Malenha v Sullivan

Procedural Background

1. On 14 March 2017, Mrs Malenha lodged a complaint of alleged racial vilification with the Board against the respondent. The complaint was accepted for investigation on 15 May 2017, following receipt of additional information from the complainant on 3 May 2017.
2. On 23 May 2017, the Board notified the respondent of the complaint and sought a written response to the allegations. The respondent did not acknowledge the Board's correspondence or provide any response to the complaint.
3. The Board again wrote to the respondent on 3 July 2017, and again requested her response to the complaint. That letter was sent to the respondent by Express Post and confirmed as having been delivered on 5 July 2017. Again, the respondent did not acknowledge the Board's correspondence or provide any response to the complaint.
4. On 20 July 2017 the Board received correspondence from Mrs Malenha confirming that she wished to proceed with her complaint.
5. On 14 August 2017 the Board received further correspondence from Mrs Malenha in which she repeated her allegations and provided some additional detail confirming the nature of the public comments made by the respondent.
6. On 30 August 2017, the complaint was referred to the Tribunal pursuant to s 93 of the Act. The President of the Board was of the view that the nature of Mrs Malenha's complaint was such that it should be referred.
7. The period of the complaint is specified as between 14 March 2016 and 14 March 2017.

Findings

1. It is against that background we now make the following relevant findings, which are based on the uncontradicted evidence of Mrs Malenha. We note that from time to time Mrs Malenha had difficulties recalling precise events, but we find that her willingness to acknowledge this adds to our positive impression of her credit. Our findings are based on a combination of Mrs Malenha's oral evidence to us, the oral evidence of her fiancée Mr Paul Lynch, and corroborated by the more contemporaneous accounts of events she provided to her landlord, NSW Housing, and later to the Anti-Discrimination Board (the Board). We find as follows.
2. Mrs Malenha was born in Portugal. She grew up in South America. She speaks Portuguese.
3. Mrs Malenha moved into the subject premises in Daisyville towards the end of October 2013. There were two apartments in the block. The respondent moved in approximately one year later, that is in about October 2014.
4. The two apartments share a common balcony, which was partially divided until Mrs Malenha had her portion of the balcony enclosed in March 2017. The position of the balcony was such that the respondent could readily be heard in the grounds of the apartment complex, including by passersby and tradespersons.
5. During the early period of the respondent's occupancy, Mrs Malenha had a cordial relationship with the respondent. She would invite her in for meals, and allowed the respondent to use her washing machine and to borrow an air mattress. The relationship changed when Mrs Malenha had to have some works undertaken in her apartment. She thinks that the respondent got upset because Mrs Malenha asked if she would look after a key to her apartment and let in tradespersons as necessary.
6. In January 2016, when Mrs Malenha was talking on her telephone in Portuguese, the respondent started "beating" on the wall dividing the two apartments and shouted "Shut up, only speak English".
7. On or about 3 February 2016, the respondent called Mrs Malenha a "Portuguese pig".
8. On or about 18 February 2016, Mrs Malenha was watching the Portuguese language television channel. The respondent again started beating the common wall and shouted "the sooner we get rid of this Portuguese pig the better".
9. On or about 28 February 2016, Mrs Malenha's ex-husband came to visit her. They were listening to South American music in her apartment. The respondent yelled through the wall "Turn that shit off you Portuguese prostitute".
10. On or about 10 March 2016, the applicant was talking on the telephone in Portuguese to a friend. On this occasion, the respondent shouted to her through the common wall "Shut up, speak in English" and "get out, you don't belong here".
11. On or about 18 March 2016, the applicant was talking on the telephone in Portuguese to her sister. On this occasion, the respondent shouted to her through the common wall "You are a stranger here" and "You should all go home".
12. On or about 3 May 2016, Mrs Malenha made a lengthy complaint to Housing NSW. This complaint states, amongst many other matters, that the respondent employed the constant use of hurtful verbal racial remarks to Mrs Malenha, that the respondent regularly made abusive or aggressive "verbal discrimination remarks" on the basis of Mrs Malenha's cultural background and religion; that the respondent constantly yelled at her "You are a stranger in this country"; told Mrs Malenha that her English was "not good enough"; told Mrs Malenha that she was a "Bitch", or a "Bloody Christian"; took photographs of tradesmen and other people visiting Mrs Malenha in her apartment; yelling out "Blah Blah Blah" whenever Mrs Malenha spoke in Portuguese;
13. On 6 April 2016, Mrs Malenha and the respondent agreed to attend a mediation held at Waverley Court. While Mrs Malenha was talking at the mediation, the respondent left suddenly, shouting on the way out "your English is not good enough to listen to".
14. On or about 23 April 2016, while Mrs Malenha was having dinner with a friend, the respondent shouted at Mrs Malenha from her balcony "None of your neighbours like you".
15. In about mid-May 2016, the respondent started banging or beating on the common wall, and repeatedly asked Mrs Malenha "Why haven't you gone yet?", and stating "I can't stand your voice, why are you still here".
16. Between this time and 1 March 2017, Mrs Malenha says that there were repeated instances of the respondent making similar remarks. We note that Mrs Malenha claims that her motor vehicle was scratched on three occasions, namely 7 February, 10 March and 19 March 2016. Mrs Malenha claims that this damage was caused by the respondent. However, she agreed during the hearing that this was simply her supposition, and that she had no evidence to support this allegation, save for an inference that the damage occurred following interactions with the respondent. We find on the balance of probabilities that the damage to the motor vehicles was caused by the respondent. However, as we explain below, we are not persuaded that these acts of damage are acts of vilification for the purposes of the Act.
17. On or about 1 March 2017, there was a significant incident involving the two parties. Contractors attended Mrs Malenha's unit to undertake work. Mrs Malenha's fiancé Mr Lynch was also present. The respondent at the contractors and Mr Lynch saying "These foreigners are all the same, I should have run that Portuguese pig out of town months ago".
18. Mrs Malenha was not present at the time. Mr Lynch rang her to warn her that the respondent was in an aggressive mood. When Mrs Malenha returned to her apartment, on approach the respondent came out of her apartment to confront Mrs Malenha. Mrs Malenha quickly went into her own apartment, whereupon the respondent started "banging" on Mrs Malenha's screen door.
19. As a consequence of those matters, Mrs Malenha asked the police to attend the property. After the police had left, the respondent came to Mrs Malenha's door and shouted "This unit is for Australians only not Portuguese pigs". Other disturbing and abusive and aggressive behaviour of the respondent, included threatening Mr Lynch with a broom, and banging on Mrs Malenha's screen door, continued long into the night.
20. Shortly afterwards, Mrs Malenha lodged a hand-written six page complaint with Housing NSW, attesting to the events of 1 March 2017.
21. By 9 June 2017, Mrs Malenha had had enough of the respondent's conduct, and she vacated her premises.
22. As noted above, on 14 March 2017, Mrs Malenha filed her application with the President of the Board. The complaint alleged racial vilification of her by the respondent and refers to many of the many incidents set out above.

