Passas v Comensoli

Passas v Comensoli - [2019] NSWCATAP 298 - NSWCATAP 2019 case summary — Zoe

[4]

Summary of the Decision

The Appellant did not dispute the Tribunal's statement of legal principles at [9]-[13] which was as follows: "9 The provisions of the AD Act making homosexual vilification unlawful in certain circumstances are ss 49ZS and 49ZT. These state: 49ZS Definition In this Division: public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. 49ZT Homosexual vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 10. The orders that the Tribunal may make following a hearing of a complaint are set out in s 108 of the AD Act. Relevantly, these state: 108 ORDER OR OTHER DECISION OF TRIBUNAL (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), … (g) decline to take any further action in the matter. (5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons. 11. In Margan v Manias [2015] NSWCA 388 at [11] to [15] the following principles regarding s 49ZT expressed in Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 (Sunol) by the Chief Justice were reiterated: 11. In Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 (Sunol) this Court considered that the word "incite" when used in s 49ZT means "to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement" (Bathurst CJ at [41(a)]; Allsop P and Basten JA agreeing). Bathurst CJ accepted (at [28]) that this could cover a wide variety of conduct, but emphasised that it is not sufficient that the words simply express hatred, serious contempt for, or severe ridicule of, a person on the relevant ground; the relevant public act must be one which could encourage or spur others to harbour such emotions. That is, it must be capable of inciting such emotions. 12. The Chief Justice noted that it is well established that it is not necessary for a person in fact to be incited by the words or publication: at [29]. His Honour accepted, without finally deciding, that it is not necessary to establish an intention to incite: at [31]. 13. The Chief Justice referred to a divergence of views as to whether the public act required for a contravention of vilification provisions such as s 49ZT, is one which would incite the requisite emotion in an "ordinary reasonable" member as opposed to simply a "reasonable" member or an "ordinary" member of the class to which the public act was directed: at [32]. His Honour noted the different approaches to that question taken by the Court of Appeal of Victoria in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207 (Catch the Fire). 14. Bathurst CJ preferred the views of Ashley and Neave JJA in Catch the Fire (at [132], [157]-[158]) namely, that the question was to be answered by reference to an "ordinary" member. His Honour reasoned (at [34]) that this is because the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals and this could be measured "only by reference to an ordinary member of the class to whom the public act is directed". 15. In summarising his conclusions, the Chief Justice stated at [41(c)]: It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. 12. The particular class to whom the act is directed, the audience or likely audience must be identified and considered: Sunol v Collier and Anor (No 2) [2012] NSWCA 44 at [34]; [61]; Jones v Trad [2013] NSWCA 389 at [62], [63]. In Jones v Trad [2013] NSWCA 389 at [56], Ward JA (as she then was) stated, citing Burns v Laws (No 2) [2007] NSWADT 47 at [111] that an objective test must be used to determine whether a public act had the capacity to incite the requisite emotion in an ordinary person in the class of persons in the audience or likely audience. 13. As stated in Burns v Sunol [2018] NSWCATAD 10 at [39]-[40]: "NCAT and the ADT have consistently held that the words "hatred" and "serious contempt" in the vilification provisions of the Act are to be given their ordinary meaning and have applied the following definitions: 'hatred' means 'intense dislike; detestation' (Macquarie), 'a feeling of hostility or strong aversion towards a person or thing; active and violent dislike' (Oxford). 'serious' means 'important, grave' (Oxford); 'weighty, important' (Macquarie). 'contempt' means 'the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account'(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie). See also Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17].""
Concentrating on the relevant findings of the incident of 15 November 2017, which ultimately founded the orders of the Tribunal, the Tribunal summarised the evidence received by the Respondent and his housemate, Ms Di Natale. The Tribunal stated as follows at [15] and [16]: "15 The Applicant lives in an apartment complex in Ashfield, and the Respondent lives in a neighbouring apartment in the same complex. On 15 November 2017, in celebration of the Yes vote, the Applicant draped a rainbow flag from his apartment balcony. Later that evening, he was in the driveway of the apartment complex when he heard the Respondent yelling at him from her apartment balcony, which faces the front of his apartment. The Respondent loudly demanded from the Applicant that he remove the flag because it was "offensive to my culture and religion". The Applicant refused, to which the Respondent loudly stated words to the effect that the Applicant should not be afforded the right to marry "until you could breastfeed and have children". 16 The exchange was loud enough that it could be heard by other residents in the complex and surrounding areas. The Applicant's housemate, Ashleigh DiNatale, heard the exchange from inside their apartment and corroborated the Applicant's evidence."
The Tribunal heard evidence from the Appellant. At the time of the incident in November 2017, the Appellant had been a Councillor in Ashfield for approximately 11 years and in September 2017 held the position of Deputy Mayor of the Inner West Council. She held that position until approximately 9 September 2018.
She admitted that she had asked the Respondent to remove the flag from his balcony, but denied that she had done so in an aggressive, loud or offensive manner, or that her conduct could constitute homosexual vilification. She admitted that the conduct had taken place in public and constituted a "public act": see [22]-[23] of the Decision.
She characterised her conduct as appropriate in the context of her position on the Executive Committee of the apartment complex's strata, relying on the fact that the strata by-laws prohibited the hanging of towels or other items off apartment balconies.
On the basis of the witness's oral evidence at hearing, the Tribunal below preferred the Respondent's evidence to the Appellant's and found, on the balance of probabilities, the Appellant did make the statement attributed to her by the Respondent: see [36] of the Decision. The Tribunal therefore accepted the Respondent's evidence of the statements made by the Appellant to him and heard by him, the Appellant's conduct towards him and his flatmate Ms Di Natale, and that the Appellant's statements and conduct were made in the manner expressed by the Respondent and Ms Di Natale: see [36] of the Decision.
The Tribunal then examined the use of the words used by the Appellant and concluded that the conduct "incite[d] hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on grounds of their homosexuality of a person or member of the group" within the meaning of s.49ZT of the AD Act.

