JM and JN v QL and QM

Court of Appeal (Vic)|2009-07-03

CITATION: JM and JN v QL and QM [2010] NSWADT 66 This decision has been amended. Please see the end of the decision for a list of the amendments.

APPLICANTS JM and JN PARTIES: RESPONDENTS QL and QM

BEFORE: Hennessy N - Magistrate (Deputy President); Monaghan-Nagle L - Non-Judicial Member; Weule B - Non-Judicial Member

CATCHWORDS: Discrimination, homosexuality and HIV/AIDS vilification

LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997

Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Sharma v Legal Aid Queensland [2002] FCAFC 196 Qantas Airways v Gama [2008] FCAFC 69 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

APPLICANT I Chatterjee, solicitor REPRESENTATION: RESPONDENT Agent [Name not disclosed]

The complaints of homosexual vilification against QM are substantiated in part 2. The complaints of HIV/AIDS vilification against QL and QM are substantiated in part 3. QM is to pay JM damages of $1500 within 28 days of the date of these reasons ORDERS: 4. QM is to pay JN damages of $1500 within 28 days of the date of these reasons 5. QL is to pay JM damages of $3,500 within 28 days of the date of these reasons 6. QL is to pay JN damages of $3,500 within 28 days of the date of these reasons 7. Any application for costs is to be made within 28 days of the date of these reasons. Any reply to that application is to be made within a further 28 days. Any application for costs will be determined 'on the papers' after that time.

1 Following the hearing, the applicants applied for certain confidentiality orders to be made in these proceedings. The respondents replied in writing. Having considered those submissions, we are satisfied by reason of the confidential nature of the applicants' HIV positive status, that the following orders should be made pursuant to s 75(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act): 1. The disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the applicants is prohibited. 2. The doing of any other thing that identified or may lead to the identification of the applicants is prohibited. 3. The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence is before the Tribunal is prohibited.

2 We have written this decision in a way which should not lead to the identification of the applicants. We have not referred to the applicants, the respondents or any witnesses by name and have not identified the location in which the applicants lived. While we have not made a specific order that the identities of the respondents or other witnesses not be disclosed, or that locations and business names not be disclosed, it follows that if those details are disclosed, it is likely that the applicants' identities would also be disclosed. Such disclosure would breach the second order. The decision itself can be published and distributed. Because we think it will be less confusing we have referred to the applicants in these reasons as A1 and A2, rather than JM and JN and to the respondents as R1 and R2 instead of QM and QL.

3 A1 and A2 have complained that R1 and R2 vilified them on the ground of their homosexuality and HIV status in breach of the Anti-Discrimination Act 1977 (AD Act). They were legally represented by the HIV/AIDS Legal Centre. R1 and R2 deny the allegations. Although R1 had a solicitor when he prepared his statement he was not legally represented at the hearing. An individual, whose name is not disclosed in case it reveals the identity of the applicants, acted as agent for both respondents at the hearing.

4 A1 and A2 are a gay couple living in a town in New South Wales. Both are HIV positive and receive a disability pension. They were 'employed' doing odd jobs such as bagging ice and making hamburgers for a local business but said they were paid in kind. R1 is a married man with a small business in the town. His son works as a barman at the local hotel. R2 lives by himself and has an anxiety/depressive disorder and chronic pain for which he takes medication. His doctor said that as a result of his conditions and the effects of medication, his ability to cognitively process information and communicate can be impaired.

5 The applicants and the respondents were good friends for several years. They socialised together at each other's homes and at the local hotel. Both respondents knew that the applicants were gay and R1 knew that they were HIV positive. About 10 close friends of the applicants also knew they were HIV positive. They had a common interest in Australian Rules football and R1 owned some equipment including a barbeque, some outdoor furniture and an umbrella which were stored at the applicants' residence and used by a group known as the Bay 13 supporters.

6 Apart from some relatively minor disagreements, the relationship among the four friends was harmonious until 24 November 2007, the day of the federal election. After an afternoon drinking, R1 got into a heated discussion with a friend about unions and politics in general. After being called a 'whinging pommie', R1 threw a glass of beer over the friend. A2's mother, who was also at the hotel, says that some of the beer went on her. An argument ensued between the applicants and the respondents. Both admitted exchanging profanities. The applicants left the hotel. After this incident, the applicants say that the respondents drove past their home yelling aggressively. A1 says R2 made a gesture with his hand as if he was pointing a gun at them. Both respondents deny that this occurred.

7 The next day, Sunday 25 November, R1 arranged for a mutual friend to collect the Bay 13 equipment from the applicants. The applicants left the equipment on the front lawn. When the friend arrived they also say they gave him a laptop computer which R1 had lent to A1. A1 said he had been keeping a diary which would form the basis for a 'gay novel' that was sexually explicit and intended for an adult audience. Before returning the computer he 'deleted' the novel. The applicants allege that R1 retrieved the text of the novel from the 'trash' and distributed it or offered to distribute it to other people in the town. R1 denies that he ever lent a laptop computer to A1 or distributed a copy of any document on that computer to anyone.

8 Later on the Sunday, all four were at the hotel but were not sitting together. The applicants allege that R2 was making loud comments about guns, faggots and avoiding eating hamburgers or getting ice from the business where the applicants had been working. R2 denies making any comments. Later in the day the applicants say that the respondents drove past their house waving their fists.

9 The following day, Monday 27 November, A1 decided that he would not continue to work bagging ice and making hamburgers because the respondents had been speaking to others in the town about their HIV status. Two days later the applicants say that R2 rode slowly past their house on his motorbike yelling aggressively.

10 On 8 December 2007 while at the hotel, the applicants say that R2 was speaking in a loud voice using words including 'faggots', 'poofters' and 'AIDS bastards'. R2 denies saying any of these words. A further incident occurred at the hotel on 23 December with the respondents allegedly speaking in a loud voice saying it was a pity they did not have a gun. When their lease expired in May 2008 the applicants decided to move to another small town 20 km away to avoid what they regarded as ongoing intimidation.

11 The applicants allege that various acts by the respondents constitute homosexual and/or HIV/AIDS vilification. Those acts are: 1. derogatory statements, threats and gestures made at the hotel on 24 November 2007, 25 November 2007, 8 December 2007, 23 December 2007, 28 December 2007 and 11 January 2008; 2. gestures while driving past the applicants' house on 24 November 2007, 25 November 2007, 29 November 2007 and 23 December 2008; 3. derogatory statements and gestures at or near a shop on 18 January 2008; 4. dissemination of the contents of A1's gay novel; and 5. disclosure of the applicants' HIV status to various individuals.

12 To be unlawful these acts must be public acts which incite hatred serious contempt or severe ridicule of the applicants on the ground of their homosexuality and/or HIV/AIDS status. The relevant provisions are set out below. As the respondents did not rely on any of the defences we have not referred to them.

(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 that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected). 49ZXB HIV/AIDS 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 that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected).

