Comensoli v Passas

[2019] NSWCATAD 155

NCAT Administrative and Equal Opportunity|2018-09-24

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2018-09-24

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

Reasons for decision

On 15 November 2017, the results of the Australian Marriage Law Postal Survey were published, to the effect that over 61% of those surveyed voted "Yes" to the question "Should the law be changed to allow same-sex couples to marry?" (the Yes vote). In celebration of the Yes vote, Daniel Comensoli (the Applicant) placed a large rainbow flag outside his apartment residence in Ashfield, NSW.
This decision concerns a complaint by the Applicant that on 15 November 2017 the respondent, Julie Helen Passas, engaged in conduct amounting to unlawful vilification on the grounds of homosexuality.
On 27 March 2018, the Applicant complained to the Anti-Discrimination Board (ADB) about the respondent's conduct, alleging that it amounted to unlawful homosexual vilification under ss 49ZS and 49ZT of the Anti-Discrimination Act 1977 (the AD Act). On 26 April 2018, the Applicant lodged a further complaint to the ADB about the Respondent's conduct, alleging that it amounted to unlawful victimisation under s 50 of the AD Act.
Following correspondence with the Applicant and Respondent, on 4 June 2018 the President of the ADB referred the complaints of unlawful homosexual vilification and unlawful victimisation to the Tribunal pursuant to s93C of the AD Act.
At the hearing on 24 September 2018, the Applicant tendered the following documents and records: 1. President of ADB's report and attached material; 2. Statement of Daniel Comensoli; 3. Photograph of Daniel Comensoli with rainbow flag on balcony; 4. Statement of Ashleigh Di Natale dated 23 July 2018; 5. Video recording of alleged altercation with the respondent; 6. Transcript of voice recording of alleged altercation with the Respondent; 7. Correspondence to the Tribunal dated 12 September 2018;
The Respondent tendered the following documents: 1. Affidavit of Julie Helen Passas dated 8 August 2018; 2. Statement of Janette Arthur dated 6 August 2018; 3. Statement of Allan Jones dated 14 August 2018; 4. Statement of Thomas Carrie dated 14 August 2018; 5. Points of defence.

[2]

Legal Principles

The provisions of the AD Act making homosexual vilification unlawful in certain circumstances are ss 49ZS and 49ZT. These state: 49ZS Definition In this Division: public act includes: (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. 49ZT Homosexual 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 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.
The orders that the Tribunal may make following a hearing of a complaint are set out in s 108 of the AD Act. Relevantly, these state: 108 ORDER OR OTHER DECISION OF TRIBUNAL (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, (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), (g) decline to take any further action in the matter. (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.
In Margan v Manias [2015] NSWCA 388 at [11] to [15] the following principles regarding s 49ZT expressed in Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 (Sunol) by the Chief Justice were reiterated: 11. In Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 (Sunol) this Court considered that the word "incite" when used in s 49ZT means "to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement" (Bathurst CJ at [41(a)]; Allsop P and Basten JA agreeing). Bathurst CJ accepted (at [28]) that this could cover a wide variety of conduct, but emphasised that it is not sufficient that the words simply express hatred, serious contempt for, or severe ridicule of, a person on the relevant ground; the relevant public act must be one which could encourage or spur others to harbour such emotions. That is, it must be capable of inciting such emotions. 12. The Chief Justice noted that it is well established that it is not necessary for a person in fact to be incited by the words or publication: at [29]. His Honour accepted, without finally deciding, that it is not necessary to establish an intention to incite: at [31]. 13. The Chief Justice referred to a divergence of views as to whether the public act required for a contravention of vilification provisions such as s 49ZT, is one which would incite the requisite emotion in an "ordinary reasonable" member as opposed to simply a "reasonable" member or an "ordinary" member of the class to which the public act was directed: at [32]. His Honour noted the different approaches to that question taken by the Court of Appeal of Victoria in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207 (Catch the Fire). 14. Bathurst CJ preferred the views of Ashley and Neave JJA in Catch the Fire (at [132], [157]-[158]) namely, that the question was to be answered by reference to an "ordinary" member. His Honour reasoned (at [34]) that this is because the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals and this could be measured "only by reference to an ordinary member of the class to whom the public act is directed". 15. In summarising his conclusions, the Chief Justice stated at [41(c)]: It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed.
The particular class to whom the act is directed, the audience or likely audience must be identified and considered: Sunol v Collier and Anor (No 2) [2012] NSWCA 44 at [34]; [61]; Jones v Trad [2013] NSWCA 389 at [62], [63]. In Jones v Trad [2013] NSWCA 389 at [56], Ward JA (as she then was) stated, citing Burns v Laws (No 2) [2007] NSWADT 47 at [111] that an objective test must be used to determine whether a public act had the capacity to incite the requisite emotion in an ordinary person in the class of persons in the audience or likely audience.
As stated in Burns v Sunol [2018] NSWCATAD 10 at [39] - [40]: "NCAT and the ADT have consistently held that the words "hatred" and "serious contempt" in the vilification provisions of the Act are to be given their ordinary meaning and have applied 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). See also Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17]."
This Tribunal accepts those definitions.