[8]

Consideration

There are two statutory provisions of relevance: s.49ZT of the AD Act and s.88 of the AD Act. The first, s.49ZT, deals with homosexual vilification and the Tribunal found there was conduct of the Appellant on 15 November 2017 which amounted to homosexual vilification within the meaning of that section. Relevantly, at [45] the Tribunal dealt with the allegation of homosexual vilification on the basis that the Appellant made her statements on the ground of the homosexuality of the Respondent.
Regard must be had to s.49ZF of the AD Act, which states: "A reference in this Part to a person's homosexuality includes a reference to the person's being thought to be a homosexual person, whether he or she is in fact a homosexual person or not."
Having heard all of the evidence, the Tribunal concluded that the statements made by the Appellant were directed to the Respondent because the Appellant thought the Respondent to be a homosexual person - whether or not that was something she knew for sure or not. This finding of fact was open on the evidence in the sense that no error of law has been put forward justifying overturning this finding. Accordingly, pursuant to s.49ZF, it is irrelevant whether the Respondent is in fact a homosexual person or not. Therefore, there is no basis for overturning the finding of homosexual vilification within the meaning of s.49ZT of the AD Act on this ground of appeal.
Secondly, regard can be had to s.88 of the AD Act, which is in the following terms: "A vilification complaint cannot be made unless each person on whose behalf the complaint is made: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim."
There is no doubt that the Respondent during the Tribunal hearing claimed to have the characteristic of homosexual orientation. For example, during the hearing the Respondent stated: "I believe I was vilified on the basis of my homosexual orientation. It was humiliating. It was distressing and that's the reason why I've lodged the proceedings today." (Transcript page 114.10-.13)
Next, it is clear that the Tribunal found there was no sufficient reason to doubt that claim. Before the Tribunal, by the terms of s.88 of the AD Act, it is for the Appellant to demonstrate that there was sufficient reason to doubt the claim. The Appellant has not put forward any reason for doubting the claim, so the hurdle to making a vilification complaint provided for by s.88 of the AD Act is not engaged.
Accordingly, we dismiss this ground of appeal.

[10]

Appellant's Submissions

The Appellant submitted that the Tribunal erred in finding that the statements had the capacity to incite hatred towards, serious contempt for, or serious ridicule of, homosexuals, in an ordinary member of the class to whom it is alleged same were directed, contrary to s.49ZS of the AD Act. The statements made by the Appellant which were relied upon by the Tribunal: 1. were made in the area of the courtyard and balconies of the residential units where the Appellant and the Respondent resided; 2. were made with no one in attendance beyond Ms Di Natale, who apparently overheard a part of the conversation and a later conversation between the Appellant and the Respondent.
As the Appellant put it: "At the highest, the statements complained of by the Respondent giving rise to the complaint by him were to the effect that: (a) the Appellant believed that men should not be allowed to marry until they could breastfeed and have babies; (b) gay marriage offended her culture and religion."
The Appellant contended that if any person or persons of the strata residential complex were nearby and heard the Appellant speak the words alleged by the Respondent to have been spoken by her, to wit: 1. that the rainbow flag displayed by the Respondent should be removed because it is "offensive to my culture and religion"; 2. that the Respondent should not be afforded the right to marry "until you can breastfeed and have children"; 3. that the Appellant told her neighbour "my culture, my religion and my upbringing, I don't believe in this"; 4. that the Appellant told a police officer that "the rainbow flag was as offensive as the flag of ISIS", then the Appellant submitted that such words would not and could not incite, in an ordinary, reasonable person, anger towards, serious contempt for, or severe ridicule of, a homosexual person or group of homosexual persons on the ground of the homosexuality of the person or members of the group. This is all the more so, the Appellant contended, when one applies the definition and meanings of the words used in s.49ZT of the AD Act.
The Appellant submitted that the words were no more than the expression of contrary opinion. Reference was made to the Appellant's words during cross-examination that "people are what people believe in. If people didn't have different beliefs, there wouldn't be a plebiscite." The Appellant also referred to her statement in cross-examination that: "Yes, it is against what I believe in. It doesn't mean I hate homosexual people."