49ZS Definition In this Division: "public act" includes:

(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. ISSUES

13 The Tribunal must make findings of fact as to what happened, then apply the law to those findings by asking the following questions: a) does the alleged conduct constitute a public act ? A public act is defined to include "any form of communication to the public, including speaking . . ": AD Act , s 49ZS and 49ZXA. b) if so, does that act incite hatred towards, serious contempt or severe ridicule; It is not sufficient that the public act merely 'convey' hatred, serious contempt or severe ridicule. Incite means to 'urge, spur on,… stir up, animate; stimulate to do something' (New Shorter Oxford English Dictionary, 1993) or to 'urge on; stimulate or prompt to action' (Macquarie English Dictionary, third edition, 1997). Intention to incite hatred is not necessary, nor is it necessary to prove that anyone was actually incited: Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]. The audience is characterised as an ordinary, reasonable, member of the community of the class of persons to whom the conduct is directed: Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 at [18]-[19], [158] -[162]. c) if so, would the ordinary, reasonable member of the community be incited to hatred, severe ridicule or serious contempt for the applicants on the ground of their homosexuality or HIV/AIDS status?

To be unlawful the public act must incite hatred, serious contempt or severe ridicule on the ground that the person is (or members of the group are) homosexual, HIV/AIDS infected or thought to be so.

14 If the complaint, or part of the complaint, is substantiated we must decide what remedy, if any, should be given.

15 The onus is on A1 and A2 to prove that R1 and/or R2 have breached s 49ZXB and/or s 49ZT of the AD Act. 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

17 There is a significant disparity between the applicants' and the respondents' versions of events. We must be satisfied, on the balance of probabilities, that the applicants' version is true. The respondents either deny that they were present when the alleged conduct was said to have occurred or say that they did not engage in that conduct. We make some preliminary comments on the reliability of some parts of the evidence before examining all the evidence in detail. Those comments relate to: a) how soon after the events the parties recorded their recollections; b) whether one version is corroborated by evidence from others; c) mistakes or inaccuracies in the evidence; and d) any evidence of collusion or of witnesses giving evidence that was not their own independent recollection. 18 Recording of recollections. A1 says he kept a record of some of the alleged events in a book and on a calendar. He says he transcribed those entries into a notebook which he made available at the Tribunal's request. Although he initially said that he would give the Tribunal the original book and calendar in which the details were recorded, he later said that he had discarded those documents because he did not realise that they could be significant. The entries in the notebook comprise a date and a few words describing what had occurred. The respondents say that this is not an original record of events and was not written at the time of the alleged incidents. They also submit that it is implausible that A1 would not have appreciated the significance of the original records.

19 The details in the notebook were transcribed from other sources. While brief, these details were recorded soon after the relevant events and before a complaint had been made to the Anti-Discrimination Board (ADB). The applicants next recorded their recollections when they wrote a complaint in February 2008, a few months after the relevant events were said to have occurred. The applicants' statements were not made until August 2008.

20 The respondents did not reply to a letter sent to them by the President of the Anti-Discrimination Board on 20 February 2008 requesting a response to the complaint. The complaints were later referred to the Tribunal and, in compliance with directions, each respondent filed a statement in October 2008. By that time, it was nearly 12 months since the first incident had occurred. Their recollection of events, by that time, would not have been as clear as it would have been at an earlier stage.

21 Corroboration. A2's mother and a female friend of the applicants gave evidence in their case. A2's mother gave evidence about the events at the hotel on election day, about phone calls that the respondents denied making and about the effect the alleged vilification had on her son and his partner. The female friend gave evidence of a conversation she said she had with R2 about the distribution of the gay novel. The respondents submitted that despite the fact that several of the applicants' friends and acquaintances were supposed to have witnessed various events, they were not called to give evidence. In response, A2 said that despite approaching several people, none agreed to give evidence and he was not prepared to summons them because of the cost and because he did not want to alienate his friends.

22 Rule in Jones v Dunkel. Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 stands for the proposition that the unexplained failure by a party to call a witness may lead to an inference that that person's evidence would not have assisted the party concerned. The rule can operate against parties not bearing the burden of proof as well as against parties who do bear it. The applicants have explained adequately the failure to call potential witnesses and we draw no inference that the evidence from the witnesses would not have assisted them. Nevertheless, it remains the case that by not calling witnesses who may have been in a position to corroborate their version of events, the applicants are relying largely on their own evidence to discharge the onus of proof.

23 The respondents' witnesses, namely a male friend, a female friend and R1's wife and son gave evidence corroborating their version of events.

24 Mistakes and errors. R1's statement contains several admitted errors. R1 says that his solicitor prepared the statement for him and although he read it before signing, he did not pick up the mistakes. The first error was that he said his son picked him up from the hotel on 24 November and drove him home. His son gave evidence which R1 accepted in cross examination, that he was working at the hotel that day so rather than picking his father up, he gave his father a lift home after he finished work. This error, while minor, suggests that R1 failed to read his statement carefully to check that it was correct before signing it. The second error was that R1 said in his statement that he could not recall if he was at the hotel on 8 December. In oral evidence R1 said that he now remembers that he was there because that was the first weekend that the new owners took over. This error does not reflect adversely on R1's credibility given that it is understandable that he may have forgotten the significance of that weekend.

25 The third error is much more significant. R1 denied in his statement that he was having an argument with a friend at the hotel on 24 November 2007. In his statement he wrote, 'I was mucking around and I jokingly tipped some beer on [the friend's] head. I continued laughing and joking after that incident and to this day we are good mates.' R1 admitted that he actually threw his beer aggressively at the friend. It reflects adversely on R1's credibility that he was content to leave this version in his statement despite the fact that he must have known when he read it that it was untrue.

26 Evidence of collusion. R2 says he has difficulty reading and cannot use a computer. His statement bears a significant resemblance to R1's. He admits that he had a copy of R1's statement when he prepared his statement but says that there was no other input from R1. R2 said that a female friend helped him write it and a male friend typed it for him. The respondents submitted that R2 did not understand what was required of him and that he was not aware that he could not copy portions of R1's statement. Despite his poor literacy and his understandable lack of knowledge of the legal system, it reflects adversely on R2's credibility that he made very little attempt to independently record his own recollection of events. If those recollections were unclear he should have said so rather than copying parts of R1's statement. To the extent that R2's statement mirrors that of R1 we have not given it a great deal of weight.

27 Various comments and threats were alleged to have been made at the hotel on 24 November, 25 November, 8 December, 23 December 2007, 28 December 2007 and 11 January 2008.

28 Evidence. A1's notebook contains the following entry: 24-11-07 Glassing incident at pub. Threats of punching us out by [R2]. Bay 13 gear wanted back. Drive by slowly.

