Kimble & Souris v Orr [2003] NSWADT 49 (11 March 2003)

Last Updated: 13 June 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Kimble & Souris -v- Orr [2003] NSWADT 49

PARTIES: APPLICANTS

Victor Kimble and Joanne Souris

RESPONDENT

Phil Orr

FILE NUMBERS: 021033

HEARING DATES: 11/10/2002, 12/10/2002

SUBMISSIONS CLOSED: 24/01/2003

DECISION DATE: 11/03/2003

BEFORE: Ireland G - Judicial MemberCox R - MemberPun A - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Veloskey & Anor v Karagiannakis & Ors [2002] NSWADTAP 18 Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102

Kazak v John Fairfax Publications Ltd [2000] NSWADT 77

APPLICATION: Race Discrimination - Accommodation

Vilification - Racial

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

D Grant, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

In person

ORDERS: 1. The Tribunal directs that the Respondent pay to Mr Kimble an amount of $2,000.00

2. There will be no order as to costs.

Reasons for Decision:

BACKGROUND

1 The Applicants to this inquiry are married. Mr Kimble is an Afro-American, born in Birmingham, Alabama, United States of America. The Applicants allege that the Respondent unlawfully discriminated against them on the ground of the race of Mr Kimble, and in the case of Mrs Souris, on the ground of the race of a relative. It is alleged that the discrimination of the Applicants was unlawful under Section 20(2)(b) of the Anti Discrimination Act 1977 ("the Act") as the alleged discrimination subjected each of the Applicants to a detriment when they sought accommodation at the Kings Bay Complex at Five Dock on 7 July 2001. It is further alleged that on that date the Respondent unlawfully discriminated against the Applicants on the ground of the race of Mr Kimble, under Section 19 of the Act in the terms on which the Respondent provided services to the Applicants on that date.

2 In addition, the Applicants allege that the Respondent subjected them to racial vilification in breach of Section 20(C)(1) of the Act, in the circumstances arising during the incidents that occurred at the complex on 7 July 2001.

3 Each of the complaints was investigated by the President of the Anti-Discrimination Board ("the Board"). The Board attempted to resolve the complaints through conciliation but it was unsuccessful and has referred the complaints to this Tribunal under Section 94(1) of the Act for inquiry by the Tribunal.

RELEVANT PROVISIONS OF THE ACT

"7 What constitutes discrimination on the ground of race

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or ..."

"19 Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services."

"20 Accommodation

(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:

(a) by refusing the person's application for accommodation,

(b) in the terms on which the person offers the person accommodation, or

(c) by deferring the person's application for accommodation or according the person a lower order or precedence in any list of applicants for that accommodation.

(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:

(a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or

(b) by evicting the person or subjecting the person to any other detriment."

"20C Racial 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 person or group of persons on the ground of the race of the person or members of the group."

CIRCUMSTANCES RELATING TO THE COMPLAINTS

4 On 7 July 2001 the Applicants attended at the Kings Bay Complex at Five Dock. This was a complex of apartments and townhouses. The total complex was divided into several stages, of which Stage 1 was completed and fully occupied. Stage 1A was completed and partly occupied; Stage 2, was partly constructed and the other stages had not commenced to be constructed. In the centre of the complex was a swimming pool and common area. The Respondent produced to the Tribunal a design layout of the complex and also a series of photographs, which assisted in the understanding of the layout, and the relevant parts of the complex at which the events occurred that give rise to the complaint. It was part of the design of the complex, that mature native plants and trees be planted in the complex to add to its general appearance and to assist in providing privacy when looking from the balconies of the apartments and townhouses.

5 The Applicants stated that their purpose in attending the complex was to inspect apartments with a view to leasing an apartment and possibly but at a later stage, to purchase an apartment.

6 The Respondent was employed as an associate director of Nationwide Corporate, the owner of the complex. The Respondent described his role as a Team Leader of a group of sales agents, employed for the purpose of selling the apartments and townhouses. By 7 July 2001, 90% of the available units had been sold and at that time the Respondent was the only sales agent employed at the site. He stated that he held a licence as a Property Agent in Queensland and that he was registered by the Department of Fair Trading in New South Wales to act as a sales representative.

7 The Respondent distinguished his position and his role in the complex from that of Katherine Jontolovic. Ms Jontolovic was employed by Nationwide Corporate as a Leasing Agent. The Respondent stressed to the Tribunal, and the Tribunal accepts that, the two roles of Sales Agent and Leasing Agent were separate and distinct roles and that the Respondent had instructions from his principals that he was responsible only for sales and not for leasing of the units in the complex.

