conduct outside the Complex?

28. In oral evidence, Mrs Stevens gave a detailed account about a number of incidents alleged to have occurred outside the Complex on the streets of Surry Hills, at the local community centre and local supermarket. Apart from the Local Court incident (see [36]) there is scant reference in the written material provided by the parties to the President and the Tribunal about those incidents.

29. Despite being directed at the case conference on 25 February 2015 to file and serve any statements and material on which she intends to rely, Mrs Stevens failed to do so.

30. Mrs Stevens was not legally represented and had difficulties presenting her case. We accept, as claimed, that it was only when questioned in these proceedings she was able to recall the details of the offending incidents described in oral evidence that occurred outside the Complex - on nearby streets, at the local community centre and at a local supermarket. The difficulty presented is that Mr Hancock was not on notice of those incidents, in that he had not been given any detail about any of those incidents - that is, precisely what was alleged to have been said by him, at what point and in what location. He was on notice only that abusive comments of the type listed in [16] above had allegedly been made by him on many occasions outside the Complex. In our view, given Mr Hancock was not present to hear Mrs Steven's oral evidence, it could constitute a denial of procedural fairness to now determine whether those acts constitute a contravention of s 38S of the Act. This is not to suggest that in determining a complaint, the Tribunal is restricted to the allegations contained in the President’s report or documentary material provided to the Tribunal. Whether the Tribunal is so restricted must be determined on a case-by-case basis.

Did the offending conduct occur?

31. Determining whether the conduct about which Mrs Stevens complains occurred is no easy task given the lack of independent or contemporaneous evidence and in some instances, the lack of particulars about the conduct the subject of the complaint. Added to these difficulties is that apart from the written material provided to the Board and the Tribunal, we did not have the benefit of hearing from Mr Hancock.

31. Mr Hancock denies making some but not all of the alleged comments set out at [16] above. The real factual contest between the parties is whether, as claimed by Mr Hancock and disputed by Mrs Stevens, those comments were always said in a light-hearted and jovial fashion and in the context of an exchange with Mrs Stevens where she “gave as good as she got”.

Were the acts “public acts”?

33. The term “public act” is defined by s 38R of the Act to include “any form of communication to the public, including speaking …” (emphasis added). Apart from the incident described at [26] above which occurred when the parties were alone in Mrs Stevens’ apartment, all of the offending acts occurred in a public place and were, or were likely to have been, witnessed or overheard by persons in addition to Mr Hancock and Mrs Stevens.

34. We find that each of the offending acts about which Mrs Stevens complains constitute a public act, apart from the incident which occurred in Mrs Stevens’ apartment.

Were the offending acts capable of inciting hatred towards, serious contempt for, or severe ridicule of Mrs Stevens?

(i) The Local Court incident

Identity of the audience (or group)

35. It will be recalled that Mr Hancock admitted saying during an adjournment of the proceedings before the Local Court on 18 December 2013:

I can’t tell you how annoyed I am because it’s my birthday today and I have been stuck here all day because of an old man in a dress.

36. Included in the material before us are statements prepared by Mr Hancock, his partner, the Elderly Neighbour and Mrs Stevens. All apart from Mrs Stevens claim that Mr Hancock’s remarks were directed to his partner in the presence of the Elderly Neighbour and Constable Craig Parkinson and were overheard by a friend of Mrs Stevens. (See statutory declaration made by the partner, 22 April 2015; statement made by the Elderly Neighbour, 25 June 2013 (at Tabs 4 and 5 of the President’s Report)).

37. While possible, as Mrs Stevens believes, that in addition to the people listed above, the comments were overheard by other people, on the available evidence we are not satisfied that this occurred.

38. There is no direct evidence about the attitudes held by any member of the group about transgender people in general, or Mrs Stevens in particular. Given the background to the Local Court proceedings and the history of the relationship between Mr Hancock and Mrs Stevens, it is reasonable to infer that all were aware that Mrs Stevens was a transgender person and she and Mr Hancock had a long-standing acrimonious relationship. We also infer that Mr Hancock’s partner and the Elderly Neighbour were not well disposed toward Mrs Stevens and conversely that Mrs Stevens’ friend was not so disposed. There is no evidence about the attitudes or opinions held by the police officer about transgender people in general, or Mrs Stevens.

Did the offending comment have the capacity to incite one or more of the relevant reactions?