[3]

The Applicant's complaint

The Applicant lives in an apartment complex in Ashfield, and the Respondent lives in a neighbouring apartment in the same complex. On 15 November 2017, in celebration of the Yes vote, the Applicant draped a rainbow flag from his apartment balcony. Later that evening, he was in the driveway of the apartment complex when he heard the Respondent yelling at him from her apartment balcony, which faces the front of his apartment. The Respondent loudly demanded from the Applicant that he remove the flag because it was "offensive to my culture and religion". The Applicant refused, to which the Respondent loudly stated words to the effect that the Applicant should not be afforded the right to marry "until you could breastfeed and have children".
The exchange was loud enough that it could be heard by other residents in the complex and surrounding areas. The Applicant's housemate, Ashleigh DiNatale, heard the exchange from inside their apartment and corroborated the Applicant's evidence.
The following day on 16 November 2017 at approximately 7.45am the Respondent, while on her balcony, "yelled at and harassed" Ms DiNatale when Ms DiNatale was walking from her apartment to the common area driveway. The harassment was to the effect that the Respondent stated she was going to call the real estate agent or owner of their property to complain.
On 17 November 2017, the Applicant and Ms DiNatale were inside their home when they heard the Respondent speaking to their neighbour from the shared driveway, encouraging her to tell the owner of the Applicant's rented apartment that "they were disgusting people". The Applicant then began recording the conversation on his phone, from inside his apartment: Respondent: And I've put the complaint to the agent. They told them to move it. They haven't moved it. So tell Rowena [the owner] that there's a complaint… this is… I don't want her to lose money and her tenants. But she has to know that they're not good people. Neighbour: [inaudible] Respondent: Well just, um, let her know that because… I am starting to put complaints… he told lies… and he rang the police - the police just laughed at him. Because, the… under the Strata you're not allowed to drape things like this on the balcony like that. And I said to him: my culture, my religion, and my upbringing. I don't believe in this. I said: this is offensive. I said: do I have on my place vote no? You understand what I'm saying? This no and yes business. I didn't put it, because I don't want to offend people who vote yes too. And he said: this is my place, I can do what I want. And I said: Yes inside you can, but not here. And you can't walk around here in your underpants. So if you could just give her a ring and say this is… and um… whatever happens. See, he was supposed to take it off, and was told today by our agent and by his agent and he hasn't done it.
The Respondent continued to encourage third parties to contact the Applicant's landlord to object to the rainbow flag being displayed, with the intention of having him and his housemate evicted. The Applicant complained that later that evening on 17 November 2017, the Respondent had harassed another of the Applicant's friends from her balcony, loudly demanding that the friend tell the Applicant and his housemate to "remove the flag".
On 18 November 2017 the Applicant made a formal complaint to the police at Ashfield LAC regarding the ongoing harassment by the Respondent. The police visited the Respondent at her home. From his apartment, the Applicant could hear the Respondent loudly declaring that "the rainbow flag was as offensive as the flag of ISIS".
The Applicant claimed that the harassment by the Respondent of him and his housemate continued, following a complaint he made to the Inner West Council, and his publication of a post about the 15 November 2017 incident on Facebook. Ms DiNatale gave evidence that this included, on one occasion, the Respondent attempting to physically block her from exiting the apartment complex in an act of intimidation, and on another occasion yelling at her about overfilling rubbish bins.