8 Mrs Souris stated that the Applicants attended the complex in response to an advertisement in the Sydney Morning Herald that day. The advertisement related to the availability of units for leasing in the complex. Mrs Souris stated that it was the Applicants' intention to move from their present accommodation at Camperdown and they were keen to inspect the units in the complex with a view to leasing a unit. Mrs Souris also stated that the Applicants had in mind that if they were able to take advantage of the First Home Buyers Grant of $14,000.00, that they would also be interested in buying a unit in the complex. Mrs Souris described a conversation with the Respondent in a lift in the building soon after they first met the Respondent, in which there was a short discussion about the availability of the First Home Buyers Grant and the range of prices at which units were available. The Respondent stated that the units that were then completed in the complex were priced in the range of $600,000.00 but that later in other stages units would be available from $390,000.00. That was the extent of the discussion about the Applicants interest at that time in the purchase of a unit. The Tribunal is not satisfied that on 7 July 2001 the Applicants attended with the intention of purchasing a unit. Rather it was their intention solely to examine units with a view at that time to lease a unit.

9 The subsequent events, on that date, confirm the view taken by the Tribunal that the actions of the Applicants in relation to Ms Jontolovic and Mr Orr were limited to the consideration of leasing a unit.

10 The Applicants parked their car in the public street outside the complex, on 7 July 2001. They walked into the complex along an internal driveway to a place where they saw Mr Orr outside a ground floor unit. On the pavement was placed two separate signs. One sign referred to units for sale and the second sign referred to units for lease. The Applicants approached the Respondent who introduced himself as the Sales Agent for the complex. Two other people were standing with the Respondent. The Respondent was standing outside a ground floor unit, which had the words `Sales Office' marked on the door. The Applicants told the Respondent that they wanted to inspect a unit with a view to leasing. The Respondent explained that he was not the Leasing Agent and that he was about to show the two people who were with him, units for sale. The Respondent stated that he would take the Applicants to the display unit on the 4th floor where the Leasing Agent, Ms Jontolovic would help them. The Applicants, with the Respondent and the two persons with him, then went by lift to the 4th floor to the display unit. The Respondent there introduced the Applicants to Ms Jontolovic. Mr Orr then attended to his purchaser clients and had no further contact at that stage with the Applicants or Ms Jontolovic.

11 Sometime later, Ms Jontolovic approached Mr Orr in the complex. She told Mr Orr that she was unable to locate the keys for the units that were available for lease and asked him if he knew where they were. Mr Orr told her that he had no knowledge of the whereabouts of those keys.

12 On 7 July 2001 the Respondent had the complex open for inspection for the sale of units between 1.00pm and 3.00pm. At 3.00pm he ceased his duties and he went to the unit that he occupied - Unit 26. That unit was situated on the first level in Stage 1. At approximately 3.20pm Mr Orr was sitting on the balcony of his unit when he heard the security buzzer for his unit ring. He went to the edge of his balcony and looked down to the pathway where he saw Ms Jontolovic and Mr Kimble. Ms Jontolovic told Mr Orr that she had locked herself out of the Sales Office and she requested that Mr Orr accompany Mr Kimble and she to the Sales Office to let them in so that Ms Jontolovic would have access to a set of keys for the units for lease. This Mr Orr proceeded to do. On the journey to the Sales Office, Mr Kimble told Mr Orr that he was getting frustrated with the days events as he and Mrs Souris had been on the site for approximately two hours and had not been able to see a unit. The Respondent opened the sales office where Ms Jontolovic opened the cabinet which contained the keys of units for lease and she took a set of the keys. It should be mentioned that in the office was a second cabinet which contained the keys of the units available for sale. The two sets of keys were kept separately.

13 The Applicants and Ms Jontolovic then proceeded to another section in Stage 1 where Ms Jontolovic attempted to gain access through the security door but found that the keys that she held were not able to open the door. She was then able to attract the attention of an occupier of one of the units in that section who came to the ground floor and opened the security door to give them access. Ms Jontolovic then found that the keys that she had were not able to open the unit that was available for lease in that section. At that time another occupier in that section, Mr White, approached the party and had a conversation with Ms Jontolovic and the Applicants. Mr White did not give evidence before the Tribunal. Mr White told the Applicants that he thought Mr Orr would be able to help them, as he would have keys that would open any of the units in the complex.

14 Mr Orr stated that he was sitting on his balcony at approximately 3.30pm when he again heard his security buzzer sound. When he went to look over the balcony to the pathway he saw Mr Kimble. He said that Mr Kimble was standing right beside the entrance foyer by the intercom system. Ms Jontolovic accompanied Mr Kimble. When Mr Orr asked Mr Kimble what he wanted he said that Mr Kimble insisted that he come down and get the keys to open the units for lease as the keys that Ms Jontolovic had just taken from the office, did not work. Mr Orr stated that he told Mr Kimble that he had no access to the keys and that he could not help him. Mr Orr stated that Mr Kimble then kept buzzing on his security buzzer and that Mr Kimble insisted that Mr Orr come down and help.

15 At this point there is a material difference between the evidence of Mr Kimble and the evidence of Mr Orr as to the contents of the conversation that occurred between them.

