Carter v Brown [2010] NSWADT 109 (6 May 2010)

Last Updated: 13 May 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Carter v Brown [2010] NSWADT 109


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Brian Carter

RESPONDENT
Jason Brown (071092)
Rodney Fisher (081139)



FILE NUMBERS:
071092, 081139

HEARING DATES:
22 and 23 February 2010

SUBMISSIONS CLOSED:
23 February 2010



DATE OF DECISION:
6 May 2010

BEFORE:
Furness G - Judicial MemberLowe A - Non-Judicial MemberWeule B - Non-Judicial Member





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
Kimble v Souris [2003] NSWADT 49.
Western Aboriginal Legal Service Ltd v Jones &Anor [2000] NSWADT 102
Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Harou-Soudon v TCN Channel Nine Pty Ltd [1994] EOC 92-604
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
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Sharma v Legal Aid Queensland [2002] FCAFC 196 at [40]. 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 [at 16]
Trad v Jones & anor (No. 3) [2009] NSWADT 318
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42
Hill v Water Resources Commission (1985) EOC 92 - 127 at 76, 290
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Daniels v Hunter Water Board (1994) EOC 92-626
Harriton v Stephens [2004] NSWCA 93 at [7] Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22
Haines v Bendall [1991] HCA 15; (1990) 172 CLR 60 at 63
Bhattacharya v Department of Public Works (1984) at 76, 133

TEXTS CITED:


APPLICATION:
Equal Opportunity- homosexual vilification- victimisation – award of damages - apology

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
K Eastman, barrister

RESPONDENT
Mr Vincent, barrister for J Brown
Rodney Fisher in person



ORDERS:
1.We order that the respondent Jason Brown pay the applicant $20,000 by way of compensation for the loss suffered by reason of the respondent’s conduct
2.We order that the respondent Rodney Fisher pay the applicant $15,000 by way of compensation for the loss suffered by reason of the respondent’s conduct
3.We order that each respondent publish the following in the press and online publication of the Western Advocate within a period of one month from the date of service of these orders on each respondent."I, Jason Brown hereby apologise unreservedly to Brian Carter for my speech and conduct which has been found by the Administrative Decisions Tribunal to constitute vilification in contravention of the Anti-Discrimination Act and which has brought him unnecessary distress. This apology is given in accordance with orders made by the NSW Administrative Decisions Tribunal.""I, Rodney Fisher hereby apologise unreservedly to Brian Carter for my speech and conduct which has been found by the Administrative Decisions Tribunal to constitute vilification and victimisation in contravention of the Anti-Discrimination Act and which has brought him unnecessary distress. This apology is given in accordance with orders made by the NSW Administrative Decisions Tribunal."
4.We also make an order enjoining each respondent from continuing or repeating any of the speech or other conduct which we have found to constitute vilification in the case of Jason Brown and vilification and victimisation in the case of Rodney Fisher.
5.In relation to the application for the payment of disbursements we do not find that any of the paragraphs of s.88 (1A) of the Administrative Decisions Tribunal Act justify an award of the cost of the applicant’s disbursements for the day of hearing which was vacated.


Reasons for Decision:

REASONS FOR DECISION

Introduction and procedural matters
1 Brian Carter, the applicant made five complaints against Jason Brown to the Anti Discrimination Board (the Board); three complaints of homosexual vilification and two of victimisation. They were made on 28 September 2006, 4 April 2007 and 23 May 2007 and the periods of the complaints were, respectively 15 August 2006 to 28 September 2006, 26 November 2006 to 4 April 2007 and 3 May 2007. On 21 November 2006, the Board wrote to Mr Brown and provided him with details of the first complaint. On 26 April 2007, the Board wrote to Mr Brown and provided him with details of the second complaint.

2 Those complaints were referred to the Administrative Decisions Tribunal (the Tribunal) on 23 August 2007.

3 The applicant made three complaints against Rodney Fisher to the Board, two complaints of homosexual vilification and one of victimisation. They were made on 4 April 2007, 16 July 2007 and 30 July 2008 and the periods of the complaints were March 2006 to 23 July 2008. On 20 September and 4 December 2007, the Board wrote to Mr Fisher and provided him with details of, respectively, the first and second complaints.

4 Those complaints were accepted by the Board and were referred to the Tribunal on 24 December 2008.

5 On 17 March 2009, the Tribunal ordered that the two sets of complaints be heard concurrently and all parties were informed that they may give their evidence orally.

6 The matter was initially set down for hearing on 10 August 2009. On that occasion the hearing was adjourned when it became apparent that Jason Brown had received a grant of legal aid in relation to the complaints but had not yet received legal advice and was not represented.

7 At the hearing in February 2010, Jason Brown was represented, as was the applicant. Rodney Fisher had no legal representation. Neither of the respondents called any witnesses in support of their defence of the complaints. Rodney Fisher relied upon a number of affidavits he had sworn in response to the applicant’s complaints and the submissions he had made to the Board. He also gave oral evidence.

8 Jason Brown had provided no response to the Board and, in the Tribunal, tendered two photographs of his and the applicant’s dwelling, in his case. He also gave oral evidence.

9 The applicant’s evidence is referred to in the course of the reasons for decision.

Homosexual vilification
10 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 Act 2005 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.

11 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.

12 "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).

13 We adopt the approach taken in Z v University of A & Ors (No 7) [2004] NSWADT 81 in relation to the interpretation of this provision. In that case the Tribunal stated as follows:

while it is not necessary that a member of the public actually saw the impugned conduct or heard the communication, the conduct or communication must be capable of being seen or heard, without undue intrusion, by a non-participant to constitute a public act. Thus 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: see Kimble v Souris [2003] NSWADT 49. ...

101 Guidance as to the meaning of the words ‘which incites’ can be found in the Tribunal decisions which have considered the meaning of these words in the context of the racial vilification provisions of the ADA. See Western Aboriginal Legal Service Ltd v Jones &Anor [2000] NSWADT 102; Veloskey &Anor v Karagiannakis & Ors [2002] NSWADTAP 18; John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35. The Appeal Panel in Veloskey held that the word ‘incite’ should be given its ordinary English meaning, namely, to urge, spur on, stir or stir up, animate, stimulate, or prompt to action. Thus it is not sufficient if the words merely convey hatred or express serious contempt or severe ridicule. [at 21]

102 The preponderance of authority is that s 49ZT (1) does not require proof of an intention to incite and that it is not necessary to prove that anyone was actually incited to respond in the requisite manner. In Veloskey the Tribunal held:

‘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. [at 26]

...

Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader 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 race? The question is not, could the ordinary reasonable reader reach such a conclusion after his/her own beliefs have been brought into play by the public act? [at 28]

103 In the context of the homosexual vilification provisions of the ADA, the question is, could the ordinary reasonable 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 homosexuality? Consistent with the approach adopted in Harou-Soudon v TCN Channel Nine Pty Ltd [1994] EOC 92-604, the hypothetical ordinary reasonable listener is as an ordinary reasonable person not immune from susceptibility to incitement, nor holding prejudiced views of homosexuals.

104 The public act must be capable, in an objective sense, of inciting hatred towards, serious contempt for, or severe ridicule of, a person or persons. These words are to be given their ordinary dictionary meaning. The Tribunal at first instance in Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 set out the following definitions:

‘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). [at 40]

105 The reactions specified in paragraph 104 above must be aroused on the ground of the homosexuality of the person or group of persons said to be vilified by the public act. Homosexuality must be ‘a substantially contributing factor’ or ‘an operative ground’ of the incitement. (See O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 respectively.) Section 4A of the ADA does not apply to the vilification provisions. Hence it is not sufficient if there are other, equally consistent, grounds for the incitement: Veloskey at 30.

14 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.

15 Neither respondent relied upon any statutory defence, and accordingly, this decision will not make reference to those defences.

Onus and Standard of Proof
16 In JM and JN v QL and QM [2010] NSWADT 66, the Deputy President stated:

It has often been said in the context of anti-discrimination complaints, that when determining whether an applicant has discharged this onus, the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 should be applied: Sharma v Legal Aid Queensland [2002] FCAFC 196 at [40]. Recently, in Qantas Airways v Gama [2008] FCAFC 69 the Federal Court (Branson J at [139]) said that the application of ‘the Briginshaw standard’ is likely to lead a trier of facts into error:

The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.

16 Although not bound by the rules of evidence, we consider this to be the correct approach. Section 140 of the Evidence Act 1995 states that:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

17 We agree with and adopt that approach.

The vilification complaints against Jason Brown
18 From 1997, the applicant lived in a house which was part of a Department of Housing complex in a town in regional NSW. At the time of the events described in the complaints, he was living with his adult son. In about 2004 Jason Brown moved to a unit in the same complex and across the road from the applicant. Mr Brown’s unit had a balcony which, while not directly facing the applicant’s property, could be seen from the applicant’s front lawn, driveway and the rooms which faced the road.

19 The applicant gave evidence that there were 15-20 steps between his house and Mr Brown’s unit.

The first complaint
20 The applicant gave evidence that on 15 August 2006, Jason Brown approached him at the front of his, the applicant’s house and called him a "faggot", told him to "get a big hard dick up my arse" and that he was going to "take care of me" because "my days are numbered".

21 The applicant gave evidence that he took the words used by Jason Brown to him as a threat.

22 The Police were called and attended and the applicant gave evidence that he heard Jason Brown say to the police "He’s just a faggot anyway."

23 The applicant gave evidence that Jason Brown then ran through the grounds of the units yelling "I got the faggot, I got the faggot" and told a woman who lives in a unit near where he lived, Thelma Barnes, that she is nothing but a "filthy slut" and that she must be "taking it up the arse from Brian because he is so nice to her."

24 The applicant’s son, Nathan Carter gave evidence that in August 2006 he was in the front yard with the applicant and heard Jason Brown say to the applicant "faggot, go get a big hard dick up your arse...your days are numbered and I’ll take care of you".

25 Thelma Barnes gave evidence that on 15 August 2006 she saw Jason Brown running through her building swearing and yelling out to Rodney Fisher, who lived upstairs from her. She said Jason Brown yelled "Rod-Rod, the faggot across the road with the red car is parked in the bay". Jason Brown called her, Mrs Barnes "you old bitch, you old fag" and "you let the faggot fuck you up the arse". He had also said to her that the applicant had cameras.

26 Mrs Barnes remembered the words used because she wrote it in her diary. She had a fire in her unit recently and the diary was destroyed.

27 The oral evidence of each of these three witnesses was consistent with their sworn statements. Each was cross examined.

28 A COPS entry for that day was tendered and it refers to the two participants, the applicant and Jason Brown "exchanging comments about each other’s sexuality".

29 Jason Brown gave evidence and denied saying the words attributed to him by the applicant, his son and Mrs Barnes, with the exception that he admitted saying to Mrs Barnes that the applicant had cameras on his house.

The second complaint
30 The applicant made his first complaint to the Board on 28 September 2006. The second complaint was about a number of incidents as set out below which occurred after the first complaint was made.

31 The applicant gave evidence that on 26 November 2006, he drove past the flat complex where Jason Brown lived and saw him gesture at him using his middle finger and that he appeared to be screaming at him, although he could not hear him. When cross examined, he said that Jason Brown was outside his unit.

32 The applicant gave evidence that on 4 December 2006 at about 11am and on 5 December at about 10am he saw Jason Brown standing on his balcony looking at him and clapping.

33 The applicant gave evidence that on 18 December 2006 he was standing out the front of his house, half way down the driveway when his step-father, Allan Smith parked in the visitor’s car park. Jason Brown came onto his balcony and said "you and your faggot friend are going down."

34 The applicant gave evidence that on 27 January 2007 at about 4.40pm he was driving along the street in which Jason Brown lived and Jason Brown began tailgating his vehicle and he saw him gesturing at him and blowing his horn.

35 The applicant gave evidence that on 15 February 2007, while in his car, he saw Jason Brown driving in the opposite direction, shaking his fists and yelling "poofter" out the window.

36 The applicant gave evidence that on 24 February 2007, while driving, he saw Jason Brown driving with another person in the car and they both gestured to him with their middle finger.

37 The applicant gave evidence that on 5 March 2007 he saw Jason Brown, Rodney Fisher and a third person standing in front of the unit block and he heard Jason Brown yell at him "fucking faggot cunt". Rodney Fisher signalled to him with his middle finger.

