Tuck v Thompson and McGuire

[2010] NSWADT 144

CITATION:	Tuck v Thompson and McGuire [2010] NSWADT 144
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Roy Tuck Respondent: John Thompson (091135) Patrick McGuire (091136)
FILE NUMBER:	091135; 091136
HEARING DATES:	31 May 2010
SUBMISSIONS CLOSED:	31 May 2010
DATE OF DECISION:	9 June 2010
BEFORE:	Furness G - Judicial Member; Hayes E - Non-Judicial Member; Lowe A - Non-Judicial Member
CATCHWORDS:	Equal Opportunity- homosexual vilification- apology
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Burns v Dye [2002] NSWADT 32 R v D and E Marinkovic [1996] EOC 92-841); Anderson v Thompson [2001] NSWADT 11 Z v University of A & Ors (No 7) [2004] NSWADT 81 Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 JM and JN v QL and QM [2010] NSWADT 66 Qantas Airways v Gama [2008] FCAFC 69; Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Carter v Brown and Fisher [2010] NSWADT 109
REPRESENTATION:	Applicant Representative: C Mulvey, barrister Respondent Representative: No appearance by either respondent
ORDERS:	Each respondent is to publish one of the following signed apologies behind the glass on the notice board opposite the main lifts on the ground floor of the foyer of residential apartments at 3 Phillip Street, Waterloo for a period of at least 28 days. The apology should be printed in at least 12 point font on at least an A4 size typed page. "The Equal Opportunity Division of the Administrative Decisions Tribunal has found John Thompson, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality. I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.” "The Equal Opportunity Division of the Administrative Decisions Tribunal has found Patrick McGuire, to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality. I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.” Each respondent is enjoined from continuing or repeating any of the speech or other conduct which has been found to constitute vilification.

REASONS FOR DECISION

Introduction and procedural matters

1 The applicant, Roy Tuck made a complaint against John Thompson alleging that between 4 March 2008 and 3 April 2009, the respondent engaged in homosexual vilification. The applicant also complained that Patrick Maguire engaged in homosexual vilification between 3 June 2008 and 3 April 2009.

2 At the time of the incidents complained about, the three men were neighbours, living on the same level of a public housing block in Waterloo. The applicant lived in apartment 7, Mr Thompson in apartment 8 and Mr McGuire in apartment 1. The applicant has since moved.

3 Each of the respondents was notified of the complaint against him by the Anti Discrimination Board (the Board). Notwithstanding several requests and warnings from the Board, neither respondent provided a response to the Board.

4 Neither respondent appeared before the Tribunal or filed any material with the Tribunal.

5 The Tribunal received into evidence an Affidavit of Kate Duffy, solicitor for the applicant in which she affirmed having posted a copy of the applicant’s points of claim and witness statements to each respondent. The envelope sent to Mr Thompson was returned unopened and the envelope to Mr McGuire was returned having been opened and resealed.

6 At the Tribunal’s request, Ms Duffy instructed a process server to serve further copies of those documents and relevant correspondence indicating, among other matters, the time and date of hearing, on each respondent. An Affidavit of service from the process server in relation to each respondent was also before the Tribunal.

7 The Tribunal is satisfied from that evidence that notice of the proceedings was served on the respondents and each was served with the points of claim, witness statements and notice of the place and date of hearing.

8 The applicant relied upon statutory declarations made by him and by two neighbours. There were various attachments to the applicant’s declaration including the notes referred to in his evidence and reports from clinical psychologists as to the applicant’s state of health.

Homosexual vilification

9 Homosexual vilification is provided for in s.49ZT of the Anti Discrimination Act as follows:

(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 homosexuality 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 Act2005 or otherwise) in proceedings for defamation, or
(c) a public act , done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

10 “Public Act” is defined to include:

(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 homosexuality of the person or members of the group.

11 “A public act” has been held to include the possibility of being overheard by or visible to passersby, even if the act took place on private property, (see Burns v Dye [2002] NSWADT 32 and the cases referred to therein at [15] – [18]); the placing of a note on the complainant’s front door in a block of units, even thought the block was not open to the public at large and was accessible only to residents and their visitors (R v D and E Marinkovic [1996] EOC 92-841); and abusive words spoken on the stairwell of a block of units, where there were no eyewitnesses but the words could be overheard (Anderson v Thompson [2001] NSWADT 11).

12 We agree with the Tribunal in Z v University of A & Ors (No 7)[2004] NSWADT 81 that abuse which is loud enough for bystanders to readily overhear may constitute a public act whereas a conversation in a normal speaking voice would probably not.

13 To incite requires more than conveying hatred or expressing serious contempt or severe ridicule although it is not necessary to prove that any person was in fact incited (see Z and Velosky & Anor v Karagiannakis & Ors [2002] NSWADTAP 18.