[11]

Respondent's Submissions

According to the Respondent, the ordinary meaning of the words said by the Appellant can only be determined to be vilifying in the circumstances, namely: "(a) The appellant demanded publicly that I remove the rainbow flag from my balcony and did so in an angry manner that intimidated me and while stating that the flag was "offensive to [her] culture and religion" which are words capable of inciting hatred for homosexuals because she intimidated (by reference to the words' "ordinary meaning") that by extension I am offensive, that I am immoral, that any person standing by and hearing her say those words should also think of me as offensive and immoral. (b) The appellant said to me, in an angry way, words to the effect that gay men should not be able to marry until they can "breastfeed" and "have children" which is obviously biologically impossible and therefore vilifying of gay men by suggesting that they are unequal before the law because of their incapacity to breastfeed or have children. She said this in the context of being offended by my homosexuality and in public so that others could hear her and so she could "rouse" or "stimulate" any ordinary member of the public "a feeling of hostility towards homosexual men". (c) The appellant said to a police officer words to the effect that the rainbow flag is equivalent to the flag used by the terrorist organisation ISIS and consequently intimated to everyone around her including the police officer that: (i) gay people are terrorists; and (ii) gay people use a flag to convey their messages of terrorism. (d) Section 28 of the Tribunal Act gives the Tribunal power to make findings of fact and determine how proceedings should run and without regard to the rules of evidence. The appellant has not shown any error of law so far as the Tribunal below's findings, particularly when the Tribunal below's task was to determine the ordinary meaning of the words said by the appellant to establish whether she had contravened s 49ZT of the Act. (e) Further, 21 Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 permits an appeal from the decision below "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds." (f) There are several cases that determine what is "a question of law". For example, in the Appeal Panel in Rogers v Vinoly [2016] NSWCATAP 2, it was said: [12] The Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Pozzolanic) identified five general propositions in relation to the distinction between questions of law and fact. These were extracted by the High Court in Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) (Agfa-Gevaert): The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. (22) Jedko Game Co Pty Ltd v Collector or Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (23) Life Insurance Co or Australia Ltd v Phillips (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner or Taxation (1956) 94 CLR 509 at 512; Neal v Department or Transport (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491. The meaning of a technical legal term is a question of law. (24) Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Federal Commissioner or Taxation (1979) 40 FLR 208 at 215. The effect or construction of a term whose meaning or interpretation is established is a question of law. (25) Life Insurance Co of Australia (1925) 36 CLR 60 at 79. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. (26) Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJ. In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. (27) Pozzolanic (1993) 43 FCR 280 at 288, citing Hope (1980) 144 CLR 1 at 8. (emphasis added)"
On the basis of the statements of principle reported above, the Respondent submitted that the Appellant cannot seek to re-try her case on the ground that the Tribunal below made an error of law in: "(a) finding that the Appellant made the public statements I alleged she made; (b) determining the ordinary meaning of the words in s.49ZT; (c) finding (as a matter of fact, not law) that the meaning of the words stated by the appellant in the public statements she was found to have made, fall within the ordinary meaning of the words in s. 49 ZT of the AD Act."

[12]