16 Mr Kimble stated that Mr Orr came to the edge of his balcony and looked down to Mr Kimble. Mr Kimble requested that Mr Orr come down and help with the keys and offer Ms Jontolovic some assistance. He said that he mentioned that it was her first week on the job and the situation was getting out of hand. He stated to Mr Orr that he had been there over 3 hours and he felt that Mr Orr being the Agent for the properties, could come down and assist. Mr Kimble said Mr Orr responded that he doesn't do leases. Mr Kimble then said that he could understand Mr Orr's position but as they had been there a long time and he really wanted to see a unit, he asked Mr Orr to help out. Mr Kimble said that Mr Orr responded:

"Fuck you don't you understand about what I've just said. I don't do leases."

17 Mr Kimble said he responded:

"Hold on, it's not OK for you to speak to me that way."

18 Mr Kimble said that Mr Orr responded:

"I'll speak to you any way I want to. I just said you don't know who I am, you don't know what my position is."

19 Mr Kimble said that Ms Jontolovic then said:

"No, let's leave it alone."

"We then walked away."

20 Mr Kimble said that he was steaming and furious and angry and he went back and told his wife:

"I don't want to live here. I don't like the way I was treated. I don't want to live here."

21 Mr Kimble said that at that stage he did not use the word `fuck'. In answer to questions from the Chairman requesting Mr Kimble to elaborate further on the conversation between he and Mr Orr on that occasion, Mr Kimble stated that when Mr Orr replied to him that he wasn't a leasing agent, Mr Kimble said surely though you would know what keys are which. Mr Kimble said it was then that Mr Orr said to him:

`What the fuck don't you understand about what I just said to you."

Mr Kimble said that he responded:

`It's not OK for you to speak to me that way. You don't know my position. You don't know who I am.'

Mr Orr then said:

`Fuck off.'

Mr Kimble stated that he responded:

`Go fuck yourself and fuck your mother.'

He said that is when Ms Jontolovic grabbed him by the arm and said that they should leave."

22 Mr Orr, in his evidence, described the events on that occasion in somewhat different terms. He said that he was sitting on his balcony and that Mr Barlow, a friend of Mr Orr, was also on the balcony, preparing a BBQ. Mr Orr said that he heard Mr Kimble call out to him. He said that he stood up and went to the side of the balcony and looked down to Mr Kimble and Ms Jontolovic. He said that Mr Kimble explained to him that the keys that they had just received did not work and that he had come to the end of his tether and that he was frustrated and that he asked if Mr Orr could assist him any further with keys. Mr Orr said that he explained to Mr Kimble that he did not have any access to the keys and that he could not give him any further assistance. He said that he also explained to Mr Kimble that he was then off duty and was preparing for his guests. He said that he then turned and went back to sit at his chair on the balcony. Mr Orr said that Mr Kimble then started repeatedly ringing on his security buzzer, which was situated adjacent to where Mr Kimble was standing.

23 Mr Orr stated that he then went back to the side of the balcony. He said he was feeling harassed by Mr Kimble's actions. Mr Orr said that he explained to Mr Kimble again that there was nothing that he could do for him. He said he asked Mr Kimble what part of what he had said Mr Kimble did not understand, and that he said to Mr Kimble he simply could not help him. Mr Orr said that Mr Kimble responded:

"Fuck you and go fuck your mother."

24 Mr Orr said that he did not respond to that comment. He said that Mr Barlow turned to him and said that he should forget it and let it go. Mr Orr said he was very shaken and very upset with the insult, particularly towards his mother. He said that he took Mr Barlow's advice and sat down. Mr Orr stated that Mr Kimble and Ms Jontolovic then left. In answer to a question from the Chairman, Mr Orr said that before he sat down he did say to Mr Kimble:

"Fuck you too."

25 Mr Orr denied that he had first said to Mr Kimble `fuck you' and he denied that he had provoked the abusive comment by Mr Kimble. Mr Orr said that Mr Barlow then went inside to shower and that Mr Orr took over the preparation of the BBQ.

26 We then come to the final occasion of an exchange between Mr Orr and Mr Kimble and Mrs Souris. This occasion also gives rise to a material divergence in the parties' evidence.

27 When Mr Kimble and Ms Jontolovic returned to where Mrs Souris and Mr White had remained talking in the foyer to the other section in the complex, Mr Kimble said that he did not wish to spend any further time at the complex and he and Mrs Souris and Ms Jontolovic walked along the pathway which led to the driveway in the complex. The driveway, then led into the street where Mr Kimble had parked his car. The route they took was the direct route to Mr Kimble's car but it led past the balcony of Mr Orr's unit. Mr Kimble stated that as they passed below the balcony of Mr Orr's unit, Mr Orr stood up and yelled down at Mr Kimble:

"Hey you fucking big fat black bastard. You say anything else about my mother again, I'll come down and cut your fucking throat, you fucking coon."

28 Mr Kimble said that his wife then told him not to say anything and that both his wife and Ms Jontolovic took his arms and led him to the driveway and to his car. Mr Kimble said that he shouted back to Mr Orr:

"Go fuck yourself."