[4]

The Respondent's response

At the time of the incidents in November 2017, the Respondent had been a councillor in Ashfield for approximately 11 years, was elected councillor of the Inner West Council in September 2017 and held the position of Deputy Mayor of the Inner West Council. She held that position until approximately 9 September 2018.
She admitted that she had asked the Applicant to remove the flag from his balcony, but denied that she had done so in an aggressive, loud, or offensive manner, or that her conduct could constitute homosexual vilification. She admitted that the conduct had taken place in public and constituted a 'public act'.
She characterised her conduct as appropriate in the context of her position on the executive committee of the apartment complex's strata, relying on the fact that the strata by-laws prohibited the hanging of towels or other items off apartment balconies. She claimed that she had received a number of complaints about the display of a rainbow flag by the Applicant, both verbal and written, from other residents and visitors to the complex.
It is unclear from the Respondent's evidence which display of a rainbow flag by the Applicant was complained about by other residents or visitors, and for what reason. Prior to the yes vote, the Applicant had displayed a smaller rainbow flag in his apartment window, which was visible to other residents and visitors. The respondent annexed to her statement a number of handwritten and typed notes dated 26 and 27 November 2017, ostensibly from other residents and visitors, which state words to the effect "I have noticed/seen/been informed of the rainbow flag at Ashfield". The notes variously refer to the location of the flag "at the doorstep", "on the wall", "on wall near front door", "on their balcony" "on the front", and the time period of the display ranges from "about 2 months", "over one month", "before council elections 09 09 2017", and "past few weeks". The Respondent claimed to have lodged a complaint with the strata managing agent, but no supporting evidence was provided from the strata managing agent.
The Respondent provided statements from three other individuals in support. Janette Arthur, a close friend, gave her opinion based on her experience and observations of the Respondent that she could not believe the allegations of "homophobia" made against her. Thomas Carrie, a local council candidate who ran on the respondent's election ticket, gave evidence that he recalled the display of the flag after the local government election on 9 September 2017, and had asked the respondent several times if he could remove it. Allan Jones stated that he had written a letter for the Respondent referring to the rainbow flag, which was delivered by his daughter to the wrong address. The letter he referred to was included as one of the notes annexed to the respondent's affidavit, and identified him as a visitor to the apartment complex "on many occasions".
The Respondent complained that the Applicant's publicity of the incident on Facebook in the context of reporting of the Yes vote by local media had resulted in "a campaign of harassment" against her at local council meetings, with protestors calling for her resignation, and her being the "brunt of many personal attacks". She also complained that the complaint against her had been previously pursued in this Tribunal by Garry Burns, and that if the Tribunal were to consider evidence from Mr Burns' complaint as provided by the ADB in these proceedings, her evidence in reply to Mr Burns' evidence should be considered.

[6]