Consideration

The Tribunal's conclusions were expressed at paragraphs [40] and [41] as follows: "40 An objective test must be used to determine whether a public act had the capacity to incite the requisite emotion in an ordinary person in the class of persons in the audience or likely audience. The first statement made by the Respondent, that the Applicant should remove the rainbow flag because it was "offensive to my culture and religion" is objectively offensive, expressed to incite or stimulate hostility. The manner in which the Respondent made her demand was inappropriate and objectively likely to incite hatred, serious contempt or severe ridicule of homosexual persons, and other LGBTQIA+ persons for whom the rainbow flag is an accepted symbol of identity, in an ordinary member of the general public or local residents, in Ashfield, the Inner West Council area, or elsewhere. 41. The second statement made by the Respondent on 15 November 2017 was to the effect that the Applicant should not be afforded the right to marry "until [he] could breastfeed and have children". The objective understanding of this statement is that a person who can't breastfeed or have children should not be afforded an equal right to marry the person of their choosing. The statement seeks to legitimise serious contempt or severe ridicule of the homosexual men by identifying matters from which they are biologically excluded as a means of justifying their inequality at law. It is objectively likely to rouse, stimulate, urge, stir up or animate hatred, serious contempt or severe ridicule of homosexual men in an ordinary member of the specified audience. Whilst "hatred", "contempt" and "ridicule" incorporate a broad range or spectrum of emotions, the Tribunal considers that, at the very least, the words spoken by the Respondent are objectively likely to "rouse" or "stimulate" in an ordinary member of the public or local resident "a feeling of hostility" towards homosexual men, and significant or important feelings or attitudes that homosexual men are "worthless" or of "little account", to use the Macquarie and Oxford Dictionary definitions expressed above."
In our view, there is a difficulty with the finding in respect of the first statement, that the Applicant should remove the rainbow flag because it was "offensive to my culture and religion" and the conclusion that this statement "is objectively offensive, expressed to incite or stimulate hostility". This finding appears to us to be contrary to the principle referred to in Burns v Sunol [2015] NSWCATAD 62 at [31] where the following was stated: "It is not unlawful for Mr Sunol to express his disagreement or indeed his disgust, with marriage between people of the same sex. That kind of sentiment does not reach the threshold inciting hatred or serious contempt for such people on the ground of homosexuality."
Further, it seems to pay insufficient regard to the general cautionary tone that should be applied to the interpretation of the vilification laws in New South Wales, having regard for the principle of freedom of speech in respect of political matters. In Sunol v Collier (No 2) [2012] NSWCA 44, Allsop P said: "59 Thus, one comes to the task of construing s 49ZT recognising the high value that the common law (and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that restrict it. This approach is reinforced by the recognition of the limitation on Commonwealth, State and Territory legislative power by the implied Constitutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[45] and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton v The Queen [2012] HCA 2 at [32]. 60 The text of s 49ZT reflects an attempt by Parliament to weigh the policies of preventing vilification and permitting appropriate avenues of free speech. Subsections (1) and (2) should be read together as a coherent provision that makes certain public acts unlawful. Subsection (2) is not a defence; it is a provision which assists in the defining of what is unlawful. It attempts to ensure that certain conduct is not rendered unlawful by the operation of subsection (1)."
The use of symbols and flags can engender disagreement and debate about what they stand for. For example, there are many instances where symbols used in support of certain political views may be regarded as offensive by certain groups of people, such as: 1. the Nazi flag may be regarded as offensive to the Jewish culture and religion; 2. the waving of an orange flag by protestants in Northern Ireland celebrating the Battle of the Boyne may be regarded as offensive to the culture and religion of Roman Catholicism in Northern Ireland; and 3. statues of colonialists or white confederation slave owners similarly may be seen as being offensive to some people.
Merely expressing disagreement with the rainbow flag, as a symbol of same sex marriage, because it was "offensive to my culture and religion", does not in our view, reach the threshold of inciting hatred or serious contempt of such people.
With regard to the second statement relied upon by the Tribunal, in our view, on balance, we reject the ground of appeal.
We note there are several cases that determine what is "a question of law". For example, in the Appeal Panel in Rogers v Vinoly [2016] NSWCATAP 2, it was stated at [12]: "The question whether facts fully found fall within the provision of a statutory enactment not be construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7, where Mason J with whom Gibbs, Steven, Murphy and Aitken JJ agreed; Australian National Railways Commission v Collector of Customs (SA) [1985] FCA 312; (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJA. The Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287, the Full Court qualified the above proposition wherein at 288 citing Hope (1980) 144 CLR 1 at 8 that "when a court uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact"."
We note that in applying this principle, it is relevant that the Tribunal below took into account all of the circumstances of the way in which the statement was expressed and the manner in which it was expressed in coming to its overall conclusion. It is also plain that the Tribunal below correctly identified the issues and the relevant legal principles in coming to its conclusion as to whether or not the acts had the capacity to incite the requisite emotion in an ordinary person in the class of persons in the audience or likely audience. Accordingly, irrespective of what may be our impression or view of the effect of the statement, we have concluded that with respect to this second statement it was reasonably open for the Tribunal to hold that the facts of the case fall within the ordinary meaning of the words of the statute so that no error of law arises.
Further, as stated at paragraph [31] of Burns v Sunol [2015] NSWCATAD 62: "When the opinion is expressed using derogatory language such as "fag", "hates", "abomination" and "wrath", the opinion has the capacity or effect of inciting the ordinary internet user to hatred and/or serious contempt against homosexuals on the ground of their homosexuality."
The second statement, that the Respondent should not be afforded the right to marry "until [he] could breastfeed and have children", could reasonably be regarded as using derogatory ridicule to belittle homosexual men. In our opinion, it was reasonably open for the Tribunal to conclude that "The objective understanding of this statement is that a person who can't breastfeed or have children should not be afforded an equal right to marry the person of their choosing". Further, in our view it was reasonably open to the tribunal to find that "The statement seeks to legitimise serious contempt or severe ridicule of the homosexual men by identifying matters from which they are biologically excluded as a means of justifying their inequality at law".
Accordingly, we reject this ground of appeal in respect of the finding that the second statement amounted to unlawful homosexual vilification.