29 A1's written statement contains the following account of the election day incident: At (the hotel) [R1] became suddenly enraged…and yelling about how it was his town and he didn't want people coming here and trying to take over, then he swung his beer glass at and narrowly missed the face of this [friend]. The beer from [R1's] glass went over A2's Mum, (name deleted) who was sitting close by . . . ….Then we all walked from the veranda, as we were walking to [A2's Mum's] car which was parked directly beneath the veranda R1 suddenly started ranting and waving his fists at us yelling 'I'm going to get you, you faggots'. Then [R2] yelled 'Gonna bash you two faggots, you won't see it coming'. They both appeared so angry at the time, that [A2] and I decided to get out of there.

30 In the complaint to the ADB, written on behalf of himself and A2, A1 said that R2 "leaned over the pub veranda and shouted 'I'm going to fucking bash you two faggots' then fisted the air at us." A1 said that he had had 5 or 6 beers but was not as drunk as the respondents. He also admitted in oral evidence that he 'possibly' raised his finger at the respondents when they were leaving.

31 A2's evidence was that: At the pub, [R1] and [R2] both turned upon [A1] and I. [R2] said 'I'm going to get you in the street, I'll come up behind you and just get you. You won't even know its going to happen'. [R1] was saying 'You mongrel bastards, who do you think you are?'…….because of the threats of physical violence, we got in the car and left.

32 In oral evidence A2 said that they had had a few beers but that the respondents were 'really drunk.' A2 cannot remember the exact words that were used. In particular he does not know whether the word 'faggot' or 'poofter' was used. A2 said to R1, 'you've lost me, we're out of here'. They left and A2 says he jumped up on the planter box and said 'you're idiots, drunks, you've lost me.' The respondents said that they wanted all their Bay 13 equipment back.

33 The hotel's incident book records that the following incident occurred at 4 pm: A political discussion got out of control on the veranda with [R1] throwing a glass of beer over [the friend] after he called him a whingeing pom. A1 and A2 verbalised. R1 and R2 had his say. A1 and A2 left. R1 and R2 settled down. 34 A2's mother's evidence was that: As we walked down the hotel steps to my car, which was parked below the veranda, [R1] and [R2] leant over the veranda. One of them said words to the effect, in a very loud voice, 'Filthy bastards, we will get you both' and 'We want all the Bay 13 stuff back, we own it not you bastards.'

35 In oral evidence A2's mother said that the words the respondents used were, 'We will get you, dirty bastards'. The respondents sought to discredit A2's mother's evidence by submitting that she was not present at the hotel at the time. We are satisfied, given the detail in her evidence and the likelihood of her recalling an incident when beer was spilt on her that she was there and that she has done her best to record her recollections. We appreciate that memories fade over time and that she may not have recalled accurately whether she drove the applicants home or not. We reject as conjecture the respondents' submission that because A2's father was allegedly seen driving through the bottle shop earlier in the afternoon 'it is reasonable to assume that an elderly couple, after having been at the hotel for over 2 hours, would have gone home together.'

36 In his statement R1 said, 'At no time was I sitting on the veranda with either [A1] or [A2]. …I further deny making or hearing any statements such as those outlined in A2's statement'. R2's version was remarkably similar. He said in his statement that, 'At no time was I sitting on the veranda with either [A1] or [A2] as alleged.' He added that the applicants told "everyone to 'get fucked' several times, jumped over the veranda wall, shouted 'get fucked' a few more times, stuck their middle fingers up and got in their car."

37 R1's son gave evidence about the events of 24 November when he was working behind the bar, particularly about the location of his father when the incident occurred. He admitted that his memory of what had happened had been jogged by the entry in the incident book.

38 One male witness for the respondents, who was at the pub on 24 and 25 November and 8 December, said that the respondents said nothing to the applicants on those occasions. However, he could not recall A2's mother being at the hotel on election day nor could he recall either applicant being at the hotel on 8 December. We are satisfied that A2's mother was there because she has a detailed recollection of the events. We have concluded that the male witness has forgotten or did not observe many of the details about which he gave evidence.

39 Assessment of evidence and findings. The respondents admitted that this was a 'mutually aggressive, two-way insult throwing incident.' There is no corroboration of A1's evidence that R1 or R2 said the word 'faggot' on 24 November. Neither the hotel's incident book nor A1's notebook records words of that kind being used. A2's mother was relatively sober and, in our view, has the most reliable recollection of events. She did not contend that the respondents referred to the applicants as 'faggots'. On the basis of all the evidence, we are satisfied that both R1 and R2 said words to the effect of, 'Filthy bastards, we will get you both.' We are not satisfied that the word 'faggot' or 'poofter' was used or that the respondents threatened to 'bash' the applicants.

40 Public act. The words spoken by the respondents were public acts because they were communicated to members of the public who were at the hotel that day. The applicants and the respondents were not having a private conversation with one another, rather they were yelling abuse so that anyone in the vicinity could hear them.

41 Incitement. In this case, there is no reason to regard the people at the hotel on that Sunday or on any other occasion, as being anything other than ordinary, reasonable members of the community. The issue is whether the words which we have found were spoken would incite such people to hatred, serious contempt or severe ridicule, giving those words their ordinary meaning. We are satisfied that the strength of the language used and the fact that it included a comment that 'we will get you' means that this element has been satisfied.

42 Causation. As none of the words used included any reference to the applicants' homosexuality or HIV/AIDS status, there is no causal connection between the public act and that status.

43 Conclusion. That part of the complaint which alleges that both R1 and R2 said words to the effect of 'Filthy, bastards we will get you both' on 24 November 2007 does not constitute homosexuality or HIV/AIDS vilification. That part of the complaint is not substantiated.

44 Evidence. In his notebook, A1 recorded the following:

25-11-08 Bay 13 Gear/Computer returned At pub - diary revealed by [R2] at pub. 'Faggots' [R2] 'Small town' 'Gotta get a gun'

45 In their written complaint to the Tribunal on 19 February 2008, the applicants said that: On Nov 25 2007, [A1] and [A2] returned to the pub. [R2] and [R1] arrived soon after. R2 loudly commenting on his newly obtained gun licence and needing a gun 'real soon'. In front of other hotel patrons, [R2] continued, 'I'll rid this town of those filthy faggots. It's a small town, no one will want to know them when they find out they have AIDS. I'll fucking king hit them from behind, they won't know when or where. They won't even see it coming'. A1 and A2 left the hotel on advice from a friend.

46 A1's statement says: [A2] and I went to the pub and were having a beer on the veranda…[R1] and [R2] sat two tables away from us. I heard R2 say in what appeared to be a deliberately loud voice, 'All I need now is a gun, real soon. I'll rid this town of these filthy faggots. It's a small town and no one will want to know them when they find they have got AIDs. I'll fucking king hit them from behind, they won't know when or where.' R1 spoke in the same exaggerated tone as he threatened to publish a novel I had written aimed at the gay market.

47 In oral evidence A1 recalled that the local gun club had an event or activity of some kind at the hotel on that day and members, including R1 and R2, were there. R2 denies being a member of the gun club.