Consideration

The determination of these proceedings relies on whether the Tribunal accepts the Applicant or the Respondent's factual version of the conduct, and then whether the conduct amounts to unlawful homosexual vilification under ss 49ZS and 49ZT of the AD Act.
The complaint by the Applicant characterised the conduct of the Respondent as comprising a number of incidents, which were broadly expressed in his statement of 10 July 2018 to be: 1. Incident occurring 15 November 2017: following the Yes vote results, the Applicant draped a large rainbow flag over his balcony. The Respondent confronted the Applicant at approximately 7pm outside his home and "in a loud voice demanded that I remove the flag because it was offensive to her culture and religion", and after the Applicant refused to do so, "loudly shouted from her balcony that only until I could breastfeed and have children should I be afforded the right to marry". 2. Incident occurring 16 November 2017: The Respondent yelled at and harassed the Applicant's housemate, stating that she would be complaining to the real estate agent. 3. Incident occurring on 17 November 2017: The Respondent loudly requested that the Applicant's neighbour tell the owner of the Applicant's apartment that he and his housemate were "disgusting people" and/or were "not good people" in an effort to have them evicted. The Respondent also requested of a visitor to the Applicant's apartment that he get the Applicant and his housemate to remove the rainbow flag. 4. Incident occurring on 18 November 2017: The Applicant heard the Respondent tell visiting police officers that "the rainbow flag was as offensive as the flag of ISIS". 5. Ongoing harassment: Unspecified ongoing harassment of the Applicant and his housemate by the Respondent following the Applicant's lodgement of a complaint with the Inner West Council.
The Applicant identified in his statement that the incidents of 15, 16 and 17 November 2017 were the subject of his complaint, amounting to contravention of ss 49ZS and 49ZT of the AD Act.
The Respondent admits that on 15 November 2017 she asked the Applicant to remove the rainbow flag he displayed on the balcony, and that this request was conduct which took place in public and constituted a "public act". She denies that her request was done in the manner alleged by the Applicant and his housemate Ms Di Natale, and that it constitutes homosexual vilification within the meaning of s 49ZT of the AD Act.
In evidence the Applicant was direct, clear and made appropriate concessions, including that the display of the rainbow flag on 15 November 2017 was in breach of the strata regulations, and that he had publicised the incident by disseminating the conversation with the Respondent on Facebook. Ms Di Natale's evidence largely corroborated the Applicant's although she did not hear the entirety of the conversations between the Applicant and Respondent, and did not hear the conversation between the respondent and police where the Respondent is alleged to have compared the rainbow flag to the ISIS flag.
In contrast, the respondent had a very poor recollection of the events she was questioned about, said that she was unable to recall specific conversations and direct speech, and was defensive and deflective in her responses to the Applicant's questioning about the specific statements and conduct he attributed to her on particular dates. She was easily inflamed when questioned about her conduct and stated in cross examination that the concept of gay marriage was offensive to her, was offensive to her upbringing and religion, and that the Applicant "made the whole thing up because of a gay issue", "turned it into a gay issue" when "it was about strata" and was "only continuing because of support for him from her political opponents". She agreed that the Applicant was entitled to hang the rainbow flag inside his property, but admitted that "I do have a problem with the flag", said it was "against what I believe in", and that the rainbow flag was "offensive to people because of what it stands for". She stated that the way she had grown up was that "marriage is between a man and a woman. People should not commit adultery. Children should respect their parents". Whilst denying that she said to Police that the rainbow flag was "similar" to the ISIS flag, she agreed that she had referred to the ISIS flag as "an analogy".
On the basis of the witnesses' oral evidence at hearing, the Tribunal prefers the Applicant's evidence to the Respondent's. The Tribunal finds that, on the balance of probabilities, the Respondent did make the statement attributed to her by the Applicant. The Tribunal therefore accepts the Applicant's evidence of the statements made by the Respondent to him and heard by him, the Respondent's conduct towards him and his flatmate Ms Di Natale, and that the Respondent's statements and conduct were made in the manner expressed by the Applicant and Ms Di Natale.
Having accepted the Applicant's version of events, the Tribunal must determine whether and to what extent the Respondent's conduct constitutes unlawful homosexual vilification under ss 49ZS and 49ZT of the AD Act.

[7]

