1. The respondent gave this account.
2. On 12 December 2011 he was walking his dog in the park when he encountered the applicant and his friends. The respondent's dog Lily may have run forward, perhaps to greet Mr Adcock because Lily liked Mr Adcock. After that, the applicant's dog Bella came from behind and started to 'hunt Lily down'. The respondent tried to protect her. He did have a shifter (only about eight inches long) that he had carried around to protect his wife and his dog.
3. His wife has deep vein thrombosis and cannot receive any knocks. According to the respondent, his small whippet dog Lily was harassed three or four times before that occasion, it seems by the applicant's dog Bella.
4. On this occasion the respondent waved the shifter around. He admits he did swear at the applicant and told him what he thought of him: 'I admit my language was not that good - I called him an arsehole, an ignorant pig and probably more but I can't recall every word'. In reply, the applicant said he had never hit a 70 year old but the respondent had pushed him to the limit. According to the respondent, the applicant shoved the respondent but 'it wasn't anything worth worrying about'. They both walked away from each other and continued on their separate ways.
5. The respondent says another person in the park did say to him afterwards to go back to his car and go home. He did. This was so that he would not bump into the applicant and his friends again that evening. The respondent strongly denies that at any time he called the applicant a 'big fat Jewish slob' or made the alleged 'Hitler' comment.
6. Further, the respondent says that even if he said the words, he should not have to give an apology and attend a course. He says there is nothing a course could teach him that he would not know about anyway through having lived through World War II and his own general knowledge of the Holocaust.

1. It was clear at the hearing that there is a long history of dispute and ill feeling between the parties. For instance, they referred to cases in the Magistrates Court and VCAT (the latter concerning whether Bella should be declared a dangerous dog).
2. The respondent also referred to the lead up to the incident on 12 December 2011 (it could have been over a period of three weeks), when the respondent would bump into the applicant. The applicant's dog Bella would start 'hunting down' his dog Lily. He said he asked the applicant to put her on a lead and he refused each time. The applicant indicated that his dog was always on a lead and the respondent's dog was not.
3. These matters and the long running dispute between the parties are irrelevant to this case.

1. Having heard the evidence of the witnesses, I prefer the applicant's evidence (supported by Mr Adcock) that the respondent did in fact say to him in a clearly audible voice 'you're a big fat Jewish slob' and 'Hitler was right about you bastards'.
2. I had the opportunity to observe the witnesses in giving their versions of events. The respondent sought to present himself as a softly spoken person who was at a considerable disadvantage in running the case, in comparison to the applicant. He described himself as an uneducated man. However, regardless of whether the applicant is an uneducated man, I am not convinced of the accuracy of this disadvantaged image that he sought to project of himself, nor of the accuracy of his version of events.
3. The respondent made concessions about having sworn at the applicant, and that whilst the applicant had shoved him (the respondent), 'it was not anything worth worrying about'. I was left with the impression that these concessions were made as the respondent's attempt to present himself in the most favourable light possible. This was in view of the fact that it would have been difficult to deny the occurrence of some form of altercation between the parties, in particular given the evidence of Mr Adcock and even Mrs Kopp. I say 'even' Mrs Kopp because Mrs Kopp did not hear the words spoken, but heard raised voices and so her evidence supports the occurrence of some kind of commotion.
4. In contrast, although the applicant was (understandably) passionate in giving his evidence, I found him to be a reliable and truthful witness. I prefer his version of events. This is even without taking into account the evidence of Mr Adcock, which supports the applicant's version.

1. Does the applicant have a case under s 8 of the Act?
2. The applicant referred to ss 1(a)[2], 8 and 12 of the Act. Section 8 provides:

A person must not, on the ground of religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.

may be constituted by a single occasion or by a number of occasions over a period of time; and

1. 'Religious belief or activity' is defined in s 3 to mean:

(a) holding or not holding a lawful religious belief or view;

(b) engaging in, not engaging in or refusing to engage in a lawful religious activity.

1. The applicant says he is Jewish. He holds the religious belief or view that corresponds to the Jewish religion. The comments complained about were clearly directed at the applicant's religious beliefs or views as a member of the Jewish community.
2. Section 12 relevantly provides that a person does not contravene s 8 if:

....the person establishes that the person engaged in the conduct in circumstances that may reasonably be taken to indicate that the parties to the conduct desire it to be heard or seen only by themselves.