48 A female friend of the respondents gave evidence that the gun club meets monthly and that there was a meeting at the club on 25 November 2007. She said that R1 was not there that day and she does not know where he was. She denied that there was any meeting at the hotel.

49 A2's statement said that: From the minute [R1] and [R2] got to the pub they began to talk loudly. R2 was saying 'it's a small town, people are going to find out about the faggots and what they get up to'. [R2] said 'Pity we don't have a gun, because I'd love to be able to use a gun right now'. [R1] laughed and said, 'Yes, I wish I had one too.' R2 also said, 'Who would want to eat hamburgers or get ice from (the place where the applicants worked) with those pair of poofters working there, you'd never know what you were going to get.' (Words in round brackets added.)

50 A2 said that they stayed on the front veranda of the pub for another 20 minutes and could hear the respondents both saying 'faggots'. He said that a female friend suggested they leave to diffuse the situation. A2 clarified in oral evidence that neither of the respondents mentioned them by name but their voices were loud and every table on the veranda was full. He said they were 4 -5 metres away from R2 at the time.

51 In R1's statement he said he was at the pub with his wife at 12 noon, however, 'At no time did I speak to or about [A1] or [A2], nor did I hear anyone else make references to or about them'. R1's wife said she and R1 went to the pub for lunch on 25 November. The applicants were there but she did not hear any abusive language. R1's wife says that she and her husband had lunch with some friends that day and she went home in the middle of the afternoon. She says she returned at about 3.30 pm to pick up her husband. She gave R2 a lift home as well. The respondents' male friend said that R1 and his wife arrived at the hotel and joined him at a table nowhere near the applicants. In his words, 'No comments flowed from either parties.' The friend did not mention R2's presence. Another witness gave evidence that the gun club had their pre-Christmas shoot on that day and it would have been unlikely that gun club members would have gone to the hotel for lunch.

52 R2's statement says: Arrived at pub, [A1] and [A2] already there, but I did not say anything to them or talk to anyone else about them. I did not make any gestures towards the applicants.

53 In oral evidence R2 said that he walked to the hotel and R1's wife drove him home.

54 Assessment of the evidence. Both the applicants and the respondents admit to being at the hotel on the afternoon of 25 November. While the applicants say that the respondents abused them loudly, the respondents say that the parties ignored each other. Both R1's wife and a friend said they had lunch with R1 but did not hear him say anything to the applicants. They did not mention R2. The respondents made the point that at least two of the applicants' close friends were at the hotel that day but did not give evidence. We have not discounted their evidence on that basis. The most reliable evidence is that in A1's notebook. It refers only to comments by R2 about the diary (also referred to as the gay novel) and getting a gun. The complaint to the ADB also attributes the derogatory comments to R2. A1's statement is the first occasion on which the comment is attributed to R1. In A2's statement R1 is recorded as agreeing with R2 rather than making any independent derogatory statement. For those reasons, and because R1's version of events is corroborated by two witnesses, we are not satisfied that R1 made any of the statements attributed to him.

55 Findings in relation to R2 .The evidence against R2 is much more compelling. There was no evidence that R1 and R2 had lunch together. The evidence supports a finding that R1 and R2 were drinking together after lunch, at a time when R1's wife had left. The male friend did not mention R2 being present when he was having lunch with R1 and his wife, so it is likely that he had also left or was in another part of the hotel when the alleged incident occurred. Although the applicants did not call the witnesses that could have corroborated their version, we are satisfied that R2 made the comments attributed to him about faggots and guns and about not eating hamburgers or getting ice from the place where the applicants worked. That version is supported by A1's notebook and by the fact that the applicants' statements are sufficiently different to conclude that each relied on their own recollection. The next day A1 phoned the person he had been working for and said he could no longer work. That action was consistent with him reacting to something significant that had happened over the weekend. It is not consistent with the applicants merely having an argument in the hotel with the respondents on election day.

56 R2 had very little, if any, recollection of the events in November and December when he came to write his statement nearly a year later. While we accept R2's evidence that he is not a member of the gun club and does not have a firearms licence, we find that he was at the hotel on 25 November 2007 and that he said words to the following effect: All I need now is a gun, real soon. I'll rid this town of these filthy faggots. It's a small town and no one will want to know them when they find they have got AIDS. I'll fucking king hit them from behind, they won't know when or where. Who would want to eat hamburgers or get ice from [the place where the applicants worked] with those pair of poofters working there, you'd never know what you were going to get.

57 Public act. These acts occurred during the day in a hotel. The words were said loudly enough for the applicants and others in the vicinity to hear. They constitute public acts.

58 Incitement. The issue is whether the words which we have found were spoken would incite ordinary reasonable members of the community to hatred, serious contempt or severe ridicule, giving those words their ordinary meaning. We are satisfied that the reference to guns and the strength of the language used ('filthy faggots', 'fucking king hit them') mean that this element has been satisfied in relation to the first comment. The second comment warns people not to buy goods from the shop where the applicants work. Those comments would incite people to at least have serious contempt for the applicants.

59 Causation. The words 'faggots', 'AIDS' and 'poofters' make it abundantly clear that the incitement was on the ground of the applicants' homosexuality and/or HIV status.

60 Conclusion. The conduct set out above at [56] constitutes homosexual and HIV/AIDS vilification. The complaint is substantiated as against R2 in relation to that conduct.

61 Evidence. In his notebook, A1 made the following entry next to the date '8 December 2007': 'threats by [R2] at pub'.

62 In the complaint to the Board, the applicants wrote: Dec 8 2007 [A1] and [A2] returned to the pub. [R1] and [R2] were there. R2 said 'shoot the fucking faggots' to other patrons. [R1] reiterated that we both had AIDS and for anyone not to talk or sit with us.

63 A1's statement says: At the [pub] I recall [R2] speaking in an overly loud tone for most or all to hear, 'shoot fucking faggots'. Then I heard [R1] say words to the effect, 'that's where they belong, in the gutter, cause they've got AIDS'. Not long after this a friend, [name deleted] approached me on the steps and told me that R1 and R2 were telling people that we had AIDS and not to speak with us.

64 A2's statement says: At the [pub] [R2] was sitting two tables away on the veranda. [R2] was facing [A1] and I. [R2] kept raising his middle finger in a rude gesture and mouthing the words 'fuck off' to [A1] and I. [R2] was also saying things like 'faggots, poofters and AIDs bastards'. [R2] was saying this loud enough so A2, [name deleted] and I could hear. I heard R2 saying, 'faggots aren't going to last in a small town'. A1 and I were extremely uncomfortable and feeling intimidated so we left the pub.

65 In oral evidence A2 clarified that these words were not spoken directly to him, but were intended for his ears.

66 R1's statement said: I do not recall if I was at the pub on 8 December 2007. If I was there, I do not have any recollection of [the applicants] being there, and I deny that I made any remarks as alleged.

