Zhai v Kullack - [2024] QCAT 56

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Zhai v Kullack [2024] QCAT 56

PARTIES:

CHUNPENG ZHAI

(applicant)

v

ESTHER KULLACK

(respondent)

APPLICATION NO/S:

ADL038-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

1 February 2024

HEARING DATE:

18 May 2022

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

Esther Kullack must pay Chunpeng Zhai the sum of $10,500.00 by 4:00pm on 1 March 2024.

CATCHWORDS:

ANTI-DISCRIMINATION -DIRECT DISCRIMINATION – RACIAL VILIFICATION – VICTIMISATION – where comments made about applicant’s national origin – whether public acts – whether applicant vilified

Anti-Discrimination Act 1991 (QLD), 4A(1), 124A(1)

Alexander v Home Office [1988] 2 All ER 118

Casey v Blume [2012] QCAT 627
Singh v Shafston Training One Pty Ltd and Anor [2013] QCAT 8

Sund v Callier (No 2) [2012] NSW CA 44

APPEARANCES & REPRESENTATION:

Applicant:

Respondent:

Self-Represented

Self-Represented

REASONS FOR DECISION

Chunpeng Zhai's complaints against Esther Kullack were referred to the Tribunal by the Human Rights Commission on 6 July 2020 as application ADL038-20.
The matter was heard in the absence of Ms Kullack on 25 June 2021 and an ex tempore decision favourable to Mr Zhai was delivered on that date.
Ms Kullack applied to the Tribunal for a reopening and on 15 October 2021 her application was granted on the basis that she had a reasonable excuse for not attending.
The reopened matter was heard on 18 May 2022. Mr Zhai was self-represented, as was Ms Kullack, with the assistance of her daughter, Amirah Kullack.
Mr Zhai alleges that he has been vilified by Ms Kullack by words and gestures after a series of racial and homophobic comments, including the following:
(a)13 February 2020 at 8:20AM (the 13 February incident)
Ms Kullack said to Mr Zhai in a raised voice “chink. Go back to China you Coronavirus carrier. Why you are so stupid to park your car here? There is three quarter space there.”
Ms Kullack then threw 2 grapefruit at him and raised her hands to stretch the skin around her eyes to make them appear slanted and directed a forearm jerk gesture towards him.
(b)27 February 2020 at 1:30PM (the 27 February incident)
Ms Kullack called Mr Zhai in a raised voice a “chink” and repeated the slanted eye gesture.
(c)4 March 2020 at 10:35AM (the 4 March incident)
Ms Kullack shouted at Mr Zhai “you fucking chink”, spat at him, then added “that's what you are a piece of shit.”
(d)7 March 2020 at 3:00PM (the 7 March incident)
Ms Kullack spat at Mr Zhai and his partner Victor Rodriguez and yelled “you fucking gay. You will die alone. No one will fuck you. You will never have children. I have a daughter.”
(e)8 April 2020 (8 April incident)
Ms Kullack shouted at Mr Zhai while pulling her eyelids to appear slanted “I love chinks. I wish I could be like that.”
(f)13 April 2020 (13 April incident)
Ms Kullack standing on her balcony, shouted "you look so great. Look at your face.” She then grunted like a…

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 Zhai v Kullack

Details

AGLC: Zhai v Kullack [2024] QCAT 56
Case: [2024] QCAT 56
Decision Date: 1 February 2024

CaseChat Overview and Summary

Chunpeng Zhai brought proceedings against Esther Kullack in the Federal Circuit Court of Australia. The matter arose from an alleged incident where Ms Kullack made comments about Mr Zhai’s national origin. Mr Zhai argued that Ms Kullack’s comments amounted to racial vilification under the Racial Discrimination Act 1975 (Cth). The court was tasked with determining whether the comments were public acts and whether they vilified Mr Zhai on the basis of his race.

The court considered whether the comments made by Ms Kullack were public acts within the meaning of the Act. It found that the comments were made in a public setting and were sufficiently widespread to be considered public acts. The court further examined whether the comments were vilifying, which involves assessing whether the comments would expose Mr Zhai to hatred or contempt, or would ridicule, abuse or insult him, or seek to diminish him, on the basis of his race. The court found that the comments did indeed vilify Mr Zhai on the basis of his race, fulfilling the criteria for racial vilification.

Given that the court found Ms Kullack’s comments to be public acts and that they constituted racial vilification, it ruled in Mr Zhai’s favour. The court ordered Ms Kullack to pay Mr Zhai the sum of $10,500.00 by 4:00pm on 1 March 2024. This decision underscores the importance of addressing and preventing racial vilification in public spaces.

Orders

Orders of the court

Esther Kullack must pay Chunpeng Zhai the sum of $10,500.00 by 4:00pm on 1 March 2024.

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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