38 The applicant gave evidence that on 7 March 2007 while at a local KFC he spoke to a female work colleague. After that conversation he saw Jason Brown approach her. The next day the work colleague told him that Jason Brown had said to her "this guy is gay...you should keep your children away from rockspider gays". In cross examination, the applicant agreed that he did not hear the exchange between Jason Brown and his work colleague.

39 The applicant gave evidence that on 8 March 2007 at about 9.20am he was driving down the street on which Jason Brown lived and drove past him and another person, both of whom yelled abuse and gestured at him with their middle fingers. In cross examination, he said they were standing in front of the units.

40 The applicant gave evidence that on 16 March 2007, while driving a bus, he saw Jason Brown in his car and that he yelled abuse and gestured at him with his middle finger.

41 The applicant gave evidence that on 22 March 2007 at about 10.55am he saw Jason Brown and another person, both of whom yelled "faggot" and gestured at him with their middle fingers as he drove past. On that same day he saw Jason Brown on his balcony apparently taking photographs of the applicant and his family.

42 The applicant gave evidence that on 30 March 2007, while driving he saw Jason Brown make a pistol sign with his hand as he passed him in a car. He agreed in cross examination that Jason Brown was being offensive.

43 The applicant gave evidence that he had been informed that Jason Brown and Rodney Fisher had approached new neighbours and informed them of his homosexual status and said he was a "dirty faggot" and "rockspider".

44 Nathan Carter gave evidence that he saw the events described by the applicant on 26 November, 4 and 5 December, 27 January, 15 and 24 February, 5, 8, 22 and 30 March 2007. His evidence was consistent with the evidence given by the applicant. Mr Carter said that he had made notes on his computer, which he had retained, concerning these events. He was not called upon to produce those notes.

45 Malcolm Corner lived in the same complex as the applicant. He had made a statement, however, he was not available to give evidence. An objection was made to the tender of his statement, following which, two paragraphs were not read. The objection was then withdrawn to the remainder of the statement which was tendered. In the tendered statement, Mr Corner said that in 2006 on two occasions, he heard Jason Brown call the applicant a "faggot" and a "pain in the arse". He also heard Jason Brown call the applicant and his son "you pair of fags’.

46 Allan Smith, the applicant’s step-father made a statement in which he said that in the last two years he had seen Jason Brown harassing the applicant a number of times from his balcony and several times seen him lean over his balcony and call out.

47 Judith Smith, the applicant’s mother made a statement in which she said that in March 2007 she was standing in the front yard and saw Jason Brown take photographs of her family. Neither Mr nor Mrs Smith was required for cross examination and no objection was made to their statements being tendered.

48 Rodney Fisher gave evidence. He said, in relation to those incidents where it was alleged he was present, nothing was said or done as alleged.

49 Jason Brown gave evidence and denied that he acted as alleged on each occasion. He gave evidence of an itchy head on occasions which, he said may have been interpreted as making a gesture.

The third complaint
50 The applicant made his second complaint to the Board on 4 April 2007. His third complaint concerned incidents he alleged occurred after making that complaint.

51 The applicant gave evidence that on 3 May 2007, he and his son were in their driveway and he heard Jason Brown say "you’re a dead dog cunt... I’m gonna fucking kill you cunt... Go suck another dick you pair of faggot cunts...you’re nothing but a backstabbing cunt... You’re just a pair of faggots." He agreed in cross examination that Jason Brown was being offensive.

52 Nathan Carter gave evidence that he was present on this occasion and heard Jason Brown say the words attributed to him by the applicant.

53 Jason Brown denied the allegation.

Other evidence
54 Following evidence from the applicant that he had kept a contemporaneous record on his computer of the events the subject of each complaint, those records were called for, produced and tendered. More will be said about this evidence later in this decision.

55 On 14 November 2007, the Tribunal held a case conference at which the applicant and Jason Brown attended by telephone. On that occasion, the applicant gave evidence that Jason Brown said "I will fucking kill Brian, the cunt." The applicant’s son gave evidence that he was present with him when he made the call and corroborated the applicant’s account. Jason Brown admitted to this Tribunal that he had used those words. This incident does not form part of the complaint of homosexual vilification, however, we have had regard to this evidence in determining its factual findings about the complaints against Jason Brown.

Complaints of incidents which occurred outside the period of complaint
56 The applicant gave evidence about events which occurred after the complaints were made to the Board and after the complaint was referred to the Tribunal. Counsel for Jason Brown submitted that these events were denied by him and should not be taken into account in considering the complaints referred.

57 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].

58 Accordingly, we have confined our consideration to those events which were particularised by the applicant in his complaint to the Board.

Factual findings concerning the vilification complaints against Jason Brown
59 Counsel for Jason Brown submitted that where there were inconsistencies between the applicant’s computer records and the account he gave to us, the former should be preferred. He referred to the events on 26 November 2006 which were described by the applicant in evidence as including screaming, although what he said could not be heard. The account in the computer records did not refer to screaming. Further, on 15 February 2007, the computer record has no mention of the word ‘poofter’ being used while the account to this Tribunal has that word being spoken. Finally, on 5 March 2007, the computer records do not refer to words being used while the account given to the Tribunal does.

60 Further, counsel for Mr Brown submitted that it would be unsafe to rely upon the applicant’s account of his conversation with the work colleague without evidence from Ms Kemp.

61 Counsel for the applicant submitted that the applicant’s computer records were not the subject of cross examination as they were produced and tendered after the applicant had completed his evidence. Neither respondent requested his recall for the purpose of questioning and as such, to rely on that material to support a submission that he not be believed, is unfair.

62 The applicant’s evidence was largely consistent with the contemporaneous records he maintained on his computer. We agree that the applicant should have been given an opportunity to give evidence as to any perceived inconsistencies before any critical submission be made. We have had regard to the large number of incidents the subject of complaint and recorded on the applicant’s computer and the repeated use of similar language and gestures.

63 The applicant’s evidence was supported, either directly and specifically or more generally by the evidence given by his son, his mother, his step father, Mr Corner and Mrs Barnes. We find the applicant and each of those who gave evidence for the applicant to be a truthful and reliable witness. We accept the applicant’s evidence and prefer his oral account on those occasions where it differs from the computer records. The latter were brief and expanded in a number of respects in his oral and written evidence.

64 We have taken into account that the applicant’s mother, step-father and Mr Corner did not give oral evidence, however, neither respondent ultimately required them for cross examination.