67 R1 said in oral evidence that he now remembers that he was at the hotel on that day because that was the first weekend that the new owners took over.

At [pub] applicants were not present and 'I did not comment about the applicants to anybody'.

69 In oral evidence R2 said he was having lunch with a female friend on 8 December and the applicants were not at the hotel. He admitted that when he prepared his statement, the female friend had told him that she had lunch with him that day.

70 Assessment of the evidence. Both A1 and A2 gave evidence that R2 threatened them at the hotel. A1 says consistently that the threat included the words, 'shoot the fucking faggots', A2 did not say that those words were used but gave evidence that R2 said, 'fagots aren't going to last in a small town'. Given R2's admissions about the way his statement was prepared, we are not satisfied that he had any independent recollection of the events on 8 December when he wrote the statement or when he gave evidence. While we accept that he has no memory of this particular incident, we are satisfied that he made rude gestures (raising his middle finger) and told A1 and A2 to 'fuck off'. We are also satisfied that he said words to the effect of 'shoot the fucking faggots'. Despite his denials, we are also satisfied that R1 indicated to other patrons in a loud voice that they should not sit with the applicants because they had AIDS and that they belong in the gutter. We have not taken into account the hearsay evidence as to other conversations A1 gave evidence about.

71 Findings. We are satisfied that on 8 December 2007: R2 repeatedly raised his middle finger in a rude gesture and mouthed the words 'fuck off' to [A1] and [A2]. R2 repeatedly said 'shoot the fucking faggots'. R1 said in a loud voice words to the effect of 'they (referring to the applicants) have AIDS. Don't sit with them, they belong in the gutter.

72 Public act. These gestures and comments were made at the hotel when members of the public were present. The words were said loudly enough for people in the vicinity to hear. They constitute public acts.

73 Incitement. We are not satisfied that rude gestures and swearing constitute incitement. However, the remaining comments constitute incitement.

74 Causation. Other than the gestures, each of the alleged communications refers to the applicants' homosexuality or HIV status. The comment 'shoot the fucking faggots' is on the ground of homosexuality. The comment about having AIDS is on the ground of HIV/AIDS infection and was made on that ground.

75 Conclusion. That part of the complaint which alleges that R2 made the following comments on 8 December 2007 is substantiated: 'Shoot the fucking faggots'.

76 That part of the complaint which alleges that R1 made the following comment on 8 December 2007 is substantiated:

'they (referring to the applicants) have AIDS. Don't sit with them, they belong in the gutter.'

77 Evidence. There were several incidents which are alleged to have occurred on this day. The only entry in A1's notebook is 'Drive by by [R2] Pub with [name deleted]'. The complaint to the ADB states as follows: Christmas lunch with friends at the hotel ends early due to continued intimidation by [R2] and [R1] on the same veranda we are lunching on.

[R2] had his back to me, [R1] was on the opposite side of his table, facing me and the whole time we were eating [R2] was making gestures over his shoulder with one hand, a shooting type of motion. He did not look at me as he did this, just kept making the gesture over his shoulder from time to time…We were once again unable to enjoy the company of friends because of [R1] and [R2] and left.

I was standing at the bar ordering drinks. [R1] and [R2] stood behind me. They were discussing guns. [R2] said to [R1] 'pity you don't have a gun'. [R1] said, 'Well it might be a good thing we don't have one, because I'd have to use it.' [R2] said, 'I suppose we could always get one from somewhere'….This intimidated me…[A1] and I left the pub.

80 Third incident. This incident relates to conduct as the applicants left the pub. A1 gave evidence that:

When we were leaving…I looked across and saw that [R2] and [R1] had moved to the edge of the veranda and were leaning over shaking their fists in the air and yelling something which I could not hear.

81 A2 however, made no reference to the third incident in his evidence. He simply stated that: [A1] and I left the pub.

In his oral evidence A2 said: I'm not stating categorically that [R1] was there but that was my memory.

82 In his statement, R1 said he was not at the hotel that day: The day of 23 December 2007 was the day of the badminton Christmas party, which is held every year. I attended the Christmas party, and I was there from about 10am until 2pm when it finished up. I went straight home after the Christmas party and did not go to the pub at all that day.

83 R1's wife gave evidence saying that R1 was not at the hotel on 23 December because he was at the badminton club's Christmas function and went home afterwards. Another female member of the badminton club gave evidence that R1 was at the Christmas function on that day between 10 am and 2 pm.

84 R2 denied the entire incident. He said that a friend from Melbourne was visiting him that day and that after they had been fishing, he went to the hotel after 3 pm. In his statement he said: I did not go to the [hotel] until late afternoon. I did not make any comments about the applicants.

85 Assessment of evidence and finding. R1, his wife and a friend all gave evidence that R1 was at the badminton Christmas party on 23 December. Both R1 and his wife state categorically that they did not go to the hotel. The friend stated as far as she is aware, R1 did not go to the hotel that day. Given this evidence, and the fact that A2 was unsure whether R1 was present on 23 December, we are not satisfied that R1 went to the hotel on 23 December. R2 admits that he was there but did not say that R1 was with him. As the applicants' evidence is that R1 and R2 were both at the hotel together, we are not satisfied that the events the applicants recollect occurred on 23 December.

86 Conclusion. Even if the events occurred on another date, none of the communications had any connection with the applicants' homosexuality or HIV positive status and consequently were not made on that ground. This part of the complaint is not substantiated.

87 Evidence. In his notebook, A1 wrote 'more gun comments'. No mention is made of an incident on 28 December in the applicants' complaint to the ADB. A1's statement says: [A2] and I went to the pub during the morning and both went to the bar to purchase a beer…As he (barman's name deleted) was pouring the beers [R2] said 'still haven't got me shotgun'. He was about 3 metres away when he said this and he didn't appear to be saying it to any person in particular. We knew it was directed at us so we apologised to [the barman] and we left the pub.

88 A2 made no comment about this alleged incident in his evidence. R2 denied the allegations.

89 Assessment of evidence. The respondents submitted that we should not accept A1's evidence because it could have been corroborated by the barman and there would have been an entry in the hotel's incident book if a comment of that nature had been made. However, given that A2 made a note shortly after this incident and gave details consistent with that note in his statement, we are satisfied that R2 said the words 'still haven't got me shotgun' when he was about three meters away from A1.

90 Public act. This conduct constitutes a public act because it took place at a venue where members of the public were present and was observable by the public.

91 Incitement. The words 'still haven't go me shotgun' by themselves, do not incite hatred, serious contempt or severe ridicule. Someone hearing that statement who did not know the previous history of conflict between the applicants and the respondents, would not be stimulated to do something to the applicants.

92 Causation. No connection can be drawn between R2's comment and the applicants' HIV status or homosexuality. The conduct was not made on the ground of HIV/AIDS or homosexuality.

