Haas v Hosking

CATCHWORDS: Racial vilification - public act - whether Tribunal satisfied that words alleged were uttered

Anderson v Thompson [2001] NSWADT 11 Burns v Dye [2002] NSWADT 32 Burns v Laws (EOD) [2008] NSWADTAP 32 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 Cohen v Hargous [2006] NSWADT 209 CASES CITED: Collier v Sunol [2005] NSWADT 261 Hosking & Anor v Haas & Anor [2009] NSWSC 624 John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 Kimble & Souris v Orr [2003] NSWAADT 49 Russell v Commissioner of Police [2001] NSWADT 32 Veloskey v Karagiannakis & Ors [2002] NSWADTAP 18

APPLICANT In person REPRESENTATION: RESPONDENT A Connolly, barrister

1 The Applicant, Mr Haas, owns a holiday house situated on an estate at Moama in southern New South Wales. He occupies and owns lot 12 on the estate. The Respondent, Mr Hosking, lives at lot 15. The western boundary of each lot - which forms the rear boundary of each - abuts a public reserve, consisting of bushland on the foreshores of the Murray River.

Complaint 2 On 28 April 2008, Mr Haas complained to the Anti-Discrimination Board that, on 1 November 2007, Mr Hosking had attended Mr Haas' property and racially vilified him, by saying 'that he was not going to have fucking Jews build anything near him', or 'that he was not going to let fucking Jews build a shed near him'.

3 By the time the complaint was lodged, both men were involved in a serious dispute over whether Mr Haas had the right to build a shed near his rear boundary, abutting the public reserve. On 2 and 14 November 2007, Mr Hosking had caused his solicitors to write to Mr Haas about it. In the second letter, the solicitors revealed their instructions to commence proceedings in the Supreme Court for injunctive relief unless work ceased on the shed. Despite this, the shed was ultimately built. The facts are recited more fully in the interim judgment of Bergin CJ in Eq: Hosking & Anor v Haas & Anor [2009] NSWSC 624.

4 On 7 March 2008, Mr Hosking commenced proceedings in the Supreme Court, as foreshadowed. He sought orders, among other things, that the shed be demolished. He claimed that the erection of the shed had been in breach of covenants affecting lots in the estate. The Statement of Claim was served on Mr and Mrs Haas on 28 March 2008. Those proceedings were still on foot at the time of the hearing in the Tribunal in 2009.

5 In support of his complaint to the Anti-Discrimination Board, Mr Haas lodged with the Board two sworn statements. One was made by the occupant of lot 14, Mr Vagg. The other was made by another local resident, Mr Falzon. Each statement was sworn on 16 April 2008 before Mr Hill, who appears to have held a commission with the Victorian Department of Justice, apparently as a notary or similar. On the evidence, he was a town planning consultant engaged by Mr Haas, who assisted him in defending the Supreme Court proceedings.

6 Mr Vagg's sworn statement was in the following terms. 'On the afternoon of the 1st of November 2007 at approximately 2.30 pm Neil,s [sic] Transport Echuca was delivering a load of building materials to construct a shed at the rear of Mr Peter and Evelyn Haas's Property at [address]. Whilst unloading the shed, it was discovered that the forklift forks were too short to lift the frame. I went into Moama Garden Supplies to pickup [sic] a set of fork extensions to enable the forklift to unload the shed frame. On returning to Mr and Mrs Haas,s [sic] Property, Mr Phillip Hosking came on to the property and was standing along side [sic] the truck commenting on the frame and foundations of the shed, when he commented that he was not going to let fucking Jews build a shed near him.'

7 Mr Falzon's sworn statement was in the following terms. ''I was engaged the [sic] erect a shed at the rear of [address] for the owners Mr and Mrs Hass. [sic]

On the afternoon of the 1st of November 2007 I was attempting to unload the building material from the delivery truck with my forklift.

Whilst I was unloading the shed frame with my forklift Mr Phillip Hosking was enquiring about the shed and commented that he was not going to have fucking Jews build anything near him.'

8 Mr Haas was not present when the alleged comments were made. On his evidence, he did not learn of them until March 2008.