29 Mr Kimble said that as his group walked away and was about 50-60 feet from Mr Orr's unit, that Mr Orr yelled out again:

"I'll see to it that you fuckers never live here."

30 Mr Kimble said that when Mr Orr was shouting to him, he noticed that a family of Asian people were on the balcony of a unit having a BBQ. He said that that unit was situated approximately 20 yards from Mr Orr's unit, across the other side of the driveway. Mr Kimble said that the Asian family were on the balcony during the first verbal altercation between Mr Orr and Mr Kimble. There was approximately 20 minutes between the two altercations.

31 Mr Kimble described the volume of Mr Orr's remarks to him as:

"Mr Orr shouted. He was pretty much screaming at me."

32 He said on the first occasion the remarks by Mr Orr were said in a `pretty moderate tone' but on the second occasion Mr Orr was shouting very loudly. Mr Kimble said he also noticed other people sitting on their balconies on the second occasion when Mr Orr made the alleged offending remarks. Mr Kimble said that he did notice about 3 people, who he thought were of Indian background, stood up on their balcony and looked. This latter group was about 10 yards away from the balcony where the Asian family were having their BBQ. He said that he saw that these people looked across in the direction of Mr Orr's balcony.

33 Mr Kimble acknowledged that on the two occasions when the altercations took place with Mr Orr, that Mr Orr had changed out of his business suit which he wore when he first met Mr Orr at the sales office and he was then wearing regular street clothing which he described as a T-shirt and a pair of denims.

34 After the last altercation, Mr Kimble described that he, Mrs Souris and Ms Jontolovic proceeded to walk down the driveway to Mr Kimble's car. Mr Kimble stated that when they were standing in the street outside his car, he looked back to the driveway and he saw Mr Orr sitting in a car at the entrance to the driveway and that Mr Orr was starring at Mr Kimble and his wife and Ms Jontolovic. Mr Kimble said that Mr Jontolovic was very nervous and they decided that they should leave immediately.

35 In her evidence, Mrs Souris in relation to the final occasion on which the altercation with Mr Orr took place, stated that the first words she heard as they passed Mr Orr's units were:

"You fat black bastard. What did you say about my mother?"

36 She stated that whilst saying this, Mr Orr was pointing down to his crutch. She said that Mr Orr then said:

"I'm going to come down and cut your big fat fucking throat, you big black coon. And I will see that you never live in this complex."

37 She said that Mr Orr was shouting very loudly and that he was yelling. She said that neither she nor Mr Kimble made any remark to Mr Orr. She said that Mr Kimble had been walking in front of her and Ms Jontolovic and that she went forward to Mr Kimble and told him not to say anything. She said that Mr Kimble just kept walking. In cross-examination, Mrs Souris agreed that after Mr Orr made these remarks that she gestured towards him by raising her middle finger at him.

38 Mrs Souris stated that at the time Mr Orr made these remarks, she noticed that there was a family of Asians having a BBQ on the balcony of a unit on the other side of the driveway. She estimated the distance between Mr Orr's unit and the unit at which the people were having a BBQ at approximately 20 metres. Mrs Souris also stated that she noticed other people about the complex at this time. She stated that she estimated there were a total of 20 people in and around the complex at the time Mr Orr shouted his remarks. The 20 people included the group of Asian people having a BBQ on their balcony.

39 In his evidence, Mr Orr denied that he made the remarks to Mr Kimble, which Mr Kimble alleged Mr Orr made to him on that occasion. Mr Orr said that parts of Mrs Souris' evidence of the occasion were correct and parts were not. He stated that Mrs Souris did make the offensive gesture towards him and that Mr Kimble also made a similar gesture towards him. He said they were making the gesture with both hands.

40 Mr Orr stated that Mr Barlow had left the balcony and gone inside the unit to shower and change and that he, Mr Orr, was attending to the BBQ. He said he was looking around to keep watch for his arriving guests. He said his attention was attracted to Mr Kimble and his group approaching below his unit because he heard Mrs Souris shouting obscenities towards him. He stated at that point the group were directly below the balcony of his unit. Mr Orr stated that when he looked below he saw both Mr and Mrs Kimble with their middle finger of both hands raised towards him and Mr Kimble shouted:

"Go fuck yourself."

41 He also said:

"Nobody in this complex likes you."

42 He stated that he did not recall making the gestures towards his crutch that was described by Mrs Souris.

43 Mr Orr stated that he spoke down to Mr Kimble and said:

"You're a blood rude bastard. If you ever say anything again about my mother I will have your tongue cut out."

44 Mr Orr stated he also said:

"Just piss off"

And that he called Mr Kimble:

"A fucking clown."

45 Mr Orr stated that at this stage he was dumbfounded and then rage set in. He stated that he was very upset and annoyed. He denied that he was shouting but agreed that he was speaking loudly.

46 Mr Orr denied that there was a family of Asian people having a BBQ on the balcony of the unit on the opposite side of the driveway. He stated that at that time the unit that the Applicants alleged was used by the Asian people for a BBQ had not yet been occupied. Mr Orr also denied that there were at least 20 people in or about the complex. Mr Orr stated that he recalled two people were on the balcony of the unit below his unit at the time of the last incident.