1. When I asked the applicant what 'inciting' meant to him, he said it was a statement made in a public place in the presence of other persons or witnesses. He identified the witness here as Mr Adcock. He also referred to other people generally around in the park - two people on the bridge and other people in the area. He referred to the respondent's evidence that after the altercation someone else in the park had approached him (the respondent) and told him to get into his car.
2. The applicant said the incident occurred in full view and the respondent spoke in "quite some high voice". As to whether the respondent might be described as having said the words in circumstances that may reasonably be taken to indicate that the parties desired it to be heard or seen only by themselves, is another question. I do not consider that this exception in s 12 is made out because the words were said in a public park. I accept that there were other people in the vicinity, although they may not have been very close by.
3. Has there been a contravention of s 8 of the Act? The leading case interpreting that provision is the Court of Appeal decision in Catch the Fire Ministries Inc and Others v Islamic Council of Victoria Inc and Another (Catch the Fire)[3]. A number of principles were enunciated in that case.
4. Both Nettle and Neave JJA agreed that the test for s 8 is 'whether the natural or ordinary effect of the conduct is to incite hatred or other relevant emotion in the circumstances of the case'.[4] According to Neave JA 'those circumstances include both the characteristics of the audience to which the words or conduct are directed and the historical and social context in which the words are spoken or the conduct occurs'.[5] In summary, Neave JA identified the relevant question in the case before her as whether the statements made were, 'in the current social context, likely to incite hatred, serious contempt for, or revulsion or severe ridicule of Muslims, because of their religious beliefs, in the minds of the persons to whom those statements were directed'.[6]
5. Nettle JA observed: 'I accept that "incites" in s 8 means "urge[s], spur[s] on, ...stir[s] up animate[s] or stimulate[s]'.[7] Whilst accepting that a contravention of s 8 did not necessarily require that the relevant emotions referred to in the section be actually caused[8], his Honour observed that the nature of the audience to whom the conduct was directed could not be excluded from consideration:[9]

Evidently, there can be no incitement in the absence of an audience. It is not a contravention of s 8 to utter extortions to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience.[10]

1. According to Nettle JA, it was necessary to consider the perception of a reasonable member of the class of persons to whom the conduct was directed.[11] Neave JA held it was necessary to consider the effect on an 'ordinary' member of the class to which the conduct is directed.[12]
2. I accept the applicant's evidence that the respondent said the words to the applicant 'in quite some high voice'. On one view, the words might be seen as having been directed only to the applicant, that he was the only audience, as they were only said to him. This is so although Mr Adcock heard them.
3. There is no evidence that the words were actually heard by other persons nearby, or indeed that anyone else was close enough to hear the words. Accepting that after the altercation someone approached the respondent and told him to get into his car, this is not evidence that that person actually heard the words. They may have just been conscious that some kind of altercation occurred.
4. If Mr Adcock comprised the entire audience, clearly, he was not actually incited to hatred against, serious contempt for, revulsion or severe ridicule of, the applicant or the class of persons that is Jewish. He voluntarily attended the hearing to give evidence in support of the applicant's case. However, the applicant does not need to prove that the relevant response was actually provoked in Mr Adcock. In fact, Mr Adcock's evidence showed that the relevant response was not provoked in him.
5. In any event, even if the 'ordinary person' test is applied, it is unlikely that Mr Adcock would have been incited to any of the relevant emotions because of his particular characteristic as a friend (or at least friendly acquaintance) of the applicant who was walking with him in the park.
6. Nevertheless, I will assume simply for the purposes of analysis that the relevant audience was the ordinary member of the class of persons being non-Jewish members of the public present in park when the words were uttered. [I will put to one side for the purposes of my analysis that there is no evidence of anyone other than Mr Adcock actually hearing the words said.] This class of persons is even broader than (say) the readers of a particular publication (considered in Catch the Fire). The class here is randomly comprised and thus as broad as a class could possibly be. It could include anyone. Thus, consideration might be given to how any ordinary (not necessarily reasonable) person might perceive the words uttered.
7. The applicant did not provide any evidence of what the perception of an ordinary non-Jewish person might be. I accept that it might have been difficult to do so with such a broadly comprised class. If 'judicial notice' is taken of what such an ordinary person might perceive, I am not satisfied that they would perceive the words uttered as anything more than venting, in the context of a heated altercation between two men. This is so although such an ordinary person might well characterise the words as being completely untrue and malicious.
8. However, I doubt that the ordinary non-Jewish person would perceive the words as going beyond venting, as encouraging in them any of the relevant emotions, as members of the broader audience to whom the words were directed (even on a generous interpretation of who comprised the 'audience', as anyone in the park, not just the applicant).
9. In a sense the analysis is circular. In asking how this broader audience might perceive the words, and in concluding that they would be unlikely to interpret them as going beyond venting between the parties (being specifically directed by the respondent to the applicant personally), to encourage in them any of the relevant emotions, this confirms the view that the intended audience was limited to the applicant. Following the Court of Appeal's analysis, the question is whether non-Jewish persons were incited to any of the relevant emotions. Section 8 is not directed to the effect of the words on the person or persons about whom they were said.[13]
10. For the reasons given, I am not satisfied that there has been a contravention of s 8, applying its wording as interpreted by the Court of Appeal in Catch the Fire. I am bound by those words and that interpretation. I will therefore order that the application be dismissed.

[1] The applicant also sought monetary compensation in his original claim but clarified at the hearing that he no longer claims that.

[2] Section 1(a) expresses one of the Act's purposes as 'to promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief and activity'.

[3] [2006] VSCA 284; (2006) 15 VR 207.

[4] Neave JA at paragraph 159, agreeing with Nettle JA at 19.

[8] Neave JA also held that the applicant need only prove that the words were capable of causing or likely to cause the relevant emotion towards the applicant or the Jewish class of persons: paragraph 154.

[12] Nettle JA recognised that this was so, later observing that Neave JA had demonstrated that it will not always be the case that one may assume a degree of reasonableness among an audience: para 116.

[13] See for example, Nettle JA's analysis at paragraph 76 where His Honour concluded that 'the affront to the feelings of the Muslim witnesses was largely of not wholly irrelevant. The concentration needed to be upon the members of the audience who were not Muslims'.