Jurisdiction 9 The complaint has been referred to the Tribunal for determination under section 93C of the Anti-Discrimination Act 1977. The Tribunal has power to dismiss the complaint, or to find it substantiated: section 108(1).

Legislation 10 Racial vilification is proscribed by Part 3A of the Act. Section 20C(1) provides as follows. 'It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.'

11 The meaning of the subsection has been considered by the Tribunal on a number of occasions: Burns v Dye [2002] NSWADT 32 [at 19-23]; Veloskey v Karagiannakis & Ors [2002] NSWADTAP 18 [at 21-29]; John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [12 - 14, 32 - 34] and Collier v Sunol [2005] NSWADT 261 at [40-42].

12 'Public act' is defined relevantly in section 20B to include, 'any form of communication to the public, including speaking', and any other 'conduct … observable by the public, including actions and gestures'.

13 This definition has been also considered by the Tribunal on a number of occasions: Cohen v Hargous [2006] NSWADT 209; Kimble & Souris v Orr [2003] NSWAADT 49; Russell v Commissioner of Police [2001] NSWADT 32; Anderson v Thompson [2001] NSWADT 11.

14 'Race' is defined to include 'descent and ethnic, ethno-religious or national origin'. It does not include religion alone: Khan v Commisioner, Department of Corrective Services & anor [2002] NSWADT 131. Mr Haas gave evidence, and the Tribunal accepts, that he identifies himself as being both ethnically and religiously Jewish. For the reasons given in Cohen v Hargous [2006] NSWADT 209, persons who identify themselves as Jewish and see themselves as part of the "Jewish community" constitute a 'race' for the purposes of this definition.

Issues for determination 15 In determining whether to dismiss the complaint or find it substantiated, the following issues arise for determination.

1. Whether the words complained of were said by Mr Hosking.
2. If they were said, whether they were communicated to, or in the hearing or presence of, members of the public.
3. If so, whether they incited hatred, serious contempt, or severe ridicule.
4. If so, whether such hatred, contempt or ridicule was incited on the ground of race.

16 Mr Haas bears the onus of proving his case. The applicable standard is the civil standard of proof: Burns v Laws (EOD) [2008] NSWADTAP 32.

Mr Haas' evidence 17 Mr Haas represented himself before the Tribunal. He gave oral evidence. He said that he resides in Melbourne, and attends his property at Moama when on holiday. He was not present there on 1 November 2007. He first became aware of the words the subject of the complaint when he visited Mr Vagg's home, some time after being served with the summons in the Supreme Court proceedings. He thought his visit occurred on the Easter weekend of 2008. In that year, the Easter weekend fell between 21 and 24 March 2008. On the evidence, he had not been served with the summons by that time, though he was certainly aware of the dispute with Mr Hosking. In any event, whether or not he knew by that time that the proceedings had been commenced, he was well aware of Mr Hosking's intention to commence proceedings, and that the dispute over the shed was a live issue between the two men.

18 Mr Haas said that, on his way to Mr Vagg's house, he and his wife met a family which had recently settled in the neighbourhood. They asked him whether he was Jewish. He replied with words to the effect, "Yes I am, do I have horns?" They were not unpleasant to him, but he was puzzled by this encounter. When he arrived at Mr Vagg's house, Mr Haas said words to the effect, "What is this about being Jewish all of a sudden?" Mr Vagg took his daybook from a drawer, and pointed to a handwritten entry in capital letters, written by him. The daybook is before the Tribunal. The entry read as follows [reproduced as written]: 'PETER HAAS SHED NIELLS SEMI TRUCK ARRIVED ON 1.11.07 ABOUT 2.30? AFTERNOON MICHELLE WITH FORK LIFT UNLOADING. SHORT FORKS I WENT TO NURSERY AND GOT EXTENSION FORKS. PHIL HOSKING CAME WANTED TO HAVE LOOK. REMARKED ON FRAME FOR ROOMS. + TOILET DRAINAGE SAID HE WASN'T GOING TO LET A F. JEW BUILD ANYTHING THAT WAY. WENT HOME AND CAME BACK WITH VILLAGE GOVERNANCE WHICH HE SAID AN OUTBUILDING MUST BE 5 METRES FROM MAIN BUILDING. HE LEFT AND SAID HE WOULD RING SOLICITOR AND IF NO ONE WOULD SUPPORT HIM HE WOULD GO IT ON HIS OWN: HE RANG ME THAT NIGHT AND ASKED IF I HAD BEEN IN TOUCH WITH SOLICITOR I TOLD HIM I WOULD BE NEUTRAL. HE SAID HE HAD RUNG 6 OTHERS. I RANG DAVID + COL DOUGLAS AND TOLD THEM TO BE WARY AND I WOULDN'T DO ANYTHING'