Statements made on 15 November 2017

Section 49ZS of the AD Act defines a 'public act' for the purpose of determining conduct amounting to homosexual vilification. The Respondent admitted that her conduct on 15 November 2017 constituted a "public act" within the meaning of the AD Act, although she erroneously refers to s 38R of the AD Act, which is not relevant. Her conduct constituting a public act within the meaning of ss 49ZS and 49ZT was her loud verbal demands on 15 November 2017 that the Applicant remove the flag because it was "offensive to [her] culture and religion", and her statement that the Applicant should not be afforded the right to marry "until [he] could breastfeed and have children", which could be heard by other residents of the complex and surrounding areas.
Having found that the Respondent's statements on 15 November 2017 constituted a "public act", the Tribunal must determine whether the Applicant's conduct "incite[d] 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" within the meaning of s49ZT of the AD Act. To do so, the particular class to whom the act is directed, the audience or likely audience must be identified and considered. In these proceedings the evidence demonstrates that the audience or likely audience was the general public and residents in and near the Applicant's residence, in the inner west suburb of Ashfield, Sydney.
An objective test must be used to determine whether a public act had the capacity to incite the requisite emotion in an ordinary person in the class of persons in the audience or likely audience. The first statement made by the Respondent, that the Applicant should remove the rainbow flag because it was "offensive to my culture and religion" is objectively offensive, expressed to incite or stimulate hostility. The manner in which the Respondent made her demand was inappropriate and objectively likely to incite hatred, serious contempt or severe ridicule of homosexual persons, and other LGBTQIA+ persons for whom the rainbow flag is an accepted symbol of identity, in an ordinary member of the general public or local residents, in Ashfield, the Inner West Council area, or elsewhere.
The second statement made by the Respondent on 15 November 2017 was to the effect that the Applicant should not be afforded the right to marry "until [he] could breastfeed and have children". The objective understanding of this statement is that a person who can't breastfeed or have children should not be afforded an equal right to marry the person of their choosing. The statement seeks to legitimise serious contempt or severe ridicule of homosexual men by identifying matters from which they are biologically excluded as a means of justifying their inequality at law. It is objectively likely to rouse, stimulate, urge, stir up or animate hatred, serious contempt or severe ridicule of homosexual men in an ordinary member of the specified audience. Whilst "hatred", "contempt" and "ridicule" incorporate a broad range or spectrum of emotions, the Tribunal considers that, at the very least, the words spoken by the Respondent are objectively likely to "rouse" or "stimulate" in an ordinary member of the public or local resident "a feeling of hostility" towards homosexual men, and significant or important feelings or attitudes that homosexual men are "worthless" or of "little account", to use the Macquarie and Oxford Dictionary definitions expressed above.
We find that the statements alleged by the Applicant to have been made to him by the Respondent on 15 November 2017 were made. Whilst those statements do not make specific reference to men, homosexuality or homosexual persons, we find, on the basis of the evidence of both of the parties, that those statements were directed at the Applicant, homosexual men, supporters of the rainbow flag, supporters of same sex marriage and supporters of equal rights for LGBTQIA+ persons.
The context and substance of the interactions between the Applicant and the Respondent which form the basis for the Applicant's complaint make it clear that the Respondent believed that the Applicant was gay. The Respondent admitted that she had called the Applicant "disgusting" but in cross-examination said to the Applicant (who was cross examining her) "I don't know if you're gay. The way you speak to me is disgusting". The exchange in cross examination was a transparent attempt by the Respondent to explain away her description of the Applicant's homosexuality as "disgusting". In the Tribunal's view, there was nothing in the way that the Applicant was speaking to or questioning the Respondent which could be considered "disgusting". The Applicant was polite, thoughtful and measured in his questioning of the Respondent. The Tribunal therefore rejects the Respondent's evidence that she was unaware that the Applicant was homosexual, and her attempts to explain her statement that the Applicant "was disgusting" as referring to the manner in which the Applicant spoke to her, rather than his homosexuality.
In cross examination the Respondent denied making the statement that the Applicant should not be afforded the right to marry until he could "breastfeed and have children" on the basis that "I can't breastfeed. Heterosexual, married, many people can't have kids". Having regard to the manner in which the Applicant and the Respondent each gave their evidence, the corroboration of portion of the Applicant's evidence by Ms Di Natale, and the consistency between the views the Respondent agreed in evidence that she holds and the statements she is alleged to have made to the Respondent, we prefer the evidence of the Applicant over the evidence of the Respondent in all instances in which their evidence differs. The Applicant's words in evidence in relation to the allegation that she said that the Applicant should not be afforded the right to marry until he could 'breastfeed and have children' reaffirm our finding that the Respondent believed at all relevant times that the Applicant was homosexual.
The Tribunal accepts that the Applicant is a homosexual man and the Respondent's statements demonstrate that the Respondent believed the Applicant, as a homosexual man, should not be afforded the right to marry another man. The Tribunal finds that the Respondent's statements were made to the Applicant, in a public act, "on the ground of", "by reason of", "due to" and "because of" the homosexuality of the Applicant for the purposes of s49ZT(1) of the AD Act.
There was no claim, submissions or evidence from the Respondent that any of the exceptions expressed in s 49ZT(2)(c) of the AD Act applied, and the burden of proving that an exemption should be applied lies on the party claiming the exemption: Western Aboriginal Legal Service v Jones [2000] NSWADT 102. The Tribunal therefore finds that the conduct of the Respondent on 15 November 2017 amounted to homosexual vilification within the meaning of s 49ZT of the AD Act.