[16]

Consideration

In our view, the Appellant has unduly focused on paragraph [36] without proper regard to the totality of the reasons given in the Decision, in particular paragraphs [34] and [35], which states as follows: "34 In evidence the Applicant was direct, clear and made appropriate concessions, including that the display of the rainbow flag on 15 November 2017 was in breach of the strata regulations, and that he had publicised the incident by disseminating the conversation with the Respondent on Facebook. Ms Di Natale's evidence largely corroborated the Applicant's although she did not hear the entirety of the conversations between the Applicant and Respondent, and did not hear the conversation between the respondent and police where the Respondent is alleged to have compared the rainbow flag to the ISIS flag. 35 In contrast, the respondent had a very poor recollection of the events she was questioned about, said that she was unable to recall specific conversations and direct speech, and was defensive and deflective in her responses to the Applicant's questioning about the specific statements and conduct he attributed to her on particular dates. She was easily inflamed when questioned about her conduct and stated in cross examination that the concept of gay marriage was offensive to her, was offensive to her upbringing and religion, and that the Applicant "made the whole thing up because of a gay issue", "turned it into a gay issue" when "it was about strata" and was "only continuing because of support for him from her political opponents". She agreed that the Applicant was entitled to hang the rainbow flag inside his property, but admitted that "I do have a problem with the flag", said it was "against what I believe in", and that the rainbow flag was "offensive to people because of what it stands for". She stated that the way she had grown up was that "marriage is between a man and a woman. People should not commit adultery. Children should respect their parents". Whilst denying that she said to Police that the rainbow flag was "similar" to the ISIS flag, she agreed that she had referred to the ISIS flag as "an analogy"."
Having regard to paragraphs [34] and [35], in our view, it is clear the Tribunal below was mindful that it was the Respondent's task to discharge the onus of proof and that the Tribunal was satisfied that this onus had been discharged by the Respondent in his evidence and that of Ms Di Natale over the evidence of the Appellant. Further, in our view, the Tribunal accepted the Respondent's evidence not merely and simply because it was satisfied about one statement, but because of its view of the credibility of the Respondent as a witness and that of Ms Di Natale over the less credible and less satisfying evidence of the Appellant.
Accordingly, we reject this ground of appeal.

[22]

Appellant's Submissions

The Appellant put forward two grounds of appeal (numbered 6 and 7) as follows: 1. that the Members erred in law in determining that Ms Passas should be more heavily penalised by reason of being an elected councillor when the matters subject of the Application took place in a private residential setting and in Ms Passas' "private capacity" [55]; and 2. that the Members erred in considering the Australian Marriage Law Postal Survey a relevant factor in assessing penalty [58].
Paragraph [55] of the Decision states: "55 The audience and likely audience of the Respondent's conduct on 15 November 2017 is significant to the remedy being sought by the Applicant because, at the time of the incidents, the Respondent was an elected councillor on the Inner West Council and the appointed Deputy Mayor. The Tribunal accepts the Applicant's submissions that the Respondent is a prominent public figure, and was known to and represented local residents in that area at the time of the incidents in November 2017. Whilst the Tribunal accepts that the Respondent's conduct was done by her in her private capacity, rather than as a member of the local council, her position on the local council at that time and in previous years amplifies the effect or impact that her conduct has or is likely to have on the audience and supports the remedy sought by the Applicant of a public apology by the Respondent to be published in the local Inner West Newspaper."
The Appellant submitted that: 1. To the extent that the fact of the Appellant being an elected councillor and the deputy mayor was being used to assist in determining that she is guilty of homosexual vilification, such an approach is not a relevant factor for consideration, not supported by the authorities and bad in law. 2. To the extent that such facts have been used to determine the penalty and formal apology, such an approach is likewise not a relevant factor, not supported by the authorities and also bad in law, as well as being manifestly excessive and punitive.
Next the Appellant referred to paragraph [58] of the Decision which reads: "58 The timing context of the Respondent's conduct on 15 November 2017 is relevant to the determination of the level of non-pecuniary harm suffered by the Applicant. As the Applicant submitted, 15 November 2017 should have been a day of unfettered celebration of the Yes vote, the occasion when the rights of homosexual persons to marry whom they wish were finally publicly acknowledged and accepted. Instead, the Applicant's celebrations were publicly marred by the Respondent's acts of homosexual vilification. Whilst the Applicant publicised the Respondent's conduct in a public Facebook post and in subsequent complaints and representations to the local council, and there was a significant amount of media interest and public support for the Applicant as a result, the Tribunal does not consider that this diminished the negative impact of the Respondent's statements on the Applicant, only amplifying them to a wider audience."
The Appellant contended that taking into account the fact that the alleged vilification took place on the day of celebration of the Yes vote, was wrong and without support of the authorities.