47 Mr Orr denied that after that incident he left his unit. He denied that he had taken his car and parked it at the end of the driveway or that he sat in the car and observed Mr Kimble, Mrs Souris and Ms Jontolovic whilst standing outside Mr Kimble's car in the street, opposite the entrance to the driveway.

48 Neither Ms Jontolovic nor Mr Barlow gave evidence before the Tribunal. The Applicants filed with the Tribunal an Affidavit setting out their unsuccessful attempts to locate Ms Jontolovic. She had previously lodged a Statement with the Board. The Statement was included in the President's report to the Tribunal. In the face of an objection from Mr Orr, the Tribunal did not allow that statement to be put into evidence, in the absence of Ms Jontolovic. Mr Orr explained that Mr Barlow was unable to attend to give evidence as he had recently taken up a position of independent consultant in the building development field and had received a commission for his services and that Mr Barlow did not wish to prejudice that appointment by having to spend time attending the Tribunal. The Tribunal has taken the view that Mr Barlow was a personal friend of Mr Orr and that Mr Barlow's refusal to attend the hearing justified the Tribunal in taking the view that had he attended, his evidence would not have been of assistance to Mr Orr.

FINDINGS ON THE EVIDENCE

49 In the aspects of the evidence in which there are material divergence between the versions of the two incidents that occurred when Mr Orr was on the balcony of his unit, the Tribunal is satisfied:

That on the occasion when Mr Kimble and Ms Jontolovic went together to approach Mr Orr to assist in locating the keys to units available to lease, that Mr Kimble and Mrs Souris had been involved with Ms Jontolovic for a period of approximately 2 hours in which Ms Jontolovic had been unsuccessfully endeavouring to locate the correct keys to allow access to units for inspection by Mr Kimble and Mrs Souris. Mr Kimble was irate that Ms Jontolovic, the letting agent, was so incompetent in fulfilling her role, that she required some additional assistance if he was to have an inspection of the unit that afternoon. He saw the Respondent, Mr Orr, as another employee of Nationwide Corporate, the owner of the complex, and he expected Mr Orr to provide further assistance to he and Ms Jontolovic in that endeavour. Mr Kimble was not prepared to understand Mr Orr's position. Mr Orr was not responsible and had no role in the letting of units. Mr Orr by 3.00pm that afternoon was no longer on duty. At that time he had reverted to his residence, albeit a unit in the same complex, where he had changed from his business suit into his casual clothes and was preparing a BBQ in anticipation of guests arriving for a meal. He had earlier interrupted those preparations, at Ms Jontolovic's request, by accompanying her to the Sales Office where he assisted Ms Jontolovic to obtain a set out keys relating to rental units.

Mr Kimble was in no mood to see or to understand the distinction between the role of Mr Orr at 3.20pm that afternoon from the position of Ms Jontolovic. Mr Kimble's patience had expired and he was insisting that Mr Orr further assist Mr Kimble and Ms Jontolovic in a way that was not explained, to make further attempts to find keys that would open the rental units.

When Mr Orr, speaking down from his balcony, became irate with Mr Kimble's persistence that Mr Orr assist Mr Kimble, Mr Kimble responded by persistently buzzing Mr Orr's unit. Mr Orr at that stage also lost patience. The result was Mr Orr and Mr Kimble engaged in a mutually abusive and offensive tirade. Both parties were shouting and both parties made unfortunate and regrettable statements using foul and offensive language. Neither party comes out of that exchange with distinction. It is the view of the Tribunal that Mr Kimble's actions and abuse provoked Mr Orr into making his response. If the matter had stopped at that point, the Tribunal does not discern that any discriminatory conduct had occurred.

The last occasion of a verbal altercation, when Mr Kimble and his party were leaving the complex, was also a regrettable situation. The Tribunal accepts the version of the events as described by Mr Orr. In particular, the Tribunal accepts that Mr Kimble started the altercation by shouting at Mr Orr and when Mr Orr looked over his balcony, both he and Mrs Souris raised their hands with their middle finger pointing upwards. These were provocative statements and acts by the Applicants.

The Tribunal further accepts that Mr Orr was enraged by this conduct, especially following the earlier altercation. Although the abuse by Mr Kimble and the actions by he and Mrs Souris provoked Mr Orr, in the view of the Tribunal, Mr Orr responded in a racially discriminatory manner. The Tribunal is satisfied that in his response Mr Orr referred to Mr Kimble as `a black bastard' and `a coon'. These phrases are obviously racially unacceptable.

It is understandable in the circumstances that Mr Kimble was upset by the remarks that were directed at him. He stated that he grew up in Birmingham Alabama. His father was the first black Mayor appointed to that city. He stated that when he was growing up in Birmingham that the United States of America was a very racist country and the area in which he grew up was very racist. He said although he saw a lot and heard a lot of racial abuse, that he personally never experienced it. He was shocked when he experienced the direct racist comments by Mr Orr.