93 Conclusion. This part of the complaint is not substantiated.

94 Evidence. In his notebook A1 recorded that R2 said the following words at the bar on 11 January, 'Where's me shot gun?' In their complaint to the ADB, the applicants said: The last visit by [A1] and [A2] to [the hotel] was on Jan 11 2008 which was for two drinks, ended early due to continued threats of violence made by [R2], to [R1], towards us, in front of other patrons and staff.

95 We understand from this evidence that A1 alleges that R2 was speaking to R1 at the time.

96 A1 gave evidence that: [A2] and I again attempted to go to the pub. We went to the bar and it was then I heard [R2] say once again 'Where's my shotgun'.

97 A2 did not give any evidence about this incident. R2 denied the allegation.

98 Assessment of evidence and finding. Despite the fact that there was no evidence corroborating the alleged remark by R2, A1 made a verbatim note of it in his notebook. We are satisfied that R2 said 'where's my shotgun' to R1 and that other patrons including A1 were in the vicinity when that comment was made.

99 Public act? This was a public act given that it took place at the hotel - a venue where members of the public congregate. R2 made the comment at the bar in the vicinity of other patrons.

100 Incitement. While the words 'Where's my shogun?' would have intimidated A1, they would not have incited the ordinary, reasonable, member of the community to hatred, serious contempt or severe ridicule.

101 Causation. R2's comment did not refer to the applicants' HIV status or their sexuality and was not 'on the ground of' either of those characteristics.

102 Conclusion. This part of the complaint is not substantiated.

103 Introduction. The applicants allege that on 24 November, 25 November and 29 November 2007 and 23 December 2007 one or both of the respondents drove past their house making threatening gestures and/or yelling abusively. There was no allegation that anything was said or done which related to homosexuality or HIV/AIDS. Nevertheless, the applicants submitted that in a small country town, the sexuality and HIV status of the applicants, as well as the fact that they were in dispute with the respondents, would have been common knowledge. The first incident was said to have occurred on 24 November 2007, the evening of the federal election.

104 Evidence. A1's notebook records the words 'drive by slowly' for this date. The complaint to the ADB says '. . . once we were home, both [R2] and [R1] drove slowly past our home waving a fist and using his [R2's] hand to mimic shooting a gun.' A1's statement said: Later that day I noticed [R1]'s white 4WD ute coming up the street. As they drove past I saw that [R1] was driving, [R2] was in the passenger seat and he was leaning across in front of [R1] making a pistol motion with one hand, as if he was shooting at us.

105 When giving oral evidence A1clarified that R2's hand was inside the car, not outside the window. The car was on the side of the road closest to their house and could be seen from their front window.

106 A2's evidence was that: Later that afternoon [A1] and I were home…[R1] and [R2] drove past our house a couple of times…R2 was yelling out aggressively. I couldn't hear what [R2] was saying but he was pointing his fingers at A2 like a gun.

107 In oral evidence A2 conceded that he might not have seen a gun action, but that R2 was pointing with his hands.

108 R1 maintains that he was not with R2 that evening because his son drove him home. R1 originally said that his son picked him up from the hotel on 24 November and drove him home. His son gave evidence which R1 accepted in cross examination, that he was working at the hotel that day so rather than picking his father up, he gave his father a lift home after he finished work. The son's evidence was that he owned a white 4 wheel drive utility and he drove his father home on 24 November. R2 denies the allegations. R1 confirmed that he does not own a utility.

109 Assessment of evidence. We accept R1's son's evidence that he drove his father home on 24 November. It is unlikely that R1, who admitted being at the hotel for several hours, would have driven home in an intoxicated state when his son, who had been working at the hotel, was available to drive him home. R1's son does not say that he drove R2 home. The son gave evidence that he owns a white 4 wheel drive utility. If he was driving, then the incident did not occur as the applicants recorded it because their evidence was that R1 was driving.

110 Finding. We are not satisfied on the balance of probabilities that the incident, as recorded by the applicants, occurred on 24 November.

111 Causation. Even if the incident took place on another date, the conduct of the respondents was not 'on the ground of' HIV/AIDS and/or homosexuality. We do not accept the applicants' submission that if threatening gestures made at the hotel were unlawful, so are gestures made from inside a car driving past the applicants' house. In any case, we have not found that threatening gestures made by R2 at the hotel are unlawful. The basis for the applicants' submission was that the audience is the same (residents of the town who frequent the hotel) and that the respondents' actions constitute a pattern of conduct which would have the same impact on the audience when repeated. While we do not need to be satisfied that a person was actually incited to hatred, we do not accept that the potential audience on the street near the applicants' house was the same audience as patrons of the hotel. There is no basis on which an assumption can be made that people who may have been in the area, had also been at the hotel that day or the previous day. Consequently, there is no causal connection between the alleged conduct and the applicants' homosexuality or HIV status.

112 Conclusion. This part of the complaint is not substantiated.

113 Evidence. The second incident was said to have occurred on 25 November. There is no record of it in A1's notebook. In the complaint to the ADB the applicants said: Once home, [R1] and [R2] once again drove slowly past our home pretending to shoot a gun.

114 A1's written evidence in relation to this incident was that:

A short time later when we had returned home, I saw [R1] and [R2] again drive by our home. They were both waving their fists in our direction and [R2] again motioned as if he was pointing a gun and shooting it. I told [A2] this as he did not witness it.

115 A2 affirmed that he did not see the incident himself. He stated that:

Soon after we returned home, [A1] told me that [R2] and [R1] again drove past our house in [name of street deleted] waving their fists out of the windows of the car.

116 R1 stated that his wife drove him and R2 home on this day at approximately 3:30pm. His evidence was that:

We had to drive past the applicants' house, however at no time did I nor [R2] make any gestures towards the applicants, or at all.

117 R2 also admitted to driving past the applicants' home on 25 November. In his evidence he agreed that R1's wife had driven him home that day. R2 gave evidence that:

I did not make any hand gestures or say anything when we drove past their home.

118 R1's wife also denied that either respondent made gestures while she was driving past the applicants' home.

119 Assessment of evidence and factual finding. The respondents admit driving past the applicants' house on 25 November. We accept the applicants' evidence that the respondents drove past the house waving their fists and that R2 made a motion as if pointing a gun and shooting it.

120 Public act. The alleged conduct is a public act because it took place in a public street and would have been observable by any member of the public in the vicinity.

121 Causation. For the reasons given at [111] above, the conduct of the respondents was not 'on the ground of' HIV/AIDS and/or homosexuality.

122 Conclusion. This part of the complaint is not substantiated.

123 Evidence. A1 said that R2 drove past his home on a motorbike on 29 November 2007 and at various other times during the first 2 or 3 months of 2008. There is no mention of these incidents in A1's notebook. In the complaint to the ADB the applicants say that 'Between Nov 30 2007 and Dec 7 2007, both [R2] and [R1] continued to drive by our home slowly pretending to shoot a gun.'