[27]

Consideration

The Tribunal is unable to accept the underlying fundamental premise of the Appellant's ground of appeal in this instance. We are unable to agree with the Appellant that the correct interpretation of the first sentence of paragraph [36] of the Decision is that the Tribunal only had regard for the witnesses' oral evidence and had no regard to the Appellant's written material or affidavit material.
Rather, it seems to us clear that the Tribunal below had regard for and did consider the affidavit material of the Appellant and her written material before the Tribunal as well as the oral evidence. The effect of the first sentence of paragraph [36] of the Decision is that, in weighing up all of the evidence, the Tribunal below preferred the evidence of the Respondent and upheld the Respondent's credibility because of, or "on the basis of", its assessment of how the witnesses gave their oral evidence. This does not demonstrate an erroneous approach in the fact-finding process.
The Tribunal in the previous paragraphs set out the matters of how the witnesses gave oral evidence in support of its conclusion in this regard. For example, the Tribunal referred to the three statements provided by the Appellant before it: paragraph [36] of the Decision. The Tribunal also referred to a number of handwritten and typed notes annexed to the Appellant's statement: paragraph [25] of the Decision. This was in addition to specifically referring to the affidavit of the Appellant dated 8 August 2018 as being tendered before the Tribunal for the purpose of its deliberations: see [6] of the Decision.
Accordingly, the Tribunal is unable to agree that the Tribunal below placed no weight on all of this material (being the written material tendered by the Appellant), or that it only relied upon the oral evidence in making its conclusions as to fact.
To the extent that the Appellant sought to say that the Tribunal erred in law in failing to give "sufficient" weight to the affidavit material filed by the Appellant, we reject this ground as not giving rise to an error of law: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [1999] HCA 21 at [45]; Per Gleeson CJ and McHugh J; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [16] per Basten JA (McColl and McFarlan JJA agreeing); Zah v Zai [2016] NSWCATAP 242 at [83].
Accordingly, we reject this ground of appeal.

[29]

Appellant's Submissions

The Appellant in her submissions contended "that the Senior Member, D. Dinnen, who presided and had conduct of the proceedings, unfairly assisted Mr Comensoli in presenting his case".
The matters relied upon by the Appellant in this regard were as follows: "83. After Mr Comensoli had closed his case and made his final submissions, Senior Member Dinnen had this exchange with Mr Comensoli: MEMBER PRESIDING: I have some questions Mr Comensoli that you need to address the Tribunal on. COMENSOLI: Yes. MEMBER PRESIDING: The first is about the context of the statements being made on the 15th of November 2017. What submissions would you make to the Tribunal, if any, about it being in the context of the plebiscite vote and how or whether that affected what occurred on that day. (Transcript, page 113, line 3) … 86. The following extract is from the transcript, the exchanges also taking place after Mr Comensoli had presented his evidence, closed his case and completed his final submissions: MEMBER PRESIDING: You haven't put on any evidence of any specific effect that the events have had on you after that other than what we've seen before us in terms of the Facebook post and the newspaper articles. To the extent that you've not put on any evidence of any specific effect, the Tribunal can consider a generalised submission but is there anything specific? COMENSOLI: Well no. STICHTER: With respect Member, it's not up to the Tribunal to plug the holes in his evidence. MEMBER PRESIDING: Mr Stichter, the Tribunal is not plugging any holes. The Applicant is self-represented and the Tribunal is identifying what evidence there is and what submissions the applicant is making with respect to that evidence. STICHTER: I agree but on the other hand, if he has omitted the file evidence on certain points, the Tribunal should not be saying after he has closed his evidence and closed his submissions and say what would you like to say about such and such. MEMBER PRESIDING: Well that's not what I've said. I've asked what does the Applicant submit in relation to the material before the Tribunal that could provide support for the submissions he made about pain, hurt and suffering. (Transcript page 114, line 13 forward) 87. The matters on which Senior Member Dinnen was inviting Mr Comensoli to address, set out in the above extract, and which were not answered after objection, are the same matters which the judgment [sic] says were not before the court [sic] and therefore could not justify a $10,000 fine. 88. It is again submitted that the Senior Member exceeded her role as the member presiding over the hearing and that she elicited, and sought to elicit, integral matters to Mr Comensoli's case. 89. This is all the more inappropriate in that the transcript records the following: STICHTER: You haven't provided any evidences for what you've been through the last 10 months have you? COMENSOLI: Incorrect. STICHTER: Have you flied any evidence as to what you've been through the last 10 months as you put it? COMENSOLI: No I have not because today … STICHTER: I am just asking … COMENSOLI: And I am answering your question. STICHTER: The answer is no. (Transcript page 10, line 10 forward)"

[31]