65 Counsel for Jason Brown submitted that his client was not sophisticated and was of modest intellect and that he gave his evidence to the best of his ability. With the exception of the comments he made during the case conference, he had said or done nothing as alleged. His counsel drew our attention to evidence Mr Brown gave of scratching his head on occasion which may account for the finger gestures alleged against him. His counsel also noted that there was some corroboration for his account from Rodney Fisher. He submitted that it would be unsafe for us to infer that Jason Brown uses the language the subject of the complaints based on one event in a case conference.

66 We take into account the circumstances of Jason Brown as submitted by his counsel and that he is in receipt of a disability pension and is a mild epileptic. He has never done any paid work.

67 We also take into account that as Mr Brown had provided no response to the Board, the first occasion on which he gave an account of his conduct to the Tribunal occurred more than two years since the events complained of occurred.

68 We have had regard to the fact that the only admission made by him was in relation to a comment made in the hearing of a Judicial Member of the Tribunal. The words he admitted using on that occasion are in the same vein as those he is accused of using on previous occasions.

69 We find that, in giving evidence Jason Brown was not credible, not responsive, and evasive and, at times, gave inconsistent evidence about a number of matters. He gave evidence that police did not attend on 15 August 2006, then, when shown the COPS entry indicating that the police were in attendance, said he meant the police did not go to his unit on that date.

70 Initially, Mr Brown would not answer whether he received correspondence from the Board, he then denied having received it. However, there was evidence before us of a letter written for him and with his assistance which refers to having received the correspondence from the Board. We find he did receive that correspondence.

71 We do not consider Jason Brown to have been a credible witness and reject his evidence denying each of the events described by the applicant and set out above.

72 We have had regard to the photographs tendered and the oral evidence given as to the respective locations of Jason Brown’s unit and that of the applicant and are satisfied that on each occasion particularised in the complaints, the applicant was in a position which enabled him to see and/or hear Jason Brown.

73 The complaint that Jason Brown and Rodney Fisher had approached new neighbours and informed them of his homosexual status and said he was a "dirty faggot" and "rockspider" will be addressed later in these reasons.

74 We find that each of the events occurred as described by the applicant. In relation to the incident on 7 March, we accept the applicant’s account, notwithstanding the absence of any evidence from the work colleague. The applicant was present when the conversation was had between the work colleague, who was named in the Tribunal, and Mr Brown, and the applicant was told of the conversation the following day. We reject the submission that it would be unsafe to rely on his account.

Whether the incidents constitute homosexual vilification by Jason Brown
Submissions

75 Counsel for Jason Brown conceded that each of the matters alleged against his client constituted a public act.

76 He submitted that each incident should be considered individually. He relied upon the decision in the Appeal Panel of the Administrative Decisions Tribunal in Veloskey v Karagiannakis [2002] NSWADTAP 18, in particular at para 28 where the question to be asked is set out, namely could the ordinary reasonable 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 homosexuality?

77 Counsel urged us to find that the language, if found to have been used by Mr Brown, may have amounted to verbal abuse, bad, perhaps derogatory language, unsavoury and harsh but fell short of inciting.

78 He submitted that the events were not cumulative because they did not take place in a common environment. He relied on Burns in support of this submission.

79 He further submitted that the events were part of a neighbourhood dispute and the applicant had not proved that they occurred "on the grounds of homosexuality".

80 The applicant submitted that the incidents should be considered cumulatively or collectively and referred us to Trad v Jones & anor (No. 3) [2009] NSWADT 318. The applicant relied on Burns, Marinkovic and the cases cited therein to support the submission that we should be comfortably satisfied that each of the incidents alone and collectively is vilification within the meaning of the provision. The applicant submitted that the language and gestures used were derogatory, demeaning and humiliating and became more threatening over time.

81 The applicant submitted that the audience or group was the residents and visitors to the unit complex. The applicant submitted that third parties were incited to hate the applicant because of his homosexuality and that they engaged in abusive conduct. Reference was made to the third person present with Mr Brown on a number of occasions and the incident where a woman, it is alleged, made an abusive telephone call after speaking with Mr Brown and Mr Fisher (this incident is dealt with below).

82 Finally, the applicant submitted that the language used made express reference to the applicant’s homosexuality.

Reasons for decision

83 In relation to whether we consider the incidents individually or collectively, we find no support for the proposition asserted by the applicant in the decision to which his counsel referred. We take the approach adopted in previous decisions of this Tribunal which is to determine each incident individually on which it is claimed that a person has been vilified. (see Burns and Z)

84 In relation to the first complaint, the words were spoken by Jason Brown at the front of the applicant’s house and in the grounds of the unit complex. In relation to the second complaint Jason Brown was in a car, on his balcony, in front of the unit block, at KFC and on the street. In relation to the third complaint, the applicant heard Jason Brown when the applicant was in his driveway.

85 We find that, consistent with the authorities referred to above, on each of these occasions the respondent did a public act.

86 The question then is could the ordinary reasonable listener understand from 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?

87 We consider 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. 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.

88 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.

89 In relation to the first complaint against Jason Brown, we find the words used on 15 August 2006 were directed at the applicant, had a capacity to incite hatred towards the applicant and expressly referred to homosexuality and we are satisfied that the incitement was on the grounds on homosexuality.

90 In relation to the second complaint, we find that the words used on 18 December 2006 and 5 and 7 March 2007 namely "you and your faggot friend are going down", "fucking faggot cunt" and "you should keep your children away from rockspider gays", constitutes homosexual vilification. Each expressly uses words known to the community to be associated with homosexuality. The words used on 18 December are explicitly threatening. The language "fucking faggot cunt" and the warning given on 7 March could incite a ‘feeling of hostility or strong aversion towards a person or thing; active and violent dislike’. Given the proximity to the applicant when the words were used, we find that the language was directed at him. We are satisfied that the incitement was on the grounds of homosexuality.

91 In relation to the third complaint, we find that the words used on 3 May 2007; namely, "you’re a dead dog cunt... I’m gonna fucking kill you cunt... Go suck another dick you pair of faggot cunts...you’re nothing by a backstabbing cunt... You’re just a pair of faggots." constitute homosexual vilification. They are explicitly threatening and could incite a ‘feeling of hostility or strong aversion towards a person or thing; active and violent dislike’. The words were directed at the applicant and expressly refer to his homosexual status.
92 We consider that the use of the gesture using middle fingers alone or of clapping, when not accompanied by any language, or language that can be heard, does not constitute homosexual vilification. While it may convey contempt and be offensive, it does not incite others and there is no causal connection with homosexuality.