R2 rode past our house on his motorbike…I saw him look in the front door, which was open and see [A1] and I sitting there. R2 yelled some kind of abuse in an aggressive manner, which I could not understand because of his helmet and the sound of the bike. R2 revved the bike very loudly before lifting the front wheel off the ground and riding away down the street at speed. 125 However, in his oral evidence A2 was less clear about the incident. He said he recalled R2:

. . rode quite slowly passed (sic) on motorbike and did a wheelie. I don't recall if he said anything when he was on the bike.

126 A1 made no reference to these alleged incidents.

127 R2 admitted owning a motorbike but said that the registration had expired in February 2007 and that he had not ridden it since then. R1 said that he left town for 6 months on 5 February 2008 so he could not have been driving past after that time. The respondents submitted that a photograph of the house presented to the applicants in cross-examination, demonstrates that it is not plausible that they could have gained sufficient view of a motorcyclist from their living room through their front door, much less have identified the rider as R2.

128 Assessment of evidence and findings. We are satisfied that R1 drove by the applicants' house on 29 November and at various times after that prior to 5 February 2008. We are also satisfied that he did a 'wheelie' and made some comments.

129 Conclusion. There is nothing about these incidents which has any connection with the applicants' homosexuality or HIV positive status. This part of the complaint is not substantiated.

130 Evidence. A2 said in his statement that: On the morning of 23 December 2007 [A1] and I were at home . . . [R1] and [R2] drove past our house several times in different directions. [R1] and [R2] both looked into our house, [R1] was driving and [R2] was the passenger.

131 R1 and his wife described their Sunday morning routine and said that on 23 December at about 9.30 am they went to the badminton club's Christmas party with the party food and equipment. As they only have one vehicle and R2 does not have a car, the respondents maintained that they were not together in a car that morning. While R1 conceded that he frequently has to pass the applicants' home as it is between his house and the town centre, he said he did not drive past on that morning.

132 Conclusion. Given R1's distinct recollection of the events of 23 December, we are not satisfied that he, or R2 drove past the applicants' house on that morning. Even if they did there is nothing about this incident which has any connection with the applicants' homosexuality or HIV positive status. This part of the complaint is not substantiated.

133 A1 says that he and A2 went to a shop to purchase ice and A1 remained in the car while A2 went into the shop where he then allegedly had an encounter with R2. A1 gave evidence that: As he walked to the counter, I saw [R2] walk up behind him and stand very close behind him. I became concerned that [R2] was going to do something, but I saw [A2] put his money on the counter and quickly walk out.

134 A2 confirmed this version of events. He stated that:

I was buying something at the [shop]. After I had been served I turned around and saw [R2]. Again [R2] was standing extremely close to me, inside my personal space which was intimidating. I cannot remember [R2] saying anything, but he was giggling and trying to make me feel uncomfortable. I was intimidated and felt uncomfortable so I left immediately after.

135 R2 denied the allegation and says there is no corroborating evidence.

136 Finding of fact. We are satisfied that the incident occurred as alleged. Despite R2's denial, both A1 and A2 give the same general version of the incident.

137 Public act. The conduct constitutes a public act since it took place in a public place and was capable of being observed by members of the public.

138 Incitement. While R2 may have intended to make A2 feel uncomfortable, nothing about R2's conduct incited hatred against A2.

139 Causation. There was nothing about R2's conduct that related to A2's HIVstatus or his homosexuality. This part of the complaint is not substantiated.

Disclosure of the applicants' HIV status to various individuals

140 Evidence. In A2's statement he says: On 9 December 2007 [A1] and I had friends, a married couple [names deleted] come to visit. [The couple] said they had just come from the pub, spoke to [R1]. [R1] said to them, 'Why the hell are you hanging around with [A1] and [A2], visiting them, seeing them. Don't you know they are AIDS carrying faggots?' [The male friend] said to me, 'I don't believe that's true, is it true, do you have AIDS?' I said, 'No we don't we are HIV positive, but we do not have AIDS, there is a distinction' [The male friend] said 'something has to be done, because [R1] is down the pub telling everyone you are AIDS carrying faggots.'

141 A1 said in his statement that on 9 December 2007 they had a visit from a married couple who asked why they had not told them that they had AIDS. A1 said 'They informed us that R1 told them we had AIDS and that it was no different to HIV.'

142 The female friend's written statement said: I was told by R2 to be careful as A1 and A2 were 'positive' (HIV).

143 The female friend repeated in her oral evidence that R2 had told her that the applicants were HIV positive. She said that the conversation took place about 3 weeks after the election in the second or third week of December. In cross-examination she was not sure about the dates. R2 gave evidence that the friend visited him at his home prior to the election day on 24 November 2007 but denied having a conversation about the HIV status of the applicants. The female friend also gave evidence that her husband had told her that R1 had warned him away saying words to the effect of, 'Watch out for the boys, they're positive.' The husband did not give evidence and we have not taken the wife's evidence of the conversation into account because it is second hand evidence which is less reliable than first hand evidence.

144 The respondents submitted that both the applicants said that the female friend told them that R1 had been the source of the information about the applicants' HIV status. However, in her statement and in oral evidence, the female friend said that R2 had been the source of that information.

145 Assessment of evidence and findings. Given the fundamental inconsistency between the applicants' evidence and the female friends' evidence as to the source of the alleged comments, we are not satisfied that they were made.

Public act. Even if the comments as alleged, were made, the evidence was that the comments were made in a conversation with the married couple. While a public act includes making a statement which is capable of being overheard, there was no evidence to suggest that possibility in this case apart from the fact that the conversation occurred at the hotel. We are not satisfied on the balance of probabilities that any conversation with R1 or R2 and the married couple at the hotel was capable of being overheard by other patrons.

146 Conclusion. This part of the complaint is not substantiated.

Dissemination or distribution of the contents of A1's novel to the public

147 A 'public act' is defined in s 49ZS(c) as including '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.'

148 Evidence. In his statement, A1 said that on 25 November 2007: . . . a mutual friend of all parties [name deleted] came to our home to arrange collection of the Bay 13 gear. This included a lap top computer which [R1] had leant (sic) me on which I was attempting to write a novel aimed at the gay market. When he asked for the return of the computer, the novel was incomplete. I had saved it on a flash drive, however the content which was left on the computer, I deleted. Not being computer literate I thought that meant it was gone. [The mutual friend] collected the lap top personally and the rest of the equipment was left on the front lawn of the house next door to [the shop] as we were still in the process of moving.

149 At the hotel on the same day A1 said in his statement that R1 said:

. . people need to learn better computer skills, just because it's in the trashcan doesn't mean it's gone. . . I should print it out and plaster it around town and everyone will know what they are like.