The Tribunal is satisfied that the provocation which Mr Orr experienced on this occasion, does not justify or excuse the hurtful racial comments that he directed at Mr Kimble at that time. In the view of the Tribunal the Applicants have established that those racist remarks were discriminatory, under Section 7(1)(a) of the Act, and that they were made by Mr Orr on the ground of the race of Mr Kimble. The remarks were discriminatory both of Mr Kimble and also of Mrs Souris.

In relation to Mrs Souris, Mr Orr subjected her to less favourable treatment by the racially abusive remarks he directed at Mr Kimble in her presence. In similar circumstances Mr Orr would not have treated a person whose husband was of a different race. That discriminatory conduct of Mrs Souris by Mr Orr, in the view of the Tribunal, was on the ground of the race of her husband, Mr Kimble.

The racially abusive remarks directed by Mr Orr to Mr Kimble were made by Mr Orr when he was standing on the edge of the balcony of his unit and were directed to Mr Kimble who was standing below on the pathway. The distance between Mr Orr and Mr Kimble was approximately 12 metres. It would be necessary, in the view of the Tribunal, for Mr Orr to project his voice to Mr Kimble in order to be heard. Mr Orr denies that he was shouting the words but he agreed that he spoke loudly. Mr Orr also agreed that at that time he was enraged.

The Tribunal is satisfied that having regard to the provocation of Mr Orr by the comments and gestures to which he was subjected, Mr Orr would have shouted loudly when he was addressing Mr Kimble. It is the view of the Tribunal that the racially abusive remarks made by Mr Orr would have amplified into and around the centre of the complex and would have been heard by persons within a considerable distance from Mr Orr's unit.

The Tribunal accepts the evidence of Mr Kimble and Mrs Souris that there was an Asian family having a BBQ on the balcony of their unit which was situated across the driveway from Mr Orr's unit. Having regard to the design plan of the complex which was exhibited to the Tribunal by Mr Orr, the distance to the unit on which the Asian family was having a BBQ was approximately 45 metres. The line of sight between Mr Orr's unit and the family having a BBQ was obstructed by a large tree growing adjacent to Mr Orr's unit. Notwithstanding the visual obstruction between the units, the Tribunal is satisfied that the loud shouting of the abuse by Mr Orr would have been heard by those persons on the balcony across the driveway. In addition, the Tribunal accepts the evidence that there were some persons walking in and about the complex about that time and that there were persons on balconies, at least on the balcony below Mr Orr and possibly on balconies above him. Those persons would have been able to hear the abuse that was shouted by Mr Orr. The Tribunal is satisfied that the circumstances in which the racial abuse was directed at Mr Kimble on that occasion, constituted a public act for the purposes of Section 20C(1) of the Act.

WAS THE DISCRIMINATION UNLAWFUL?

50 The Tribunal has found that the Respondent discriminated against the Applicants under Section 7(1)(a) of the Act. It is necessary to consider the submission of the Applicants, that the discrimination was unlawful under Section 20(2)(b) of the Act and under Section 19 of the Act.

51 In terms of Section 20(2)(b), the Applicants described the hurt and humiliation they experienced as a result of the racial abuse directed at Mr Kimble by the Respondent. The adverse impact on the Applicants of the Respondent's conduct constitutes a detriment to which they were subjected. It is not however, sufficient to render discrimination unlawful under Section 20 of the Act to establish the discriminatory conduct caused detriment to the Applicants. For the discrimination to be rendered unlawful under Section 20(2)(b), the detriment to which the Applicants were subjected must have occurred in connection with accommodation in which the Applicants and the Respondent were associated. It is not sufficient, in the view of the Tribunal, that the Applicant suffer detriment as a result of conduct of the Respondent. The detriment must arise as a result of the association between the Applicants and the Respondent in which the Respondent was either participating as principal or agent and must be associated with accommodation for the Applicants. In the context of Section 20, accommodation is confined to the occupation of property by persons who are not the owners of the property. The section therefore has no application to sale or purchase of property.

52 In this complaint, the evidence establishes that the Respondent was not employed by Nationwide Corporate as a letting Agent. His role was confined to the sale of apartments in the Kings Bay complex. The evidence further establishes that except for the occasion when, by way of courtesy, the Respondent accompanied Ms Jontolovic to the sales office to enable her to have access to keys of units in the cupboard relating to units for lease, the Respondent subsequently strongly resisted the requests of Mr Kimble and Ms Jontolovic to provide further support to Ms Jontolovic in gaining access to units for lease. The Respondent ceased his duties as a sales agent at the complex at 3.00pm on the afternoon of 7 July 2001. He then went to the unit which he owned in the complex where he changed out of his business suit into casual clothes and proceeded to prepare a BBQ for guests that he was expecting later in the afternoon. He was clearly off duty at the time when Mr Kimble approached him for further assistance.