14 The question to be asked is could the ordinary reasonable person understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of homosexuality? (see Z)

15 We agree that the following definitions provide the ordinary meaning of the words in the provision. (see Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [40])

‘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).

16 Homosexuality must be ‘a substantially contributing factor’ or ‘an operative ground’ of the incitement. (See Z; O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106)

To succeed in his claims of homosexual vilification, the applicant bears the onus of proving the following in relation to each respondent:

a. the respondent did a public act
b. which incites
c. hatred towards, serious contempt for, or severe ridicule of the applicant
d. on the ground of homosexuality.

18 The applicant bears the onus of proving the complaint on the balance of probabilities having regard to the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. (see JM and JN v QL and QM[2010] NSWADT 66, Qantas Airways v Gama [2008] FCAFC 69 Branson J at [139])

Complaint against John Thompson

19 The applicant moved into the Waterloo premises in February 2005 and was initially friendly with the two respondents. The doors of their respective apartments were about two metres apart. In April 2008, he was with Mr Thompson when Mr Thompson said negative things about ‘poofters’. He then told Mr Thompson that he was gay.

20 The first instance of homosexual vilification he asserts, occurred on 3 June 2008 when Mr Thompson was in his own apartment, and yelled loudly across the hallway, in an angry and bitter tone, directed at the applicant:

“Stop sending that fucking dyke to upset Pat or you will pay the penalty. You’re nothing but a filthy, dirty poofter, Roy. You fucking poofters carry the virus.”

21 The second instance complained of occurred on 7 June 2008 when Mr Thompson hit the applicant’s door with a mallet. That occurred about 10pm and there was no other person in the hallway.

22 The third instance occurred on 10 June 2008 when the applicant found a newspaper clipping stuck to his door. It said ‘know your enemy’. There was no evidence as to who placed the clipping on his door.

23 The fourth instance occurred on 4 March 2009 when the applicant got out of the lift on his level and Mr Thompson walked past him and called him “filthy, dirty poofter”. There was no evidence as to whether any other person was present or the tone of voice used by Mr Thompson.

24 The fifth instance occurred on 5 March 2009 when the applicant heard Mr Thompson and Mr McGuire come home late. He heard them swearing and talking to each other in the hallway about him. He heard them say loudly “the old poofter next door” and “faggot dog”. In his statement, the applicant did not distinguish between the respondents as to who made which statement or whether each said the same words.

25 The sixth instance occurred on 18 March 2009 when the applicant was with Mr Linschoten, a neighbour, in his apartment when he heard Mr Thompson say to Mr McGuire in the hallway, in a loud drunken slur “should see you tomorrow, mate. We’ll get this old poofter soon mate.” Mr Linschoten made a statutory declaration in which he declared that he heard Mr Thompson say “Goodnight mate, we’ll get the poofter later.”

26 The seventh instance occurred on 3 April 2009 when the applicant ran into the two respondents on the street and tried to pass them. Mr McGuire pushed a shopping trolley into the applicant’s right knee. Mr Thompson then yelled loudly, in an angry, deep voice “Go and job the poofter, Pat”. Mr McGuire then came towards him and swung a punch at him with his right hand. The applicant ducked. Mr Hardy, another neighbour declared that the applicant had told him of these events which occurred on 3 April 2009.

27 The eighth instance occurred also on 3 April 2009 when the applicant was about to enter his unit and saw Mr Thompson was in his unit with his door open. He yelled, in his deep, bitter tone “get off the floor, ya poofter shit”. Mr Hardy was present at that time and declared that he heard Mr Thompson and Mr McGuire calling the applicant a poofter.

28 The final instance occurred on 4 April 2009 when the applicant found a note in the foyer of his building near the lift. It read “Pat are you okay, mate? You have Tuck on toast, he will pay the price and be removed from this building where he has caused so much trouble. It was good to see you challenged him on wed. He is a very weak person, a bully pat but when you put him to the test he backed down he is a low life. The police will take out a AVO order against him and the housing dept will act. Call in after you come back on Sunday. John.” A copy of the note was annexed to the applicant’s statement.

Factual Findings concerning complaint against John Thompson

29 As indicated, neither respondent attended the hearing nor provided to the Board or to the Tribunal any material. The Tribunal is reasonably satisfied that the incidents referred to on 3 June 2008, 7 June 2008, 4 March 2009, 18 March 2009, 3 April and again on 3 April 2009 and on 4 April 2009, each occurred as set out by the applicant.