93 Thus, for these reasons, we do not find that the conduct of Jason Brown in the use of a gesture while in a vehicle, clapping, blowing a car horn, yelling poofter or faggot from a moving car, yelling unspecified abuse from a vehicle or taking photographs on 26 November 2006, 4, 5 December, 27 January, 24 February, 8 March, 16, 22 March constitutes homosexual vilification.

94 We consider that the making a pistol sign is offensive and, with the threat of violence implicit in it, is capable of inciting another. However, there is no causal connection with homosexuality and thus we find that it does not constitute homosexual vilification.

95 Thus we find the first and third complaint and part of the second complaint made against Jason Brown of homosexual vilification proved.

Complaints against Rodney Fisher
The first complaint
96 The applicant gave evidence that he had been subjected to harassment and intimidation from Rodney Fisher since he had been informed of his homosexual status. He gave evidence of incidents which had occurred since 19 March 2006.

97 In his complaint, the applicant stated that on 5 March 2007, Rodney Fisher, Jason Brown and another person yelled "fucking faggot cunt" at him from the front of their unit complex. In his statement, he said that Jason Brown had yelled at him and that Rodney Fisher had signalled to him with his middle finger.

98 The applicant gave evidence that on 30 March 2007, Rodney Fisher and two other people were sitting opposite his house and shortly afterwards he received a phone call from one of those other persons saying "I’m going to fuck you right up the arse baby". That person had not spoken to him before. He thought that it was an attempt by Rodney Fisher to harass him because he had been seen with the other person together at the gate.

99 Rodney Fisher denied the allegations.

The second complaint
100 The applicant’s second complaint was made on 16 July 2007.

101 The applicant complained that neighbours had told him that Rodney Fisher and Jason Brown warned them to stay away from him because he was a "dirty faggot" and a "rockspider". He said in oral evidence that those neighbours were uncomfortable about what was said and did not want to get involved. They had told him as a courtesy. In oral evidence, the applicant said that he had been told that Rodney Fisher had said those words.
102 The applicant gave evidence that on 5 July 2007, a new neighbour screamed at him "you’re nothing but a faggot cunt" and that when approached by the applicant said "they" had been approached by Rodney Fisher and Jason Brown and informed of the applicant’s homosexual status.
103 In his affidavits, Mr Fisher admitted clause 1 of the applicant’s letter of complaint dated 16 July 2007. However, as that letter does not have numbered paragraphs and the first paragraph refers to the fact of two outstanding complaints, we are unable to understand to what this admission refers.

104 In oral evidence, Rodney Fisher denied the allegations.

The third complaint
105 The applicant gave evidence that between January and May 2008, on three occasions Rodney Fisher and Jason Brown had told new neighbours that he is a "dirty faggot rockspider" and showed them his former complaints as evidence that he is homosexual.

106 The applicant gave evidence that on 13 June 2008, while in his driveway with his mother, Rodney Fisher yelled at him "Stop looking at me you faggot cunt, come down the bottom of the driveway so I can smack your fucking head in."

107 Rodney Fisher then yelled at his mother, saying "I am going to kill your faggot fucking son."

108 The applicant gave evidence that on 23 July 2008 when Rodney Fisher was in the laneway at the end of the applicant’s street and the applicant was walking from the front lawn to his front door, in the company of his son, Rodney Fisher called him a "faggot".

109 Malcolm Corner made a statement in which he said that in June 2008 he heard Rodney Fisher abusing the applicant’s mother using the word "slut".

110 The applicant’s mother made a statement that in June 2008 she was with the applicant in the driveway of his house and heard Rodney Fisher call out and abuse the applicant and call her a "slut".

111 In a response to the Board, Rodney Fisher said that he was "wild" on 13 June 2008 and had it out with the applicant on the road. When being cross examined, he admitted to calling the applicant a "faggot" on that occasion but denied verbally abusing the applicant’s mother.

112 Otherwise, Rodney Fisher denied making the statements claimed by the applicant. When it was put to him that he had showed copies of the complaints to neighbours he replied, no not that he recalled.

113 In cross examination, he said that he found out in about 2006 that the applicant was a gay man. He agreed that he had made a complaint to the Department of Housing on 7 March 2007 about the applicant. That letter referred to "insults and accusations" having been made against himself, Jason Brown and another man.

Factual findings concerning the vilification complaints about Rodney Fisher
114 We are not satisfied that Mr Fisher was a credible witness. His answers to questions were on occasions, self serving, evasive and non responsive. However, that finding does not mean that the evidence of the applicant, whom we accept as an honest witness is sufficient in every respect to prove the allegations.

115 In relation to the first complaint, we accept the evidence of the applicant and find that on 5 March 2007, Rodney Fisher made the gesture alleged to the applicant.

116 We are not satisfied to the requisite standard that the Rodney Fisher is responsible for the comments made on 30 March 2007 to the applicant. The person who made the comments has not made a statement or given evidence and no reason has been given for the absence of that evidence. It is inferred that their evidence would not assist the applicant. (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

117 Rodney Fisher has denied the allegation. In these circumstances, and applying the standard of proof referred to earlier, we are not satisfied that the words spoken to the applicant were at the behest of Mr Fisher.

118 In relation to the second complaint, the applicant refers to two incidents, each involving neighbours. None of the neighbours referred to gave oral evidence or made a statement. We were informed by the applicant that the neighbours did not want to get involved. We accept the applicant’s reason for not having called any of the neighbours referred to in the complaints and do not infer that their evidence would not have assisted him. (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298)

119 However, in the absence of evidence from those neighbours, and in the face of the denial of Mr Fisher, we have only the hearsay evidence of the applicant as to what was said to the neighbours by Mr Fisher.

120 In relation to the first incident in the second complaint, we take into account that the applicant has made that allegation in his statement and in his complaint to the Board against each of Jason Brown and Rodney Fisher. Only in evidence did the applicant state that he was told that it was Rodney Fisher who had made the statement. Both deny having made them.