Consideration

In our view, the matters raised by the Appellant do not demonstrate that the Tribunal or its Presiding Member treated the Appellant unfairly in the hearing before the Tribunal. In particular, we agree with the remarks of the Presiding Member that the Tribunal was doing no more than identifying what evidence there is and what submissions the Respondent was intending to make with respect to that evidence going to the question of what level of hurt or injury the Respondent had suffered so as to support a claim of compensation. At transcript page 115.1-.15, Mr Stichter for the Appellant said that there was a sentence in the Respondent's affidavit that dealt with the issue of pain and suffering and "that's what should be relied on". The Presiding Member indicated that she was merely seeking to confirm with the Respondent that this was all that was being relied upon.
The Presiding Member then referred to the Respondent's statement where he said: "Councillor Passas' intimidating and threatening behaviour was distressing and has made me feel uncomfortable and unsafe in my own home." (Transcript page 115.7-.9)
In response, the Respondent stated at lines 10-16: "Correct. I don't know how you prove that you feel unsafe in your own home but I just ask the Members to consider it a general submission that homosexual vilification, I would imagine, would cause distress. It's not based upon whether something is personally offensive. I just want to emphasise that it's up to the Members to decide whether those comments said to me breach the Act, breach the legislation."
The matter there ended. So it is clear that there was no additional evidence taken by the Tribunal after evidence had closed or that the Appellant was unfairly dealt with as a result of the Presiding Member trying to clarify exactly what was being relied upon.
The Tribunal at paragraph [57] of the Decision referred to the fact that the Respondent led no medical evidence or any evidence of any specific pecuniary losses or damage suffered as a result of the Appellant's conduct and statements. Accordingly, in any event, we fail to see how any prejudice was occasioned to the Appellant arising out of the matters relied upon by the Appellant in respect of this ground of appeal.
Accordingly, we reject this ground of appeal.

[32]

Appellant's Submissions

The grounds of appeal in respect of which leave was sought can be dealt with together. Grounds relied upon in the submissions to us were as follows: 1. that the Members hearing the original proceedings erred in preferring the evidence of Mr Comensoli and Ms Di Natale when their evidence and the evidence of Ms Passas were in conflict; 2. that the reasons given in the decision for preferring the evidence of Mr Comensoli over the evidence of Ms Passas are flawed and not in accordance with the evidence given; 3. that at various places of their decision, the Members have incorrectly described, summarised, and incorrectly quoted, evidence given by Ms Passas in the proceedings, including the discussion as to the context of the use of the word "disgusting" by Ms Passas (at paragraphs [43], [51] and [52] of the decision below); 4. that the Members erred in not placing greater weight on Mr Comensoli in having himself disseminated and distributed his alleged complaints; 5. that the Members erred in not placing greater weight on the harassment and vilification sustained by Ms Passas on an ongoing basis, including harassment and vilification at least partly by Mr Comensoli.
The submissions of the Appellant in respect of the above grounds covered many aspects of the evidence and the Tribunal's treatment of that evidence. The main matters raised by the Appellant can be summarised as follows: 1. Ms Di Natale is a housemate of the Respondent and a friend, and hence the Tribunal should have had more regard to the fact that she could not be described as an independent witness. 2. Ms Di Natale's evidence had significant differences from the evidence of the Respondent. 3. The Tribunal failed to pay sufficient regard to the fact that the Appellant also gave evidence "in a forthright and honest manner, admitting that have made a mistake as to her recollections of certain facts". 4. Contrary to the statement at [43] of the Decision, the Appellant did not admit that she had called the Respondent "disgusting". 5. The Appellant referred to various aspects of her evidence that was not specifically referred to or regarded as determinative by the Tribunal in its Decision. 6. The Appellant alleged that the Respondent had engaged in a campaign and harassment and vilification of the Appellant and this should have been taken into account by the Tribunal below.

[34]