30 In relation to the incident on 5 March 2009, the applicant’s statement does not distinguish between the respondents in attributing responsibility for the statements made. While it is possible that each respondent said one of the two phrases, there is no evidence which permits us to determine who said what. It is unlikely that each of them said the same words. The applicant’s counsel submitted that Mr Thomson said “the old poofter next door” and Mr McGuire said “faggot dog”. There is no evidence to support that submission.

31 Accordingly, we are not satisfied to the requisite standard that Mr Thompson or Mr McGuire said the words attributed to them on 5 March 2009.

32 In relation to the incident on 10 June 2008, the applicant does not attribute that act to any named person. Counsel for the applicant submits that Mr Thompson is responsible for it. There is no evidence to that effect. We are not satisfied on the evidence that Mr Thompson stuck the clipping to the door.

33 In relation to the last incident on 4 April 2009, that matter is outside the period of complaint referred to the Tribunal by the Board. The source of the Tribunal's power to hold an inquiry is the referral of that complaint by the President (s.96). It is clear from a line of authorities that the Tribunal has no jurisdiction to inquire into alleged events that fall outside the period identified by the written complaint: Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation[1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr[2001] NSWADTAP 16 [at 16] Burns v Dye [2002] NSWADT 32 at [8-9].

Homosexual Vilification?

34 The incidents which occurred on 3, 7 June 2008, 4, 18 March and the second incident on 3 April 2009 took place in the hallway of the building in which all men lived.

35 Of those incidents, those on 3 June 2008, 3 April 2009 and 18 March 2009 involved the respondent speaking loudly and thus were capable of being overheard.

36 In relation to the incident on 4 March 2009, there is no evidence as to the tone of voice used, however, given the location in the hallway and the strength of the words used, we are satisfied that it could have been overheard and thus constitutes a public act.

37 We find that consistent with the authorities cited above, each of those instances were a public act.

38 The first incident on 3 April occurred in Raglan Street, Redfern and that is a public place and thus on that occasion, Mr Thompson also committed a public act.

39 The question then is could the ordinary reasonable listener understand from each of the incidents which we have found to have occurred that he/she is being incited to hatred towards, or serious contempt for, or serious ridicule of the applicant on the ground of homosexuality?

40 In a recent decision of a similarly constituted Tribunal, it was held that the words ‘faggot’ and ‘poofter’ are used in the community to refer to male homosexuals and usually, but not always in a denigratory manner. (see Carter v Brown and Fisher [2010] NSWADT 109)We also consider that, in this case, the use of such language, alone, while generally capable of conveying hatred, contempt or ridicule, does not of itself incite others. We take the view, in this matter, for that language to be inciteful, more is required.

41 In this case, we are of the view that the accompaniment of strong language, including the use of expletives, threats of violence, yelling and/or sexually explicit words is sufficient for the ordinary reasonable listener to understand that he or she is being incited.

42 Thus, we find that the ordinary reasonable listener would understand that he or she is being incited by the incident on 3 June 2008 when Mr Thompson used strong language and threatened violence. That incitement was on the grounds of homosexuality because Mr Thompson used words associated with homosexuals and directed them to the applicant, whom he called by name.

43 We find that the ordinary reasonable listener would understand that he or she is being incited by the incident on 4 March when Mr Thompson used similarly strong language. That incitement was on the grounds of homosexuality because Mr Thompson used words associated with homosexuals and directed them to the applicant, whom he was passing.

44 We find that the ordinary reasonable listener would understand that he or she is being incited by the incident on 18 March 2009 when Mr Thompson threatened violence. That incitement was on the grounds of homosexuality because Mr Thompson used words associated with homosexuals. While there was no express reference to the applicant, the proximity to him is sufficient to satisfy us that that incident falls within the provision of the Act.

45 We find that the ordinary reasonable listener would understand that he or she is being incited by the first incident on 3 April 2009 when Mr Thompson threatened violence and in fact, incited another to violence. That incitement was on the grounds of homosexuality because Mr Thompson used words associated with homosexuals and directed them to the applicant.

46 We find that the ordinary reasonable listener would understand that he or she is being incited by the second incident on 3 April 2009 when Mr Thompson used strong language and threatened violence. That incitement was on the grounds of homosexuality because Mr Thompson used words associated with homosexuals and directed them to the applicant.

47 We do not find that from the incident on 7 June 2008 when Mr Thompson hit the applicant’s door with a mallet an ordinary reasonable observer would understand that he or she is being incited to hatred towards, or serious contempt for the applicant on the ground of homosexuality. In addition to there being no reference to homosexuals, the action by Mr Thompson, while a violent one, would not by itself, necessarily incite any other person.

48 Thus, of the eight instances which occurred within the time of the complaint and which comprise the complaint against Mr Thompson, for the reasons given above, we find five instances constitute homosexual vilification within the terms of the Act. Thus we find the complaint substantiated in part.