19 The words attributed to Mr Haas in this entry are not entirely the same as those attributed to him in Mr Vagg's sworn statement.

20 Mr Vagg did not inform Mr Haas of this conversation until the Easter weekend of 2008. On that occasion, Mr Vagg told Mr Haas, 'That's what took place'. Mr Haas asked if Mr Vagg would be prepared to make a statutory declaration or give evidence in court. Mr Vagg said yes. Mr Haas asked who else was there. Mr Vagg said that Mr Falzon had been present.

21 Mr Haas had known Mr Falzon for some time. He had retained Mr Falzon to build things for him. He rang Mr Falzon, and asked whether he (Mr Haas) had been called a 'fucking Jew'. Mr Falzon neither confirmed nor denied this. Instead, he replied, 'Talk to Lindsay and you'll know exactly what has happened.'

22 Mr Haas asked Mr Vagg and Mr Falzon each to attend the offices of Mr Hill in Moama to make a statement. On 16 April 2008, each witness signed a separate statement, which was lodged by Mr Haas with the Board in support of his complaint, and tendered before the Tribunal. The contents of each is reproduced above.

Mr Vagg's evidence 23 Mr Vagg gave oral evidence to the following effect. He said that on 1 November 2007, he had been walking in the public reserve. On his return, he saw a semi-trailer parked on a track which ran north-south at the rear of Mr Haas' property. The semi-trailer was pointing in a southerly direction. He saw Michael Falzon unloading the frame of a shed from the semi-trailer, using a forklift. He had already unloaded much of the material, but the forks of the forklift were too short to unload the larger bundles in the middle of the trailer.

24 To assist, Mr Vagg went to his son's nearby nursery, and returned with larger forks. He and Mr Falzon put the forks on the forklift. Mr Falzon lifted the bundles and placed them about 30 to 50 feet away on a nearby concrete slab, which had already been poured near the south-western boundary of Mr Haas' property.

25 Mr Hosking then came and asked what was going on. He remarked that there appeared to be divisions for a room, and an outlet for a toilet. He came close to the truck and said to Mr Vagg, "I am not going to let fucking Jews build a shed near me".

26 When Mr Hosking uttered the words alleged, the three men were standing on the track, between the semi-trailer and Mr Haas' rear boundary. Mr Vagg was facing to the west, but he could not recall where the other two men were facing. They were close to the forklift, which was adjacent to the centre of the semi-trailer. He did not say exactly how far the men were standing from him at the time. By then, he thought that Mr Falzon had turned the forklift off and alighted from it. There was further conversation about covenants on the estate and engaging solicitors.

27 Mr Hosking then spoke with Mr Falzon for quite a while. Then a couple of people walked past while Mr Hosking was speaking on the opposite side of the truck from Mr Vagg.

28 Mr Vagg later helped pull the forks off the forklift, took them back to his son's nursery, and went home.

29 That night, Mr Hosking rang Mr Vagg, told him that Mr Hosking and six other people were going to take legal action against Mr Haas, and asked Mr Vagg to join them. Mr Vagg declined. He rang two other residents, warning them to have nothing to do with the matter. He retired to bed.

30 Mr Vagg said that his daybook entry was made on the evening of 1 November 2007. It was pointed out to him that the letter 'F.' in the phrase 'A F. JEW' appeared some way above the line on which the rest of the sentence had been written, and that, judging from the greater spaces between other words on the same line, that letter might have been inserted after the entry was first made. He strenuously denied any possibility that the letter F was inserted after the entry was made.