Relevant legislation

1. The relevant provisions of the Anti-Discrimination Act 1977 (the Act) are ss 20B, 20C and 108. These sections relevantly provide as follows: 20B Definition of "public act" In this Division, public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. 20C Racial vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 108 Order or other decision of Tribunal (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, . . . (g) decline to take any further action in the matter. (7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

Principles to be applied

1. There are four elements to the civil wrong created by s 20C(1) of the Act, namely: 1. A public act; 2. By a person; 3. Which incites hatred towards, or serious contempt for, or severe ridicule of another person or group of persons; 4. On the ground of their race.
2. A discussion of these matters appears in Rees, Rice and Allen, Australian Anti-Discrimination Law, Second Edition, (Federation Press, 2014). We shall consider each matter in turn. We think it useful to first set out some commentary about the third and fourth elements.
3. The third element was discussed in the decision of the NSW Court of Appeal of Sunol v Collier (No 2) [2012] NSWCA 44 where Bathurst CJ stated at [41]: In these circumstances, s 49ZT should be construed as follows: (a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement. (b) It is not necessary for a contravention that a person actually be incited. (c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. (d) It is not necessary to establish an intention to incite. (e) For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out. (f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose.
4. We note that the Chief Justice was there considering s 49ZT of the Act, which concerns vilification on the grounds of homosexuality. However, as s 49ZT uses the same legislative template as s 20C, we consider that his Honour's comments are relevant when considering vilification on the grounds of race: see Rees, Rice and Allen at [10.4.13].
5. We note the two other members of the Court of Appeal agreed with the Chief Justice, Allsop P adding the following comments: 61 Subject to the following comments, I agree with the Chief Justice as to the construction of subsection (1). The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with [Brown v Classification Review Board (1998) 82 FCR 225 and Coco v The Queen [1994] HCA 15; 179 CLR 427], the ordinary and reasonable members of the public may be appropriate to consider. 62 Further, satisfaction of s 49ZT(1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience.
6. The fourth element involves the issue of causation. A convenient summary of the principles involved appears in the following passages in Rees, Rice and Allen, (footnotes omitted) [10.4.17] . . . it has been held in numerous cases that the ordinary member of the target audience must be incited to have the requisite impact in response to the respondent's conduct. That impact includes not only the strength of the ill-feeling towards others, but also the ground or reason for that ill-feeling. There must be a causal link between the impact of the conduct and the race of the target person or group: as a result of the respondent's act, the ordinary member of the community must be incited to feel hatred towards, serious contempt for, or severe ridicule of a person or a group of people because of their race. [l0.4.18] It is unnecessary to prove any causal link between the respondent's reasons for doing the act in question and the race of the target person or group. The respondent's intention is not decisive when determining either the degree of ill-feeling generated by the respondent's conduct or the causal connection between that impact and the race of the target person or group because both the impact and the causal connection are measured from the perspective of the ordinary member of the target audience. . . .