39. Mr Hancock’s claim that the offending statement was made to his partner and said in frustration is plausible and consistent with the statements made by his partner and the Elderly Neighbour. While neither the partner nor the Elderly neighbour are independent witnesses, we find on balance that the offending comments were made in the manner as described by Mr Hancock.

40. There can be no argument that in making the offending remarks Mr Hancock was referring to Mrs Stevens and that this would have been understood by everyone who heard the comment.

41. We accept that Mrs Stevens was hurt and distressed by the offending comment. As she saw it, the comment represented a continuation of the abuse she had been subjected to by Mr Hancock over a long period. However, s 38S is concerned with the capacity of the comment to incite one or more of the relevant reactions in an “ordinary member” of the relevant group, not Mrs Stevens’ reaction to the comment.

42. The authorities make plain that “mere insults, invective or abuse” are not enough to engage s 38S (see for example, Sunol at [79]). The comment, conveyed Mr Hancock’s exasperation with the circumstances in which he found himself: waiting on his birthday to be called as a witness in court proceedings. Given the actual words used and the context in which they were said, we are not satisfied that the offending act had the capacity to incite any member of the group, to experience one or more of the relevant reactions towards Mrs Stevens. In reaching that conclusion we have assumed that Mr Hancock’s partner and the Elderly Neighbour were probably not well disposed to Mrs Stevens and, as a consequence may have been more susceptible to the stirring up of the relevant reactions than a person who did not know, or did not hold a poor opinion of Mrs Stevens. In addition given the wide range of human behaviours a member of the NSW Police is exposed to in the course of their work, together with the fact that Mr Hancock did not hold a position of authority, we think it unlikely that the act would have had the capacity to incite the relevant reaction in Constable Parkinson. With respect to Mrs Stevens’ friend the comment is unlikely to have incited the relevant reaction in him; indeed if anything it is likely to have made him annoyed with Mr Hancock for speaking disrespectfully about his friend.

43. Given this finding it is strictly speaking not necessary to evaluate whether the offending act had the capacity to incite the relevant reaction in an ordinary member of the group. Nevertheless, we think it unlikely that the act had the capacity to incite the notional ordinary member of the group to experience one of the relevant reactions.

(ii) Public acts within the Complex

The likely audience

44. The likely members of this group are residents of the Complex and their guests. It is a matter of common knowledge, to which we may have regard, that social housing tenants generally suffer economic and/or other forms of disadvantage (s 144 of the Evidence Act 1995 (NSW)). It is likely that this group would hold a diverse range of opinions about transgender people ranging from ignorance to acceptance and intolerance. On the available material it is not possible to say whether members of this group are likely to be any more or less tolerant of a transgender person, than the community at large. Based on evidence given by Mrs Stevens of her active involvement in the resident community, it is likely that most members of this group, knew, or had had some previous dealings with, Mrs Stevens.

Capacity to incite

Difficulty assessing some conduct the subject of the complaint

45. Apart from the two incidents we discuss below, the claims made by Mrs Stevens about the comments made by Mr Hancock in the Housing Complex, were of a general nature and not particularised. Assessing whether that conduct had the capacity to incite is a difficult, if not impossible, task because that assessment requires all aspects of the conduct and the surrounding circumstances to be considered. It cannot be undertaken at an abstract level.

46. We accept as alleged that on many occasions, Mr Hancock directed comments at Mrs Stevens of the type described in her initiating complaint to the President. However, absent further particulars, apart from the two incidents discussed below we are unable to assess whether the alleged acts had the capacity to incite one of the relevant emotions.

The drag queen comment incident

47. It will be recalled that Mrs Stevens alleged that Mr Hancock asked her whether she was a “drag queen” and said “you are all gay before being in drag”. We accept that this incident occurred in the manner as described by Mrs Stevens.

48. We also accept Mrs Stevens’ claim that before this incident she had not disclosed to her neighbours that she was a transgender person and it was her understanding that they were unaware that she was a transgender person. It follows that the comment is likely to have had the effect of “outing” Mrs Stevens as a transgender person.

49. Self-evidently Mrs Stevens did not welcome the comments and found them offensive. She saw it as the unwarranted disclosure of a matter of a highly personal nature. We accept that the comments caused Mrs Stevens to suffer embarrassment and anguish.