[8]

Incidents of 16 and 17 November 2017

Although in his statement the Applicant identified incidents on 16 and 17 November 2017 as separate conduct amounting to homosexual vilification pursuant to ss49ZS and 49ZT of the AD Act, at hearing these incidents and those subsequent to the statements made by the Respondent on 15 November 2017 were expressed in submissions by the Applicant and the Respondent as corroborative conduct, rather than conduct amounting to separate incidents of homosexual vilification. The Respondent's concession that her conduct constituted a "public act" within the meaning of s49ZS of the AD Act was limited to her statements of 15 November 2017.
In any event, neither of the incidents of 16 and 17 November 2017 constitute, of their own right, homosexual vilification within the meaning of s49ZT of the AD Act, for the following reasons.
The incident of 16 November 2017 involved a statement or statements made by the Respondent to Ms Di Natale, to the effect that the Respondent was going to complain to the real estate agent. The Applicant was not party to and did not hear this conversation. There was no direct evidence of what specifically was said by the Respondent, whether and to what extent the proposed complaint was in relation to the display of the rainbow flag, and no submissions directly correlating any statement or conduct by the Respondent with the elements of homosexual vilification, including whether or not this would constitute a "public act" within the meaning of s49ZS, or whether what was said had the capacity to incite hatred, contempt or ridicule for homosexual men in an ordinary person of the audience or potential audience. Even if the Tribunal were to infer on the insufficient evidence available to it (which it doesn't) that the Respondent stated that she "would complain to the real estate agent about the display of the rainbow flag", this would not objectively amount to an incitement of hatred, serious contempt or severe ridicule within the meaning of s49ZT of the AD Act.
The incident on 17 November 2017 involved a loud discussion between the Respondent and another resident, which the Applicant overheard. On the basis of the audio recording made from inside the Applicant's residence, the Tribunal accepts the evidence that the conversation was, at least, partially audible to other residents because of the Respondent's loud voice and her location outside in the apartment complex driveway. While the Tribunal accepts that the conversation took place within a residential complex, the Tribunal agrees with the Applicant's submission that the manner in which the conversation was conducted by the Respondent, by talking or yelling loudly from the common area driveway, expanded the audience beyond the parties to the conversation. The audience or likely audience were therefore the other residents of the apartment complex, any visitors to the apartment complex, and any passers-by from the general public. The Tribunal therefore finds that this conversation on 17 November 2017 constituted a "public act" within the meaning of ss 49ZS and 49ZT of the AD Act, and has identified the audience or likely audience of that public act.
The Tribunal accepts the accuracy of the transcript of the audio recording made by the Applicant and Ms Di Natale of the subject conversation on 17 November 2017, and accepts their evidence that prior to the recording commencing, the Respondent stated words to the effect of "they are disgusting people". We find, on the basis of the conversation set out in [18] above, that the Respondent was encouraging the Applicant's neighbour to inform his landlord, at the very least, that her tenants are "not good people" and that they were not complying with strata by-laws because they were displaying the rainbow flag from their balcony.
The conversation, however, makes no specific or implied reference to homosexual men or homosexuality, or characteristics of homosexuality. The Respondent expresses her complaints at her perceived conduct of the Applicant and his housemate in their refusal to remove the rainbow flag and comply with her understanding of the strata by laws, not because the Applicant or his housemate (individually or together) were homosexual or had characteristics pertaining to homosexual persons. Stating that the Applicant and/or his housemate were "disgusting people" is offensive and may incite hatred towards, serious contempt for, or severe ridicule of them, but the conversation does not go so far as to support a finding of a causal connection between the statement and the ground of homosexuality of the Applicant or other homosexual persons. Accordingly, the incident of 17 November 2017 does not constitute a separate incident of homosexual vilification within the meaning of s49ZT of the AD Act.

[9]