150 After they got home A1 says that A2 received a phone call from R2. A2 told him that R2 said he was reading something very interesting that the town needs to know about. A1 then said that A2 phoned R1's wife to ask if she could get the computer from R1 and 'clear it.' A1 said in evidence that the respondents threatened him saying the applicants would not 'last long' in the town because of their behaviour in private.

151 A female friend of the applicants gave evidence that she had a conversation with R2 in which he told her that R1 had lent A1 a computer and that A1 had returned the computer to him. She said that R2 had 'bragged how even though A1 thought he had deleted his personal communications from R1's computer, R1 had been clever enough to access the document.' She said, "[R2] told me that [R1] had printed a copy of [A1's] computer entry and that a local resident had it and I could have a look when he had finished. I declined the offer. He claimed that it contained deviate (sic) sexual practices' and 'sick poofter stuff'". R1 denies that he ever lent A1 a laptop computer or that it was part of the 'Bay 13' material.

152 Assessment of the evidence. The first element of the test in s 49ZS(c) is that the material has been distributed or disseminated. If R1 printed a copy of the material and gave it to people in the town that would constitute dissemination. However, there is insufficient evidence to find that that is what happened. The only evidence that the novel was disseminated or distributed to anyone is the female friend's evidence that R2 had told her that R1 had told him that he had printed out a copy and given it to a local resident. This evidence is unreliable because it is hearsay. Furthermore, R2 denies that he did so and there was no evidence from the local resident. In those circumstances we are not satisfied that the novel was distributed or disseminated to anyone.

153 Knowledge of content. The second element of the test in s 49ZS(c) is that any distribution must have been done 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 their homosexuality or HIV status. The applicants' submission is that the intention of R1 was to disseminate this material to incite hatred against the applicants on the ground of homosexuality and HIV/AIDS. That submission was based on the assertion that the material was of a graphic sexual nature directed to the 'adult gay market' and the likelihood that the material would cause discomfort, fear and/or hatred of the applicants due to its depiction of the 'gay lifestyle'. Any dissemination of the novel is not unlawful because it was not asserted that the material itself promoted hatred, serious contempt or severe ridicule of a person on the ground of their homosexuality.

154 This part of the complaint is not substantiated and is dismissed.

155 R2 said words to the following effect on 25 November 2007: 'All I need now is a gun, real soon. I'll rid this town of these filthy faggots. It's a small town and no one will want to know them when they find they have got AIDS. I'll fucking king hit them from behind, they won't know when or where.'

'Who would want to eat hamburgers or get ice from [the place where the applicants worked] with those pair of poofters working there, you'd never know what you were going to get'

156 That conduct, in context, constitutes homosexual and HIV/AIDS vilification.

157 R2 made the following comments on 8 December 2007:

'Shoot the fucking faggots'. 158 That conduct, in context, constitutes homosexual vilification.

159 R1 made the following comment on 8 December 2007: 'they (referring to the applicants) have AIDS. Don't sit with them, they belong in the gutter.'

160 That conduct, in context, constitutes HIV/AIDS vilification.

161 The remainder of the complaint is not substantiated.

162 Introduction. The Tribunal has power to order the respondents to pay the applicants damages 'by way of compensation for any loss or damage suffered by reason of the respondent's conduct': AD Act, s 108(2)(b). However because the proceedings were commenced prior to the enactment of the amendments to s 108(2)(a) of the AD Act, the Tribunal may order a maximum amount of $40,000. The applicants sought damages in the following amounts: Economic loss Loss of salary for six months $14,400 Rent increase for six months $12,000

163 Causation. There must be a causal connection between the unlawful conduct and the loss or damage.

Loss of wages. The applicants said that they had to resign from their part time jobs cooking burgers and bagging ice due to the public perception that they had AIDS. In relation to their 'employment', the evidence was that the applicants were receiving a disability pension and were only paid 'in kind' by the proprietor of the shop. Even if they were being paid, there was no evidence as to how often they worked, how much they were paid each week or how the amount of $14,400 was calculated. In those circumstances we are not satisfied that they have suffered that loss.

Relocation and rent increase. The applicants also allege that on 15 May 2008, when the lease on their house ran out, they decided to move away from the town. They claim that they are paying $40 a week more in rent in the new location. That increase amounts to $1040 over six months. The applicants also claimed removal expenses of $1,000. A letter filed by the respondents from the applicants' previous landlord states that the applicants were evicted from the house in the town as a result of continuing late payment of rent and non-payment of a water usage account. If they were evicted, the applicants would have had to relocate regardless of the respondents' unlawful conduct. Even if we accept that it was the unlawful conduct that led them to relocate, there was no evidence that rents were generally higher in the new location. There was no documentary evidence supporting the applicants' claim for relocation expenses. In those circumstances, we are not satisfied that they have suffered a loss or that any loss they have suffered was 'by reason of' the respondents' unlawful conduct.

164 Non-economic loss. A1 said that the 'harassment and misconceptions spread by R1 and R2 have had a significant effect on his mental health and wellbeing. He said that conduct has 'taken away my lifestyle and enjoyment of participating in the community' and he now has no confidence in his ability to find employment. He also said he no longer feels able to visit the main street of the town or the local shops without wondering what people are thinking. A2 said that the events have totally 'screwed' the applicants' lives. He is now afraid to walk down the street. A2's mother gave evidence that the applicants are now nervous and don't go into the town where they used to live except to visit them.

165 We are satisfied on the basis of this evidence that the entire course of conduct engaged in by the respondents has had a considerable detrimental effect on both the applicants. If we were awarding damages for the totality of the respondents' conduct that we have found occurred, a reasonable amount of damages for non-economic loss would be in the vicinity of $20,000 each. However, the unlawful conduct is limited to the conduct of R2 on 25 November 2007 and 8 December 2007 and the conduct of R1 on 8 December 2007. While this conduct was some of the most extreme that the applicants endured, it was only a small proportion of the conduct that we have found took place. We must determine the damages suffered by the applicants by reason of that conduct alone. We estimate that the unlawful acts were responsible for about a quarter of the applicants' hurt and distress. Based on that estimate, each applicant is entitled to $5,000 in damages. The conduct of R1 was not as serious as that of R2 and occurred on only one occasion. In those circumstances R1 is liable for 30% of the damages awarded ($1500 for each applicant) and R2 is liable for 70% ($3,500 for each applicant). We appreciate that R2 has an anxiety/depressive disorder and is in receipt of a disability pension. However, that is not a factor which we are able to take into account in determining the damages to which the applicants are entitled.

R1 is to pay A1 damages of $1500 within 28 days of the date of these reasons.

R1 is to pay A2 damages of $1500 within 28 days of the date of these reasons

R2 is to pay A1 damages of $3,500 within 28 days of the date of these reasons.

R2 is to pay A2 damages of $3,500 within 28 days of the date of these reasons.

01/07/2010 - Typographical error, on coversheet, QM to be QL and QL to be QM - Paragraph(s) Coversheet and paragraph 2

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Judgment (201 paragraphs)

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Cases Cited (6)