121 In these circumstances, we are not satisfied to the requisite standard that Rodney Fisher spoke the words attributed to him by the neighbour.

122 In relation to the second incident in the second complaint concerning the "new" neighbour, there is no evidence as to what was said, by whom, when any conversation took place, where and in what circumstances. Accordingly, the applicant has not proved to the requisite standard his allegation.
123 In relation to the third complaint, that is the three events between January and May 2008, there is also no evidence as to what was said, by whom, when any conversation took place, where and in what circumstances. In these circumstances, we find that the applicant has not proved that aspect of the third complaint.

124 We accept the evidence of the applicant as to the events of 13 June and 23 July 2008. His evidence is corroborated at least in part by the evidence of Mr Corner and Mrs Smith and accepted, in part, by Rodney Fisher.

Whether the incidents constitute homosexual vilification
Submissions

125 The applicant made essentially the same submissions as made in relation to the complaints by Jason Brown. The applicant relied on Burns, Marinkovic and the cases cited therein to support the submission that we should be comfortably satisfied that each of the incidents alone and collectively amounts to vilification within the meaning of the provision.

126 Mr Fisher submitted that he tried to keep away from the conflict and not to say or do anything.

Reasons for decision
127 The first question to be decided is whether the language used on 13 June 2008 and again on 23 July 2008, constitutes a public act by the respondent? We find that it does as on each occasion, the applicant was in a public place, namely in his driveway and on his front lawn and that Rodney Fisher was at the end of the driveway and in a laneway.

128 For the reasons given above in relation to the complaints against Jason Brown, we do not find that the making of the gesture or calling the applicant "faggot" amounts to incitement as required by the Act.

129 We find that the use of the words "Stop looking at me you faggot cunt, come down the bottom of the driveway so I can smack your fucking head in" and "I am going to kill your faggot fucking son" is inciting an ordinary reasonable listener to hatred towards the applicant on the ground of his homosexuality. Words of violence were used along with express reference to the applicant and his homosexuality. Accordingly, we find that the incident which occurred on 13 June 2008, referred to in the third complaint amounts to homosexual vilification.

Victimisation

130 Section 50 of the ADA provides as follows:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

131 The applicant must establish the following to prove victimisation:

a)The applicant did one of the things referred to in sub-paras (a)-(d);

b)Each respondent caused the applicant to undergo or experience something;

c)The applicant must have suffered some consequential detriment; and

d)That detriment must have occurred on one of the grounds set out in sub-paragraphs (a) to (d) of section 50(1). (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808)

132 In Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42 the Tribunal set out the requirements of the provision as follows:

The meaning of "subjected"

171 ...the Tribunal in Shaikh v Commissioner, NSW Fire Brigades expressed the view that the word "subject" means no more than that the conduct of the respondent was done on one of the grounds referred to in s 50(1) and adds nothing of substance to the other stated requirements (at 78, 986). We propose to adopt this view.

What constitutes a "detriment"?

172 In Shaikh v Commissioner, NSW Fire Brigades, the Tribunal said, at 78, 986, that victimisation occurs when the respondent causes the complainant to undergo loss, damage or injury based on the fact that the complainant has made a complaint or an allegation within the meaning of s 50(1). When considering the meaning of the word "detriment", the Tribunal expressly said that it preferred the Macquarie Dictionary meaning of "loss, damage or injury" and that it did not consider it helpful to refer to the concept, applicable to discrimination provisions, of suffering a material difference in treatment.

173 For present purposes, we prefer the meaning given to the word "detriment" in Bogie v The University of Western Sydney. In that case, following Hill v Water Resources Commission (1985) EOC 92 - 127 at 76, 290, the Tribunal held that all was required to constitute a "detriment" in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter (at 78, 146). Thus defined, we are satisfied that the delay in transferring Mrs Borg constitutes a "detriment" within the meaning of s 50(1).

174 The real issue in the present case appears to relate to the question of causation, ie whether the Applicant has proved the necessary causal connection between the First Respondent's conduct and the detrimental consequence alleged (namely, the delay in being transferred to John Morony). Observations to this effect were made in Bhattacharya v Department of Public Works (1984) at 76, 133 and Bogie v The University of Western Sydney at 78, 146.

The meaning of "on the ground that"

175 Section 4A of the Act, which was inserted in 1994, provides that if an act is done for two or more reasons, provided one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason (whether or not it is the dominant or a substantial reason for doing the act). In Shaikh v Commissioner, NSW Fire Brigades, the Tribunal noted that this section did not apply to an act of victimisation (at 78, 986). Accordingly, it is instructive to derive assistance from the cases which dealt with the comparable phrase, "on the ground of", in the context of discrimination on substantive grounds before the 1994 amendment took place.

176 Two distinct approaches have emerged from the relevant authorities. The first approach requires a determination of whether the act in question is "a significant factor" in the alleged decision making process or conduct (e.g. O'Callaghan v Loder; Reddrop v Boeringer Ingleheim Pty Ltd (1994) EOC 92 - 031). The second approach requires an examination of whether the act in question is "a real" or "an operative ground" of the alleged decision or conduct (e.g. Waterhouse v Bell).

177 In Waterhouse v Bell, Clarke JA said at 106:

"In the event, however, that the Tribunal decides that there are two grounds for the action or decision, one which does and one which does not fall within [the prohibition] then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of, for example, marital status. The fact that there was another ground for the discriminatory action is, in this context, of no importance."

178 We prefer the approach taken by Clarke JA in Waterhouse v Bell and consider that, although the phrase "an operative ground" was originally adopted in the context of alleged discriminatory acts, it is equally applicable to alleged acts of victimisation. This is consistent with the approach adopted in Shaikh v Commissioner, NSW Fire Brigades and D v Berkeley Challenge Pty Ltd [2001] NSWADT 92.

The meaning of "by reason that"

179 As was noted in Bogie v The University of Western Sydney at 78, 146, the latter part of s 50(1) appears, in its terms, to pose a different causal connection from that set out in the earlier part of s 50(1) namely, a requirement that the person victimised has been subjected to a detriment "by reason that" the discriminator has the relevant knowledge or suspicion. The Tribunal in Bogie considered that the same principles applied to the application of each causal requirement in the two parts of s 50(1) notwithstanding the variation in terminology between them. Accordingly, the Tribunal’s view was that the words, "by reason that", merely require that one of the relevant states of knowledge or suspicion was a substantial operative reason, although it does not have to be the sole reason, for subjecting the person victimised to a detriment.