Consideration

1. We turn now to the application of these principles. We observe that the period of the complaint referred to the Tribunal is the period of 14 March 2016 and 14 March 2017. The Tribunal's power to decide whether conduct is in breach of the Act is part of its general jurisdiction: see s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Section 29 relevantly provides that the has "general jurisdiction" over a matter (a) legislation (other than the NCAT Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter. Section 39 of the NCAT Act provides that an application to the Tribunal "includes a complaint, referral or other mechanism … by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision. In this case, the application comprises the complaint as referred by the President of the Board. The Acting President referred Mr Chen's complaint to the Tribunal "because she was of the opinion that it could not be resolved by conciliation": see s 93C(a) of the Act. The complaint, as investigated and referred by the President the 12 month period of 14 March 2016 to 14 March 2017. Mrs Malenha did not apply for her complaint to be amended to include a longer period.
2. In our view, it is the following acts which we should consider: 1. The respondent shouting to Mrs Malenha through the common wall "You are a stranger here" and "You should all go home" on or about 18 March 2016; 2. The respondent shouting on the way out of the mediation "your English is not good enough to listen to" on 6 April 2016; 3. The respondent shouting at Mrs Malenha from her balcony "None of your neighbours like you" on or about 23 April 2016; 4. The respondent repeatedly asking Mrs Malenha "Why haven't you gone yet?", and stating "I can't stand your voice, why are you still here" in about mid-May 2016; 5. The respondent, on 1 March 2017: 1. shouting "These foreigners are all the same, I should have run that Portuguese pig out of town months ago". 2. shouting "This unit is for Australians only not Portuguese pigs."
3. We have not included the acts of vandalism to Mrs Malenha's motor vehicle on this list. We found that the damage to the motor vehicle was caused by the respondent. However, as we explain below, we are not persuaded that these acts of damage are acts of vilification for the purposes of the Act. Nor have we included the claims of repeated abuse in the period mid-May 2016 to March 2017. Those claims are so generalised that we are unable to make findings of any particular act to the requisite standard.
4. We are satisfied that each of the acts described in par 44 to (5) are public acts by a person. The issue is whether any of those acts could incite hatred towards, or serious contempt for, or severe ridicule of Mrs Malenha on the grounds of her race. The words "hatred", "contempt" "and ridicule" are to be given their ordinary English meaning. In the context of s 20C the public act must be capable of inciting intense dislike or hostility toward a person or group of persons, grave scorn or extreme derision: see Veloskey v Karagiannakis [2002] NSWADATAP 18 at [29] and the cases there cited. Moreover, these reactions must be aroused because of the race of the person said to be vilified by the public act, race being a substantially contributing factor.
5. In our view, the only statements which in any way relate to the race of Mrs Malenha are the statements in par 44. The other statements, while hurtful, and potentially liable to incite hatred, or serious contempt for, or severe ridicule of Mrs Malenha, do not in our view do so because of Mrs Malenha's race. However, the statements in par 44 stand apart. In our view, the ordinary member of the community would be incited to feel hatred toward, serious contempt for, or severe ridicule of Mrs Malenha on the ground of her race, by referring to her as a "Portuguese pig" on two occasions.
6. Accordingly, we find the complaint established, albeit to a limited extent. We now consider the appropriate relief.

Relief

1. As noted, Mrs Malenha asks that we order Ms Sullivan to apologise to her, order her to cease her behaviour, and that compensation be ordered.