53 In the view of the Tribunal, at approximately 3.30pm on the afternoon of 7 July 2001, Mr Orr responded to the provocations he had received through the actions of the Applicants, by directing racially abusive remarks to Mr Kimble, that conduct did not take place on the context of Mr Orr being associated, in the relevant sense, with the accommodation needs of the Applicant. It is not appropriate to regard the discriminatory conduct of Mr Orr towards the Applicants on that occasion, as unlawful under Section 20(2)(b) as the detriment that was caused the Applicants as a result of that conduct, was not associated with Mr Orr acting as agent in relation to accommodation associated with the Applicants.

54 Accordingly, the Tribunal directs that a claim of unlawful discrimination against the Respondent under Section 20(2)(b), be dismissed.

55 It is then necessary to consider whether the discriminatory conduct of the Respondent was unlawful under Section 19 of the Act. That section provides that it unlawful for a person who provides goods or services to discriminate against another person on the ground of race either by refusing to provide the person with those goods or services, or, in the terms of which the other person is provided with those goods or services (the underlining is added for emphasis). It is clear from the terms of the section that discriminatory conduct will be unlawful under that section only if the services provided by a person are the same services which are refused or if it is those services that are provided on terms which are discriminatory.

56 In the circumstances of this complaint, for the reasons earlier expressed, the Respondent acted as agent for the purposes of selling apartments in the complex. He did not act as agent for the leasing of units in the complex. These two services were distinct under the arrangements made by Nationwide for the selling and leasing of the apartments.

57 Although the Applicants stated that they had an intention if they liked living in the complex to subsequently buy an apartment, and that they had a conversation with the Respondent in the lift about the range of prices for which apartments could be purchased and about the likely availability of the First Home Buyer Grant to assist the Applicants, the Tribunal determines that the purpose of the Applicants on 7th July 2001 in attending at the complex was to inspect units for the purpose of leasing. Pursuant to that intention, they concentrated their efforts with Ms Jontolovic in order to gain access to apartments that were available to lease. It is the view of the Tribunal that it is not appropriate to regard the Respondent, on that day, as a person who provided services, which he refused to provide to the Applicants or who provided the services on terms which were discriminatory. The Respondent did not act as an agent for the leasing of the apartments to the Applicants on that afternoon nor did he provide services as an agent for the leasing of the apartments, which could be construed as providing the terms on a discriminatory basis to the Applicants. The Tribunal is satisfied that when the abusive conduct of the Respondent to the Applicants occurred, that conduct was not associated with the provision by the Respondent of services to the Applicant.

58 Accordingly, the Tribunal determines that the claim of unlawful discrimination, under Section 19 of the Act, is not substantiated. The Tribunal directs that that claim be dismissed.

RACIAL VILIFICATION

59 The Tribunal has found that at approximately 3.30pm on the afternoon of 7 July 2001, the Respondent subjected the Applicants to racial and offensive abuse. This abuse took place when the Respondent was outraged by provocation directed at him by the Applicants. The Respondent directed the abusive and offensive language in a very loud voice. The Tribunal is satisfied that the Respondent shouted the abuse at the Applicants who were standing below the balcony of his apartment at a distance of approximately 10-12 metres. For the reasons earlier expressed, the Tribunal has found that the shouting of the abusive and offensive language took place in circumstances that constituted a public act as defined in Section 20B of the Act and accordingly came within the provision of Section 20(C)(1) of the Act. In order for the public act to be unlawful under Section 20(C)(1), it is necessary for the Tribunal to be satisfied that the public act of the Respondent, was capable of inciting hatred towards, serious contempt for or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

60 It is not alleged that Mrs Souris, although a member of group of 3 people standing below the balcony at the time, was a person who on the ground of her race, was subjected to the public act. The Tribunal finds that the allegation of unlawful racial vilification of Mrs Souris by the Respondent cannot be established, as the alleged act did not occur on the ground of her race.

61 In relation to Mr Kimble, it is clear that the public act complained of took place on the ground of his race. The nature of the racial abuse directed at him by the Respondent clearly shows that it was the fact that Mr Kimble was of the Afro-American race, that directed the Respondent to make the offensive remarks about Mr Kimble.

62 In order to complete the requirements of Section 20(C)(1) for the public act to be unlawful, it is necessary for the Tribunal to be satisfied that the public act of shouting the racial abusive comments by the Respondent to Mr Kimble, was likely to incite hatred towards, serious contempt for or severe ridicule of Mr Kimble. The construction and meaning of Section 20(C)(1) of the Act has been canvassed in several recent decisions in the Tribunal. Veloskey & Anor v Karagiannakis & Ors [2002]NSWADTAP18; and Western Aboriginal Legal Service Ltd v Jones & Anor [2000]NSWADT 102. The decision of the Appeal Panel in the Veloskey matter contained a thorough review of earlier cases including the decision in the Jones matter. The following principles for the application of the section, can be extracted from the Veloskey decision:

The word "incite" should be given its ordinary English meaning, namely, to urge, spur on, stir up, animate, stimulate, or prompt to action. It is not sufficient if the words merely convey hatred or express serious contempt or severe ridicule.