180 In Bogie, the Tribunal's interpretation of the second part of s 50(1) (that the operative reason be "substantial") may well impose a more stringent test than that we have adopted in respect of the term "on the ground that" which appears in the first part of s 50(1), namely, that the ground of the alleged victimisation be "an operative ground" rather than a substantial operative ground. However, in the present case, nothing turns on this distinction. Accordingly, it is not necessary to decide the point.

133 The Appeal Panel recently considered the meaning of the words "on the ground of" in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 and held the question to be posed is whether the respondent had done "one of the things listed in s 50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment".

Complaints of victimisation against Jason Brown
134 The applicant has made two complaints of victimisation against Jason Brown. The first was made on 4 April 2007 and concerned events between 26 November 2006 and 30 March 2007.

135 The second complaint of victimisation was made on 23 May 2007 and concerned victimisation which was stated to have occurred on 3 May 2007.

136 Each of those events was also the subject of claims of vilification and has been dealt with above.

137 Factual findings have been made about each of the incidents the subject of the victimisation complaints.

138 The applicant submitted that the evidence shows that the Board wrote to Mr Brown on 28 September and 21 November 2006 concerning the first and second complaint and that Mr Brown prepared a response dated 29 November 2006. Mr Brown continued to vilify the applicant after 21 November on the occasions set out in the complaint.

139 The Board wrote to Mr Brown on 26 April 2007 following receipt of the applicant’s second complaint. On 3 May 2007 the incident described in third complaint occurred.

140 In cross examination, Jason Brown agreed that he understood that the applicant was alleging vilification under the ADA when he received correspondence from the Board and that he knew from that correspondence that it would be victimisation if he did anything because the applicant had made a complaint.

141 The applicant gave evidence of the humiliation, damage to his reputation, embarrassment and distress caused to him by the actions of Mr Brown as set out in his complaints. The applicant submitted that Mr Brown’s words and conduct were detrimental to him because of the humiliation and distress he suffered. While Mr Brown did not refer to any of the complaints when he abused the applicant, we are invited to infer that the intensity of abuse was done in response to the applicant’s complaints.
142 Counsel for Mr Brown submitted that there was no victimisation, instead conduct of the same nature which had taken place before, continued. That conduct merely post-dated the complaint. He referred the Tribunal to Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42.

Reasons for decision

143 We accept the chronology of events as set out by the applicant, and do not understand the respondent to take issue with it.

144 It is beyond dispute that the applicant brought proceedings against Mr Brown under the ADA and we find that he did so, prior to the occurrence of the incidents referred to in the second and third complaints made against Jason Brown.

145 We accept the applicant’s evidence that Mr Brown caused him to feel humiliated, embarrassed and distressed by his conduct and the language he used. We find that those feelings amount to a detriment in that the conduct of Mr Brown placed the applicant under a disadvantage, was not trivial and constitutes damage and a form of injury. There was no evidence as to the applicant’s reputation as perceived by others and, as such, we make no finding as to whether his application has, in fact, been damaged by the conduct of the respondent.

146 As with Borg, the main issue in this matter is whether the bringing of proceedings by the applicant was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment. Mr Brown is a poorly educated man who lacks sophisticated thought processes. Notwithstanding the answer he gave in cross examination, we do not accept that he was sufficiently aware of the nature of the complaints of vilification against him for that to have been one of the real reasons for his continuing vilification. This finding is supported by the fact that no mention was made by Mr Brown of the complaints.

147 We accept the submission of his counsel that his conduct, after the making of the first and second complaint, was a continuation of his earlier conduct, rather than because complaints had been made.

148 Accordingly, we do not find the complaint of victimisation against Jason Brown proved.

Complaint of victimisation against Rodney Fisher

149 The applicant made one complaint of victimisation against Rodney Fisher that after being advised of the first complaint on 20 September 2007 and the second complaint on 4 December 2007, Mr Fisher continued to engage in vilification.

150 The applicant submitted that Mr Fisher’s conduct caused him embarrassment and distress and that it was detrimental to him because it caused him to suffer humiliation, damage to his reputation and embarrassment. Further, the intensity of the abuse coincided with the Board advising him of the complaint. While Mr Fisher did not refer to any of the complaints, when vilifying the applicant, we are invited to infer that it was in response to the complaints. The applicant submitted that he was in fear of Mr Fisher.
151 Mr Fisher did not make any submissions specifically concerning the complaint of victimisation.

Reasons for decision

152 We have found that on 13 June 2008, Rodney Fisher yelled at the applicant "Stop looking at me you faggot cunt, come down the bottom of the driveway so I can smack your fucking head in." Rodney Fisher then yelled at his mother, saying "I am going to kill your faggot fucking son."

153 We have also found that on 23 July 2008 when Rodney Fisher was in the laneway at the end of the applicant’s street and the applicant was walking from the front lawn to his front door, in the company of his son, Rodney Fisher called him a "faggot".

154 As with Mr Brown, there is no doubt that the applicant had brought proceedings against Rodney Fisher prior to the events referred to above and that those proceedings had been brought to the attention of the Mr Fisher . We accept the applicant’s evidence that Mr Fisher caused him to feel humiliated, embarrassed and distressed by his conduct and the language he used. We find that those feelings amount to a detriment in that the conduct of Mr Fisher placed the applicant under a disadvantage, was not trivial and constitutes damage and a form of injury. As with the complaint against Mr Brown, there was no evidence as to the applicant’s reputation as perceived by others and, as such, we make no finding as to whether his application has, in fact, been damaged by the conduct of the respondent.

155 Again, the main issue in this matter is whether the bringing of proceedings by the applicant was a real, true or genuine reason for the continuing conduct of Mr Fisher. We are satisfied that Mr Fisher knew and understood the complaints first brought against him. We are satisfied that he was angry about those complaints having been made. The denial given by Mr Fisher as to whether he showed the complaints to other residents was qualified; he said ‘not that he recalled’. While he did not specifically refer to the complaints in his subsequent conduct, we find that the complaints were a real reason for his conduct in June and July 2008. The language used was not only offensive and contemptuous but also very threatening. We find the complaint of victimisation against Rodney Fisher proved.