31 The same possibility was put to him in respect of the words "AFTERNOON" and "GOVERNANCE", which likewise appeared above the line, and for which there was not sufficient space between the adjacent words, necessitating an upward slant so as not to collide with the next word. He admitted that the first of these words might have been added as late as the afternoon of 2 November 2007. He doubted that the second had been added later, but could not remember.

32 On the day after he had given his evidence, Mr Vagg returned to the Tribunal, explained that he had thought about the matter, and accepted that the letter "F." might have been inserted after the entry had been made.

33 Having regard to this admission, and to the physical appearance of the text, the Tribunal finds that the letter 'F.' was inserted after the entry was made, as were the words "AFTERNOON" and "GOVERNANCE". The evidence does not establish when the letter 'F' was inserted, save that it probably occurred on or before 24 April 2008. The Tribunal cannot be satisfied that the letter formed part of a contemporaneous record made by Mr Vagg. For that reason, it cannot be established that the conversation was fresh in his memory when he inserted it.

34 The vigour and conviction with which Mr Vagg initially denied the suggestion of a later insertion, and his initial unwillingness to accept that possibility, even in the face of compelling physical evidence to that effect, and in circumstances where the conversation itself had occurred - and the entry had been made - long ago, suggest that Mr Vagg, when mistaken, can be reluctant to accept that possibility, and can believe strongly in assertions later found to be in error.

35 The words 'that night' in the daybook entry were intended to refer to the evening of 1 November 2007. If the entry as a whole was written on that evening, as Mr Vagg suggested, it is likely that he would have written 'tonight' or 'this evening'. The words used tend to suggest that the entry was written on some later date.

36 Some assistance can be derived from the daybook itself. The page of the daybook on which the entry is written follows another page containing an entry that must have been written on 10 December 2007 or later, because it refers to a conversation which occurred on 10 December 2007. The Tribunal infers that the entry about the events of 1 November was made on an unknown date which fell some time after 10 December 2007.

37 For those reasons, it is likely: a. that the entry as a whole was written a considerable time after the conversation which it purports to record, b. that the letter 'F.' was inserted later still, and c. that neither the letter 'F.', nor the remainder of the record, constitutes a contemporaneous record of the conversation of 1 November 2007.

38 Mr Haas urged the Tribunal not to draw such inferences, because entries in Mr Vagg's daybooks - of which a number were tendered - are not always in chronological order. The Tribunal is satisfied that the entries in the daybook in question were often made consecutively, even if not always, whether or not Mr Vagg adopted that practice in other daybooks.

39 As the Tribunal is not satisfied that the daybook entry was a contemporaneous record, and is satisfied that it was added to after it was first written, its reliability as an accurate reflection of the conversation of 1 November 2007 is diminished, and the Tribunal must approach that evidence with appropriate caution.

40 Before the Tribunal, Mr Vagg explained that he was 'a little hard of hearing', though he claimed that his hearing at close range was good. Early in 2007, he had been prescribed a hearing aid. The Tribunal finds that by that date, in all likelihood, his hearing was poor. On 1 November 2007, he was not wearing his hearing aid. That gives rise to a real possibility either that Mr Vagg misheard Mr Hosking, or that he may not have been sure of what he heard on the day, or both. He may have deliberately refrained from writing the letter 'F.' when first drawing up his written account, because of that uncertainty. The existence of such a possibility means that the Tribunal must, once more, approach his evidence with appropriate caution.

41 On 27 November 2007, Mr Vagg caused plans for a substantial shed to be drawn up. They are before the Tribunal. Mr Vagg admitted in cross-examination that he had been planning to build such a shed as early as October 2007. The plans were submitted to Council for approval, and notified to Mr and Mrs Hosking by letter from the Council dated 9 January 2008. Counsel for Mr Hosking submitted that this provided a motive for Mr Vagg to support Mr Haas in any dispute with Mr Hosking over the right to build a shed, or in connection with such a shed.

42 Whether or not that is so, the Tribunal is not satisfied that Mr Vagg has deliberately misled the Tribunal, or tailored his evidence to support Mr Haas. However, there is at least a prospect that Mr Vagg's desire to build such a shed might have inclined him - either consciously or unconsciously - to resolve in Mr Haas' favour any doubts he may have had about the events in question. For that reason, Mr Vagg's desire to build a substantial shed presents further grounds for approaching his evidence with appropriate caution.