The section does not require proof of an intention to incite on the part of the perpetrator of the vilification.

It is not necessary that the applicant prove that a person or persons were actually incited by the public act to respond in the requisite manner.

In determining whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race, the approach taken to the characterisation of the audience for these purposes is crucial.

Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader [listener] understand from the public act that he/she is being incited to hatred towards or serious contempt for, or serious ridicule of a person or persons on the ground of race? The question is not, could the ordinary reasonable reader [listener] reach such a conclusion after his/her own beliefs have been bought into play by the public act?

Race must be `a substantially contributing factor' to be incitement. It is not sufficient if there are other, equally consistent grounds, for the incitement given that Section 4A of the Act does not apply to the vilification provisions.

The social and historical context of a public act, including the factors referred to in the case of Kazak v John Fairfax Publications Ltd [2000]NSWADT77, may be relevant at some stage of an inquiry, albeit only to the extent that they may be presumed to be part of the ordinary reasonable reader's [listener's] knowledge and experience of human affairs.

63 It is clear from these statements of the construction of Section 20(C)(1) that it is not relevant to determine that the offensive remarks were provoked by the conduct of the Applicants. The Tribunal is satisfied that the nature of the remarks and the circumstances establish that the remarks were made on the ground of the race of Mr Kimble.

64 Applying the ordinary English meaning to the word `incite' to the circumstances of the loud shouting of the abusive and offensive words to Mr Kimble, in the opinion of the Tribunal, the flow of abusive language would have been heard by a number of the people who were in and around Mr Orr's apartment, including the group of Asian persons having a BBQ on the opposite side of the driveway from Mr Orr's apartment. The Tribunal is of the view that the racial and offensive language was capable of inciting hatred towards and serious contempt for and severe ridicule of Mr Kimble. It is not necessary to establish that a person or persons were actually incited by the public act. It is sufficient in the circumstances of this complaint that the Tribunal is satisfied that the racially abusive words were capable, in an objective sense, of inciting persons who heard the words to feel hatred towards or serious contempt for or severe ridicule of Mr Kimble.

65 The Tribunal is satisfied that the complaint of unlawful racial vilification of Mr Kimble by the Respondent is substantiated.

REMEDIES

66 In relation to the claims of unlawful racial discrimination and unlawful racial vilification brought by Mr Kimble and Mrs Souris against the Respondent, the Tribunal finds that only the claim of unlawful racial vilification of Mr Kimble by the Respondent is substantiated. The Tribunal accordingly directs that each of the other claims by Mr Kimble and Mrs Souris be dismissed.

67 It is necessary then to consider what orders are appropriate to be made for the unlawful vilification of Mr Kimble.

68 Mr Kimble seeks two remedies, namely the publication of an apology by the Respondent and secondly, the payment of compensation for the hurt and humiliation suffered by him.

69 Having regard to the acts of provocation by Mr Kimble and Mrs Souris of the Respondent which gave rise to the unlawful vilification, the Tribunal considers that it would not be appropriate to direct that Mr Orr publish an apology for the vilification. Mr Kimble and Mrs Souris must bare some responsibility for their unjustified loss of control which led to the Respondent reacting in the way he did when he directed the abusive and offensive language at them. The Tribunal considers that it would not be appropriate in those circumstances for the publication of an apology.

70 Mr Kimble also seeks an award of monetary compensation for his feelings of hurt and humiliation suffered as a consequence of the unlawful vilification by the Respondent. Mr Kimble stated that one of the reasons that prompted him to take up residence with Mrs Souris in Australia after their marriage, was the expectation that he would not experience the attitudes which during his early life in Birmingham Alabama he had witnessed, particularly during the anti-segregation movements in that State. Up until the experience on the afternoon of 7 July 2001, Mr Kimble had realised his expectations of freedom from racial abuse.

71 He stated that he found after the experience on that afternoon he no longer felt that he could be relaxed about such freedom in the local Australian community. The Tribunal was satisfied that in expressing his deep feeling of hurt as a result of the vilification to which he was subjected by the Respondent and his subsequent unease about suffering further racial abuse in social and business life in Australia, Mr Kimble was sincere and that he held a genuine concern about the future prospects of being able to lead a life free from abuse in the local community.

72 Were it not for the provocation that arose out of the actions of Mr Kimble towards the Respondent, the Tribunal would be persuaded to make an award in an amount greater than which it considers is appropriate after taking into account that provocation. The Tribunal considers that in the circumstances, an award of compensation in the sum of Two thousand dollars ($2,000.00) is an appropriate amount to give recognition to the fact that Mr Kimble suffered vilification but recognises that the vilification that he suffered would not have occurred had he acted in a more restrained and less provocative manner towards the Respondent. The Tribunal directs that the Respondent pay to Mr Kimble an amount of $2,000.00.

73 There will be no order as to costs.