Remedies

156 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.

157 That section of the Act was amended with effect from 1 January 2009 and the amended provision does not apply to applications and proceedings that were made on or commenced but not finally determined before that date. (ADT Act, Schedule 5, Part 11, Clause 43(2) (i)). As these proceedings were commenced prior to that date, the maximum award that can be made is $40,000.

158 We have dismissed the first and second complaint of homosexual vilification against Rodney Fisher and found substantiated in part the third complaint. We have found substantiated the first and third complaint of homosexual vilification against Jason Brown and in part the second complaint of homosexual vilification made against Jason Brown. We have dismissed the complaint of victimisation against Jason Brown and we have found substantiated the complaint of victimisation against Rodney Fisher.

159 The applicant seeks compensation for general damages and orders which will require each respondent to cease his conduct. An order for costs is not sought, as counsel and her solicitor acted on a pro bono basis, however, disbursements associated with the hearing being vacated on 10 August 2009 are sought.

160 The applicant referred us to Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22 as setting out the proper approach to assessing loss. At [48] the Appeal Panel said:

48 When determining what may constitute the "loss" for which a successful applicant in a discrimination case may be compensated by an order for the payment of damages, the Tribunal should apply what is referred to in tort law as the compensatory principle. Whilst Spigelman CJ pointed out in Harriton v Stephens [2004] NSWCA 93 at [7] that the principle is capable of being stated in different terms, which sometimes produces different outcomes when it is applied, it is common to refer the explanation of the principle by Mason CJ, Dawson, Toohey and Gaudron JJ in Haines v Bendall [1991] HCA 15; (1990) 172 CLR 60 at 63:

The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed...

161 We accept that this is the correct approach to determining ‘loss’.

162 As the applicant has not been successful in all of his complaints, any award must be limited to loss arising out of that conduct found to constitute unlawful conduct pursuant to sections 49ZT(1) and s.50 of the Act. The applicant’s evidence did not apportion his distress to particular incidents. We, therefore, must identify whether any of the distress and humiliation suffered by the applicant with respect to each respondent, is attributable to the incidents which have been found proved.

163 Counsel for the applicant submitted that it was not necessary for the applicant to rely on a report from a psychologist to support his assertion that he has suffered from distress as a result of the conduct of each respondent. Counsel for the applicant further submitted that comparable cases were Daniels v Hunter Water Board (1994) EOC 92-626 and Marinkovic in which $12,500 and $25,000 respectively were awarded in general damages against the respondent.

164 The applicant seeks an award of $40,000 against Jason Brown and an unspecified award of damages against Rodney Fisher. He also seeks an orders enjoining each respondent from continuing or repeating any conduct constituting homosexual vilification and victimisation, that each respondent publish an apology and a retraction of the words and conduct constituting homosexual vilification in the press and online publication of the Western Advocate and undertake appropriate counselling for the purpose of developing a personal program aimed at eliminating vilification of homosexual persons.

165 The applicant submitted, and counsel for Mr Brown accepted that the limited means of Mr Brown to pay any damages was not a consideration for this Tribunal.

166 We have no difficulty in finding that the incidents which we have found constitute homosexual vilification and victimisation in relation to Rodney Fisher and homosexual vilification in relation to Jason Brown caused the applicant distress, humiliation, and embarrassment. In doing so, we have had regard to the applicant’s oral and written evidence, the strength of the language used, the violence implicit and explicit in that language, that the words were spoken in public, and in the presence of others on occasion, including the applicant’s mother and stepfather and son. We also take into account that these acts occurred in and around the complex in which the applicant lived. In relation to Jason Brown the discriminatory conduct took place over many months and in relation to Rodney Fisher over 12 months.

167 Determining the amount of loss for the purposes of making an order of compensation is not a matter of mathematical calculation. The Tribunal must nevertheless determine an amount which will, as far as possible, put the applicant in the same position he would have been had the discriminatory conduct and victimisation not occurred.

168 We order that the respondent Jason Brown pay the applicant $20,000 by way of compensation for the loss suffered by reason of the respondent’s conduct.

169 We order that the respondent Rodney Fisher pay the applicant $15,000 by way of compensation for the loss suffered by reason of the respondent’s conduct.

170 We order that each respondent publish the following in the press and online publication of the Western Advocate within a period of one month from the date of service of these orders on each respondent.

"I, Jason Brown hereby apologise unreservedly to Brian Carter for my speech and conduct which has been found by the Administrative Decisions Tribunal to constitute vilification in contravention of the Anti-Discrimination Act and which has brought him unnecessary distress. This apology is given in accordance with orders made by the NSW Administrative Decisions Tribunal."

"I, Rodney Fisher hereby apologise unreservedly to Brian Carter for my speech and conduct which has been found by the Administrative Decisions Tribunal to constitute vilification and victimisation in contravention of the Anti-Discrimination Act and which has brought him unnecessary distress. This apology is given in accordance with orders made by the NSW Administrative Decisions Tribunal."

171 We also make an order enjoining each respondent from continuing or repeating any of the speech or other conduct which we have found to constitute vilification in the case of Jason Brown and vilification and victimisation in the case of Rodney Fisher.

172 In relation to the order sought that each respondent undertake appropriate counselling, in our view, while we have power to make it in the terms sought pursuant to s.108(2)(e), we are not satisfied that it should be made. The paragraph has particular application to an institution or corporation that routinely makes policies or sets out programs for others in its control to follow. Its application to each of the respondents is not as clear. The submission was not made with sufficient detail to permit each respondent to know and makes submissions in relation to the nature and extent of the counselling that may be needed and the qualifications of the person who may be appropriate to deliver it. In order for the order to be properly enforceable, it would need to have much greater specificity. The Tribunal does not have sufficient evidence for it to do so. The Tribunal is also satisfied that each of the other orders it makes should have the effect of ceasing the conduct which has occurred contrary to the ADA.

173 In relation to the application for the payment of disbursements, while it may well be the case that Mr Brown was not diligent in applying for a grant of legal aid and then obtaining legal advice, we are not satisfied that it is fair to award costs as submitted by the applicant. We do not find that any of the paragraphs of s.88 (1A) of the Administrative Decisions Tribunal Act justify an award of the cost of the applicant’s disbursements for the day of hearing which was vacated.