43 Mr Vagg gave evidence that he saw members of the public walking in the public reserve near the rear of Mr Haas' property. In context, he was talking about the period after his conversation with Mr Hosking in which the alleged vilification had occurred. He did not give evidence that any such persons were in the vicinity during the conversation at the truck between himself, Mr Falzon and Mr Hosking. He later alleged in cross examination that two people walked past when he was standing at the truck with Mr Falzon and Mr Hosking, though he did not say whether they were present when the alleged words of vilification were uttered.

44 This was not mentioned in his evidence in chief, even though that evidence dealt with the presence of members of the public. His evidence that two people walked past when he was standing at the truck was not corroborated by any other witness.

45 In the circumstances, the Tribunal approaches that evidence also with caution. Taken at its highest, it does not go so far as to establish that any members of the public were present, or within earshot, when the words of vilification were allegedly uttered by Mr Hosking.

46 For the reasons given, the Tribunal could not be satisfied on the strength of Mr Vagg's evidence alone that the words complained of were said, or that they were communicated to, or said within the sight or hearing of, any member of the public.

Mr Falzon's evidence 47 Mr Falzon gave oral evidence to the following effect.

48 On the day in question, he worked at Mr Haas' property for some hours. There, he met Mr Vagg, who helped him unload the building materials off the truck. After taking most of the building materials off the truck, he found that the frames of the shed were too long for the forks on his forklift. Mr Vagg left and returned with longer forks. After that, Mr Hosking arrived at the property, and stayed for between 15 and 20 minutes. Mr Falzon observed Mr Hosking have a conversation with Mr Vagg. Mr Hosking and Mr Vagg were standing beside the truck. Mr Falzon was about 8 or 10 feet away. He was on the forklift. It had been turned off.

49 Initially, he gave evidence that Mr Hosking told Mr Vagg, 'there will be no shed getting up here you know, no fucking Jew going to put a shed up here'. Later in his evidence, he said that he heard only the words 'f'ing Jew' or 'f'ing Jews' uttered in that conversation, and nothing else.

50 Just as Mr Falzon was finishing the job for the day, Mr Hosking came over to him and said, 'He is only a Jew anyway Mick, is he?'.

51 Later in his evidence, Mr Falzon said that, after the first conversation between Mr Vagg and Mr Hosking, the latter went home, and came back with some paperwork. He stayed for about 10 or 15 more minutes. At the end of this, Mr Hosking had a private conversation with Mr Falzon. Mr Vagg was not party to it.

52 Mr Falzon said it was this later conversation - between Mr Falzon and Mr Hosking - to which he was referring in the final sentence of his statement. He denied that the last sentence related to anything said by Mr Hosking to Mr Vagg. On Mr Falzon's evidence, he had made no mention in his statement of the words which he now says he overheard Mr Hosking say to Mr Vagg.

53 In his oral evidence, Mr Falzon admitted to being confused. At times, the manner in which he spoke appeared to be confused. At one stage, he said that, when Mr Hosking spoke to him on the last occasion, he repeated the words, 'f'ing Jew'. Almost immediately thereafter, Mr Falzon reverted effectively to his original version of Mr Hosking's words to him: 'He's only a Jew anyway Mick, ain't he?'

54 He then oscillated between the two versions. Eventually, he admitted that he did not know whether the word 'fucking' was used at all by Mr Hosking in conversation with him. Then he admitted that it had not been said, and apologised if he had 'made a mistake'. He then resiled from this admission.

55 Given his admission, the inconsistent nature of his evidence, and the absence of any corroboration concerning the terms of the conversation between Mr Falzon and Mr Hosking, the Tribunal is not satisfied that Mr Hosking had a conversation with Mr Falzon in the terms reported in the latter's sworn statement, or in any similar terms. That conversation was the only one detailed in his sworn statement. Mr Falzon's lack of credibility on such an important aspect of his evidence adversely affects the reliability of the remainder of his evidence.