50. It is likely, as Mrs Stevens believes, that on learning that she was a transgender person some members of the group thought less favourably of her. Of itself that does not establish that the act had the capacity to incite one or more of the relevant reactions.

51. The comments conveyed that Mr Hancock believed Mrs Stevens to be a “drag queen” and previously a homosexual. While offensive and humiliating to Mrs Stevens, the comments, in our opinion, fall at the low end of the scale. While they probably had the capacity to incite the notional ordinary member of the group to react with ridicule and/or contempt for Mrs Stevens, in our opinion they did not have the capacity to incite serious contempt for, severe ridicule or hatred of, Mrs Stevens.

“Fat man in a dress” incident

52. The second incident it will be recalled involved Mr Hancock calling out to Mrs Stevens in a courtyard of the complex: “You look like a fat man in a dress”. We accept Mrs Stevens’ account of that incident. The comment conveyed Mr Hancock’s scorn, contempt and ridicule for Mrs Stevens.

53. On hearing that comment we think that members of the group probably:

learnt or, if they were already aware, were reminded that Mrs Stevens was a transgender person (or at least a “man who dressed as woman”)

were caused to question whether she was successful in her attempt to appear to be a “biological woman”.

54. Implicit in the comment was the notion that it was absurd for a man, and a fat one at that, to try and pass them self off as a “real woman”. The meaning conveyed was that Mrs Stevens had failed in her attempt and, was a fraud. It presented her as pathetic and a figure of fun. Implicit in the comment and the manner it was conveyed was an invitation or encouragement to the relevant group to share Mr Hancock’s views.

55. We find that the incident not only conveyed Mr Hancock’s serious contempt and severe ridicule of Mrs Stevens but was also capable of inciting the same reaction in the notional ordinary member of the group.

56. One of the “real”, “genuine” or “true” reasons for those reactions having the capacity to incite the notional ordinary of the group was because Mrs Stevens is a transgender person.

Do any of exceptions apply to the fat man in a dress incident?

57. Section 38S(2) operates to except certain conduct which might otherwise be unlawful by the operation of s 38S(1). Mr Hancock bears the onus of establishing that an exception applies (s 104 of the Act). He has made no submissions about whether the exceptions apply.

58. The “fat man in a dress” incident was not a report of a public act (s 38S(2)(a)); a communication that would be subject to a claim for absolute privilege (s 38S(2)(b)), or a public act, done for any of purposes listed in s 38S(2)(c). Accordingly none of the exceptions listed in s 38S(2) apply.

Summary

59. The “fat man in a dress incident” contravenes  38S of the Act. The balance of the complaint is dismissed.

Should any orders be made under s 108(2)?

60. Section 108(2) provides that where the Tribunal finds a complaint substantiated, in whole or in part, it may do one or more of the following:

Order or other decision of Tribunal

…

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

…

…

(6) If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.

(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

61. Mrs Stevens told the Tribunal that while she had given a great deal of thought to the question of the appropriate form of order, apart from an apology and an order that the conduct not be repeated, she was unsure of the orders to seek.

62. We are of the opinion that the appropriate order in the circumstances is a written apology given by Mr Hancock to Mrs Stevens in the form set out below and displayed in the Complex, in a public and prominent place, such as a community noticeboard. We have also decided to order that Mr Hancock pay Mrs Stevens the sum of $2,000 in the event that he fails to comply with that order.

63. We have decided not to make an order that Mr Hancock refrain from future acts of transgender vilification. Such order would do little more than state that Mr Hancock must comply with the law.

64. We order:

1. The complaint of unlawful transgender vilification is substantiated in part.

2. Within 28 days of the date of this decision Mr Hancock must:

1. give to Mrs Stevens and

2. display in a public and prominent place within the Housing NSW premises where he and Mrs Stevens reside, a signed letter of apology in the following terms:

Dear Mrs Stevens

The Administrative & Equal Opportunity division of the New South Wales Civil and Administrative Tribunal (NCAT) has decided that I contravened the Anti-Discrimination Act 1977 (NSW).

The Tribunal found that comments I made to you in the courtyard of the Housing NSW premises where we both reside, constituted unlawful transgender vilification.

I acknowledge that the words I used vilified you in breach of the Anti-Discrimination Act and caused you deep offence.

I offer my apologies for that behaviour.

Yours faithfully

Troy Hancock

3. 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.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 June 2015