Apology

1. It was suggested at the hearing that an apology would be of no utility as the respondent was unlikely to co-operate. We disagree. We do not know whether this is the case at all, and we note that the respondent did attend a mediation in 2016. We consider that the respondent should apologise to Mrs Malenha for her conduct on 1 March 2017, and we so order. The respondent is to apologise to Mrs Malenha on or before by sending her the following statement signed by her on or before 08 January 2018: This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT) made on 11 December 2017. On 1 March 2017, I made statements concerning Mrs Clotilde Judite Ferreira Rodrigues Malenha. On 11 December 2017, NCAT held that my statements amounted to unlawful racial vilification. NCAT found my statements had the effect, of inciting hatred or serious contempt or severe ridicule of Mrs Malenha on the grounds of her race. I apologise for making these statements. I acknowledge that, although I have no issue with Portuguese people, the words that I used vilified Portuguese people in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.
2. We also order the respondent to provide a copy of her signed apology to NSW Housing, and ask it to cause the apology to be placed in the community hall on the ground floor of the building where Mrs Malenha used to live.
3. We further order that, pursuant to s 108(7) of the Act, that if the respondent does not apologise, the respondent is to pay the complainant damages of $2,500 by way of compensation for failure to comply with the order.

Cease behaviour

1. However, we do not consider that we should order Mrs Malenha to cease her conduct. The two parties no longer live next door to each other, and it appears unlikely therefore that the conduct will reoccur.

Compensation

1. As for compensation, two types were sought, compensation for economic loss, and compensation for non-economic loss. The first aspect can be deal with shortly. The only claim for economic loss was for the installation of an alarm in respect of the damage to Mrs Malenha's motor vehicle. As indicated above, while we think on the balance of probabilities that these acts were perpetrated by the respondent, we are not persuaded that they are acts of racial vilification. The position may have been different had the respondent etched into the motor vehicle duco comments such as "Portuguese pig" or "Portuguese prostitute". In any event, Mrs Malenha had no receipt to prove the cost of the installation of the alarm. For both these reasons, we decline to award any compensation for economic loss.
2. As to non-economic loss, The Tribunal has power to award damages "by way of compensation for any loss or damage suffered by reason of the respondent's conduct": see s 108(2)(a) of the Act. The maximum amount of damages that can be awarded under this provision is $100,000.
3. In her various statements Mrs Malenha has stated that I just want peace in my life, not living next door to a "time bomb" or "volcano" that unfortunately is my neighbor. I won't get too melodramatic but does anyone reading this know what it's like to come home and cringe in fear. I sincerely hope that no-one has to go through my experience. Is it alright that it's allowed to continue to happen to me? This report is just less than 24 hours of a day in my life. Just a piece in a puzzle of countless occasions of intimidation, bullying at any time I speak, listen to or watch anything in my native tongue (Portuguese). The situation is affecting me emotionally, physically and psychologically causing my blood pressure to rise dramatically. I am now afraid to leave my unit when she has these fits of rage. I will be haunted for the rest of my life by this experience.
4. As the Tribunal noted in Margan v Taufaao [2017] NSWCATAD 216, in Burns v Sunol [2012] NSWADT 246 the Tribunal at [112] - [118] the Tribunal analysed the principles and case law around awarding damages in vilification matters. The Tribunal summarised those principles at [91] as follows: Damages under section 108(2)(a) must be assessed according to compensatory principles. The equivalent principles in tort and contract law are a guide, but they are not controlling. There is little guidance to non-pecuniary harm within the realm of injury to feelings. There have been cases decided under section 49ZT and the similar provisions dealing with racial vilification section 20C of the ADA. The awards across the jurisdictions for nonpecuniary harm caused by vilification have varied between $1,500 - $20,000.
5. The verbal conduct of the respondent was clearly directed at the respondent, and made in a public place, in the hearing of and in view of others present including Mr Lynch and some trade persons Because Mrs Malenha was the target of the vilification, it is appropriate that she receive damages for both the hurt to her feelings and the apprehension that she suffered. However, for the reasons given above, we find only the acts of 1 March 2017 as constituting acts of racial vilification.
6. We award the sum of $2,500 under s 108(2)(b) of the Act as compensation to Mrs Malenha in consequence of the respondent's verbal conduct on 1 March 2017.

Orders

1. The Tribunal orders that on or before 8 January 2018 the respondent is to: 1. Apologise to the applicant by sending her the statement set out in par [50] of these reasons and signed by her. 2. Provide a copy of her signed apology to NSW Housing, and ask it to cause the apology to be placed in the community hall on the ground floor of the building where the applicant used to live. 3. Pay the applicant $2,500 compensation. 4. If the respondent does not comply with order (1) the respondent is to pay the applicant $2,500 by way of damages for non-compliance.

---

    ​

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2017