Complaint against Patrick McGuire and factual findings

49 The applicant’s counsel submitted that that on 5 March 2009, Mr McGuire, in company with Mr Thompson had a conversation and repeats the submissions made in relation to Mr Thompson and set out above. For the reasons given above, we are not satisfied to the requisite standard that Mr Thompson or Mr McGuire said the words attributed to them on 5 March 2009.

50 The applicant complained that on 19 March 2009, he asked Mr McGuire to stop closing the windows in the common area because it was hot day. Mr McGuire said to him, in a bitter, deep tone “Get back to your room, you faggot.” Mr McGuire approached him and held his fist and then tried to punch the applicant in the face. He then said “I’ll push you through the fucking window.” He then called him a faggot again.

51 The applicant complained that on 3 April 2009 when the applicant ran into the two respondents on the street and tried to pass them. Mr McGuire pushed a shopping trolley into the applicant’s right knee. Mr Thompson then yelled loudly “Go and job the poofter, Pat”. Mr McGuire then came towards him and swung a punch at him with his right hand. The applicant ducked. Mr Hardy declared that the applicant had told him of these events on 3 April 2009.

52 As indicated, neither respondent attended the hearing nor provided to the Board or to the Tribunal any evidence. The Tribunal is reasonably satisfied that the incidents referred to on 19 March and on 3 April occurred as set out by the applicant.

Homosexual vilification?

53 The applicant’s counsel submitted that the incident on 19 March 2009 occurred in the hallway. There is no evidence to this effect, indeed, the statement of the applicant supports a finding that it occurred in the common area. The conversation concerned the windows in the common area and the threat made was also about those windows. The tone used was bitter. On these bases, we conclude and find that the words were spoken in the common area and capable of being overheard, therefore Mr McGuire engaged in a public act, in the terms of the AD Act.

54 Mr McGuire used words associated with homosexuality and which involved a threat of violence, in addition to the action taken, which also involved the threat of violence. We are satisfied that an ordinary reasonable observer would understand that he or she is being incited to hatred towards, or serious contempt for, the applicant on the ground of his homosexuality by these words being spoken and the action taken in respect of the applicant.

55 The conduct of Mr McGuire on 3 April 2009 was a public act by virtue of it taking place in the public street.

56 For the reasons given above, we are satisfied that Mr Thompson vilified the applicant on that occasion. We are also satisfied that Mr McGuire was in fact incited by Mr Thompson and attempted to punch the applicant. The conduct of Mr McGuire is evidence supporting the finding that Mr Thompson engaged in vilifying behaviour. The question is whether it, separately, constitutes vilification by Mr McGuire.

57 We find that it does not. The ordinary reasonable observer and listener would have heard the conversation between Mr Thompson and Mr McGuire which preceded it, observed that that conversation had incited Mr McGuire to attempt to punch the applicant. However, that act by Mr McGuire would not necessarily incite further conduct. The attempted punch by Mr McGuire certainly conveys hatred towards and serious contempt for the applicant on the ground of his homosexuality but falls short of inciting others.

58 Accordingly, in relation to the complaint against Mr McGuire we find that the conduct of Mr McGuire on 19 March 2009 constitutes homosexual vilification whereas the conduct on 3 April 2009 does not. Thus we find the complaint substantiated in part.

Remedies

59 Section 108 of the Administrative Decisions Tribunal Act, provides the Tribunal with the following powers with respect to complaints

(1) In proceedings relating to a complaint, the Tribunal may:
(a) dismiss the complaint in whole or in part, or
(b) find the complaint substantiated in whole or in part.
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(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.
(3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal , having regard to the circumstances of the case, considers that such an extension is appropriate.
(4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.
(5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
(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.

60 The applicant seeks an apology in the terms set out below and an order that the respondents desist from the conduct complained of. Sections 108(2)(b) and (d) empower the Tribunal to make the orders sought. We are satisfied that those orders are appropriate following our findings that each complaint was substantiated in part.

61 We order that each respondent is to publish the following signed apology behind the glass on the notice board opposite the main lifts on the ground floor of the foyer of residential apartments at 3 Phillip Street, Waterloo for a period of at least 28 days. The apology should be printed in at least 12 point font on at least an A4 size typed page.

The Equal Opportunity Division of the Administrative Decisions Tribunal has found (insert name of respondent), to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which makes it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of homosexuality.

I apologise unreservedly for my conduct to Roy Tuck which caused the Administrative Decisions Tribunal to make its finding and which conduct has brought Mr Tuck unnecessary distress.”

62 We order that each respondent is enjoined from continuing or repeating any of the speech or other conduct which has been found to constitute vilification.