Remedy

The Applicant sought $10,000 compensation from the Respondent and a public apology, to be published in the Inner West Courier Newspaper within 4 weeks of the release of the Tribunal's decision. The Respondent submitted that the claim for $10,000 compensation was not supported or substantiated by evidence from the Applicant. The Respondent provided evidence from friends to the effect that their experience of her interactions with people demonstrated that she was not homophobic, and treated people fairly.
The finding of the Tribunal is that on the occasion of 15 November 2017, the Respondent's conduct amounted to homosexual vilification within the meaning of s49ZT of the AD Act. The supporting character evidence provided by the Respondent is therefore of little weight to the Tribunal's determination of any remedy to the Applicant for the Respondent's conduct.
The audience and likely audience of the Respondent's conduct on 15 November 2017 is significant to the remedy being sought by the Applicant because, at the time of the incidents, the Respondent was an elected councillor on the Inner West Council and the appointed Deputy Mayor. The Tribunal accepts the Applicant's submissions that the Respondent is a prominent public figure, and was known to and represented local residents in that area at the time of the incidents in November 2017. Whilst the Tribunal accepts that the Respondent's conduct was done by her in her private capacity, rather than as a member of the local council, her position on the local council at that time and in previous years amplifies the effect or impact that her conduct has or is likely to have on the audience and supports the remedy sought by the Applicant of a public apology by the Respondent to be published in the local Inner West Newspaper.
The most recent decision of this Tribunal in relation to s49ZT of the AD Act, Burns v Smith [2019] NSWCATAD 56 at [83] to [86], provides a useful summary of the relevant considerations in determining whether and to what extent compensation should be ordered pursuant to s108(2) of the AD Act once homosexual vilification is substantiated: 83. The Tribunal may award compensation in appropriate cases pursuant to s108(2) of the Act and is obliged to avoid making an award that, by being excessively low in monetary terms, would tend to trivialise or diminish respect for public policy, as stated in Alexander v Home Office [1998] 1 WLR 968 at 975 and frequently referred to and applied in this Division of NCAT and its predecessor, the Administrative Decision Tribunal. 84. In R v D & E Marinkovic [1996] EOC 92-841 two awards of $25,000 each were made in relation to vilification. Since then other cases such as Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers [2001] NSWADT 32 an award of $15,000 for racial vilification was made as well as an award of $15,000 in relation to racial discrimination. These awards were not disturbed upon appeal. In Carter v Brown [2010] NSWADT 109 orders was made for compensation of $20,000 by one Respondent and $15,000 by another arising from homosexual vilification and victimisation, which consisted of a number of incidents. In Margan v Taufaao [2017] NSWCATAD 216 an award of $10,000 was made in relation to homosexual vilification consisting of words and a vicious assault. In Burns v Sunol (No 2) 2018 NSWCATAD 120 this Tribunal made an award of $2,500.00 in relation to homosexual vilification suffered by the Applicant. Thus, awards in vilification matters have varied, depending on the circumstances of the case. 85. Compensation pursuant to the Anti-Discrimination Act is sui generis. Awards in one case do not bind a later Tribunal, which must make a decision based on the facts before it. 86. Each case must be assessed in light of its own circumstances. One of those circumstances to be considered in this case is the failure to lead medical or up to date psychological evidence, which would have greatly assisted the Tribunal to determine the severity of the impact of this post and the conduct which followed on the Applicant.
There was no medical evidence provided by the Applicant justifying an award of compensation, and no evidence of any specific pecuniary losses or damage suffered by the Applicant as a result of the Respondent's conduct. In Margan v Taufaao [2017] NSWCATAD 216, after reviewing the cases involving complaints of unlawful vilification under the Anti-Discrimination Act where damages for "non-pecuniary harm" were awarded, the Tribunal concluded at [99] that the awards were in the range of $1,500 to $20,000.
The timing context of the Respondent's conduct on 15 November 2017 is relevant to the determination of the level of non-pecuniary harm suffered by the Applicant. As the Applicant submitted, 15 November 2017 should have been a day of unfettered celebration of the Yes vote, the occasion when the rights of homosexual persons to marry whom they wish were finally publicly acknowledged and accepted. Instead, the Applicant's celebrations were publicly marred by the Respondent's acts of homosexual vilification. Whilst the Applicant publicised the Respondent's conduct in a public Facebook post and in subsequent complaints and representations to the local council, and there was a significant amount of media interest and public support for the Applicant as a result, the Tribunal does not consider that this diminished the negative impact of the Respondent's statements on the Applicant, only amplifying them to a wider audience.
While the Tribunal accepts that the Applicant experienced feelings of upset, hurt and anger as a result of the Respondent's contravention of the AD Act, the available evidence does not justify an award of damages in the sum of $10,000. In our view, considering all of the circumstances an award of $2,500 in conjunction with a published apology by the Respondent is appropriate.
In circumstances where neither party has proposed the terms of an apology for publication, the Tribunal has done so and will provide the parties with liberty to apply in relation to those terms.

Comensoli v Passas

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Judgment (11 paragraphs)

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Cases Cited (8)

Cited By (6)