56 Mr Falzon's failure to mention in his statement any words which he heard Mr Hosking utter to Mr Vagg also reduces the credibility of his evidence on that issue.

57 Mr Falzon gave evidence that, while Mr Hosking was talking to Mr Vagg on the first occasion, Mr Falzon could hear them clearly. At the time, he was 'driving the forklift watching where I'm going, I wasn't watching everything or every second of his moves, you know my concern was to unload the truck and not to work out what Phil Hosking has to do.' Later, he was asked how noisy the forklift was, and gave evidence that its engine was a 'car engine'. He then said 'I had the forklift turned off picking up some bits of timber and I heard that ...'.

58 The Tribunal finds his evidence to be inconsistent in this respect also. At one point, he said he was driving the forklift at the relevant time. Later, he said it was turned off. He also said he was picking up bits of timber, which suggests that he was not sitting on the forklift at all. If Mr Falzon was working on the forklift at the time, and its engine was turned on - as he said originally - it seems unlikely that he would have overheard a private conversation between two men standing 8 to 10 feet away over the sound of a 'car engine', unless they spoke loudly. On the contrary, he gave evidence that Mr Hosking was chatting 'in a normal speaking voice'. In the result, it is unclear whether, at the point when the relevant words are alleged to have been said to Mr Vagg by Mr Hosking, Mr Falzon was working on the forklift, or its engine was on. It is also unclear why, if Mr Falzon could indeed hear the conversation clearly as he said, he was able to hear only two words of it, and not the remainder.

59 In the circumstances, the Tribunal cannot be satisfied that Mr Falzon was able to hear the conversation between Mr Vagg and Mr Hosking clearly, or at all.

60 Mr Falzon also gave evidence that Mr Haas had rung him and asked whether the words 'fucking Jews' had been used by Mr Hoskings. Mr Falzon's evidence as to his own response differed markedly from the version given by Mr Haas. Mr Haas told the Tribunal that Mr Falzon had not confirmed that those words were used, but instead referred him to Mr Vagg. Mr Falzon said that he confirmed by telephone that the relevant words had been said.

61 That issue was likely to have been of far greater importance to Mr Haas than to Mr Falzon. For that reason, and having regard to the unsatisfactory nature of Mr Falzon's other evidence, the Tribunal finds that Mr Haas' version is likely to be more reliable than that of Mr Falzon, and prefers the evidence of Mr Haas. It finds that, as early as the Easter weekend of 2008, Mr Haas had suggested to Mr Falzon by telephone that Mr Hosking had used the words 'fucking Jew', and that Mr Falzon had declined to confirm this, instead referring Mr Haas to Mr Vagg.

62 The first time Mr Falzon confirmed that those words had been said to anyone was on 16 April 2008, when he attended the offices of Mr Hill at Moama for the purpose of giving his sworn statement. On that occasion, Mr Falzon said that he and Mr Vagg attended the offices of Mr Hill together, though they travelled there in separate vehicles. Their appointment had been organised by Mr Vagg. Just before each met with Mr Hill separately to prepare and sign his statement, Mr Vagg and Mr Falzon discussed what had happened on 1 November 2007. Mr Falzon did not describe his conversation of 16 April to the Tribunal in detail, but he did admit that he told Mr Vagg the evidence that he was about to give.

63 The Tribunal finds that, before preparing their statements, Mr Falzon and Mr Vagg probably discussed their evidence together. They may not have realised that this would compromise the integrity and weaken the probative value of that evidence. That, however, has been the natural result. Its reliability is diminished by the discussion which occurred between the two men prior to giving their statements on 16 April 2008, and by the disclosure to Mr Falzon of Mr Vagg's allegation on or about the Easter weekend of 2008.

64 Mr Falzon gave evidence that, over the many hours he spent unloading and erecting the shed, he observed a number of people walking along the track at the rear of Mr Haas' property. He said that, when the words of vilification were uttered by Mr Hosking to Mr Vagg, they were both 'chatting alongside the truck'. The Tribunal finds that the truck was standing on the track. Mr Falzon admitted that he did not notice anyone there when Mr Hosking was on the track. The Tribunal infers that Mr Falzon saw no members of the public present when the words of vilification were uttered to Mr Vagg.

65 Mr Falzon did not suggest that members of the public were present when Mr Hosking uttered words of vilification to him. On the basis of Mr Falzon's evidence, that is likely to have been a private conversation, held at the rear of Mr Haas' property.

66 Having regard to this evidence, and to the contradictory nature of Mr Vagg's evidence on the issue, the Tribunal is unable to be satisfied that there were any members of the public within sight or within earshot, when the alleged conversation took place between Mr Hosking and Mr Vagg, or between Mr Hosking and Mr Falzon.

67 If any conversations did occur between these men, they were likely to have been private in nature, conducted in normal conversational tones, on or adjacent to private property, and were not intended to be overheard by anyone except the parties to those conversations.

68 There is no evidence that the conversations were in fact overheard by anyone else, or intended to be so overheard.

Mr Hosking's evidence 69 Mr Hosking gave evidence that, on 1 November 2007, he had been on his verandah when he saw Mr Vagg and Mr Falzon working at the rear of Mr Haas' property. He walked over to them, and had a number of conversations with Mr Vagg about the nature of the shed which was to be erected. He strenuously denied having using the words 'fucking Jews' or 'fucking Jew'. He said that he does not swear. He said that, until 1 November 2007, he did not know that Mr Haas was Jewish. He learned that only when speaking with Mr Falzon on that occasion, after first conversing with Mr Vagg. Mr Falzon complained that he was not being paid the sum he wished to erect the shed, and remarked that Mr Haas was Jewish. Mr Hosking admitted to saying, "Yes, Jews sometimes can be hard to get extra money from".

70 These words were not the subject of complaint before the Board. Before the Tribunal, it was not submitted that, if said, they contravened section 23C. In any event, that is not an issue which falls for determination in these proceedings.

71 Mr Hosking denied seeing any members of the public in the vicinity at the time when he was speaking with Mr Vagg or Mr Falzon. His evidence in that respect is consistent with that of Mr Falzon, and the Tribunal makes findings in accordance with it.

72 Mr Hosking said that, by the middle of January 2008, Mr Vagg had obtained Council approval to build a substantial shed on his own property, near Mr Hosking's bedroom window. On the advertisement of the development application, Mr Hosking had objected to Council, but to no avail.

Mrs Hosking's evidence 73 A sworn statement of Mrs Hosking was tendered before the Tribunal. She also gave oral evidence. She was at her home when the alleged conversations were held. She did not overhear them. She gave character evidence concerning her husband. Character evidence is dealt with generally below.

Character evidence 74 Character evidence was given by or on behalf of the parties - some of it oral, some written - concerning Mr Hosking or Mr Vagg. The Tribunal has had regard to that character evidence, and to the cross-examination which occurred in relation to it. The Tribunal is satisfied that both Mr Vagg and Mr Hosking are each persons of good character, though for the reasons stated, it has found the evidence of Mr Vagg to be unreliable in certain respects.

75 The Tribunal is also satisfied that Mr Haas has been genuinely affronted by the remarks attributed to Mr Hosking. Had they been made, he would have had good reason to be affronted. Whether the remarks would have constituted racial vilification is a different issue which, in the result, it is unnecessary to determine.

76 For the reasons given, the Tribunal is unable to be satisfied, even on the mere balance of probabilities, that on 1 November 2007 Mr Hosking: a. uttered the words alleged in Mr Vagg's statement, or in his oral evidence or daybook entry, or any similar words; b. uttered the words alleged in Mr Falzon's statement or in his oral evidence, or any similar words, or c. communicated any such words as alleged by either witness to a member of the public, or within their hearing or presence.

77 The Tribunal is satisfied that any words uttered by Mr Hosking to either witness formed part of a private conversation, conducted in a normal conversational tone, which occurred on Mr Haas' property or on the track immediately adjacent to the boundary of the property, and was not intended to be overheard by anyone other than the participants.

78 As the Tribunal is not satisfied that the alleged words of vilification were uttered, or that they were uttered in the presence, or within the sight or hearing, of any member of the public, it is unnecessary to determine whether they otherwise satisfied the requirements of section 20C(1).

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