Consideration

An appeal against an internally reviewable decision on a question other than a question of law requires leave to appeal by the Appeal Panel: s.80(2)(b) NCAT Act.
The principles which generally guide the consideration of whether leave to appeal should be granted under s.80(2) of the NCAT Act have been summarised in Collins v Urban [2014] NSWCATAP 17 at [82]-[84]: "82 The principles which govern the granting of leave to appeal by the Appeal Panel under s 80(2)(b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal. These have recently been summarised by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Supreme Court has considered the principles which apply when granting leave to appeal to the Court from a decision of the Guardianship Tribunal in a number of cases including SAB v SEM [2013] NSWSC 253. The Guardianship Tribunal has now been absorbed into the Tribunal as the Guardianship Division. As there are alternate rights of appeal from decisions of the Guardianship Division to the Supreme Court or the Appeal Panel (see cll 12 to 14 of Schedule 6 to the Act) both by leave in the case of interlocutory decisions or on grounds other than a question of law, the same principles should apply in deciding whether to grant leave to appeal to the Court or to the Appeal Panel. 83 Further, the Appeal Panel has addressed the relevant principles to be applied when deciding whether to grant leave to extend an appeal to the merits of the decision (under s 113(2) of Administrative Decisions Tribunal Act 1997 (NSW)) in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. These principles may be applied by analogy when considering whether to grant leave to appeal under s 80(2)(b) of the Act. 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
We are not satisfied that leave to appeal should be granted. In our view, the generally recognised considerations governing a determination in favour of the grant of leave are not present in this case. In particular, we are not satisfied that any of the alleged errors can be described as plain and readily apparent and going to the central aspects of the Tribunal's decision so that it would be unjust to allow the Tribunal's findings to stand. We generally agree with the Respondent's submissions in this regard.
Dealing with each of the appeal grounds, we comment as follows.
First, it was open to the Tribunal to prefer the Respondent's evidence over that of the Appellant. The Tribunal was in the best place to assess matters of demeanour and the manner in which the witnesses presented when giving their oral evidence: Jones v Bradley [2003] NSWCA 81 at [112] per Santow JA (Meagher and Beazley JJA agreeing). The mere fact that there were differences in the evidence of the Respondent and Ms Di Natale does not augur sufficient basis for overturning the fundamental findings of fact of the Tribunal below.
Further, we note that portions of the transcript, in particular at pages 78 and 79, support the conclusion that the Appellant admitted to having an unclear recollection of certain events and that she may have been mistaken in her affidavit evidence about the events in question: see page 78 of the transcript.
Second, we refer to the Appellant's submission that the reference at paragraph [43] of the Decision to the alleged misstatement of the admission that the Appellant called the Respondent "disgusting". The Appellant contended that, at most, the Appellant referred to the Respondent's manner of talking to her as "disgusting" rather than the Respondent's homosexuality being "disgusting". It is clear to us that even assuming the correctness of this submission, this was a matter very much peripheral to the Tribunal's decision-making process. Accordingly, on this basis alone, we would decline leave to appeal on this ground.
Third, we do not think the Tribunal erred in not placing greater weight on the fact that the Respondent disseminated and distributed his alleged complaints on Facebook. The Tribunal below relied upon the admission by the Appellant that the statements were public acts and that the audience were the members of the public in the Inner West who may have heard the statements including Ms Di Natale. It did not rely upon the Respondent's own dissemination of the statement as constituting the public acts in question.
Fourth, in our view, the alleged harassment and vilification of the Respondent by the Appellant was not a relevant consideration when dealing with the Respondent's complaint. Accordingly, there was no error in not paying specific regard to this matter.

[38]

Consideration

The form of the apology ordered by the Tribunal is as follows: "On 15 November 2017, the day of the historic "Yes vote" publicising the results of the Australian same sex marriage survey, my neighbour Daniel Comensoli flew a rainbow flag from his balcony. That evening, I publicly yelled abuse at Mr Comensoli, which has been determined by the NSW Civil and Administrative Tribunal to amount to homosexual vilification. I apologise for my conduct and the impact it has had on Mr Comensoli, and for the impact it has had or was likely to have on other persons."
The Tribunal granted liberty to apply in relation to the terms of the publication and its publication within 7 days. The Appellant declined to make any use of the liberty to apply on the basis that she was appealing the decision in any event.
The form of the apology can be contrasted with that of the apology in Burns v Dye [2002] NSWADT 32 which was as follows: "Dear Mr Burns The Equal Opportunity Division of the Administrative Decisions Tribunal in a decision dated 12 March 2002 has found me to be in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which make it unlawful for any 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 homosexuality. I offer my apologies for that behaviour."
The Panel accepts that the Tribunal has a wide discretion when it comes to the terms of an apology which it can order. Nevertheless, we have some difficulty with the second sentence and in particular the statement "That evening, I publicly yelled abuse at Mr Comensoli". We accept that this was a matter of contested evidence before the Tribunal and it may be regarded as being misleading for the Appellant to have to publicly state that she had engaged in conduct which she continues to deny. Further, the proposition that what she said amounted to "abuse" adds a gloss upon the actual determination which may be regarded as beyond the role of the Tribunal which strictly upheld homosexual vilification as opposed to mere abuse.
Accordingly, in our view, the apology ought to be varied as follows: "On 15 November 2017, the day of the historic "Yes vote" publicising the results of the Australian same-sex marriage survey, my neighbour Daniel Comensoli flew a rainbow flag from his balcony. The NSW Civil and Administrative Tribunal has determined that on that occasion I made statements which are in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which made it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or serious ridicule of a person or group of persons on the ground of homosexuality. I offer my apologies for that behaviour."
We note that this may have been a matter that the Tribunal itself could have corrected if the liberty to apply provision that it afforded the Appellant had been utilised.
When it comes to the sum of $2,500 as compensation, we are not inclined to interfere with this determination. Whilst we found that the mere statement that the flag was "offensive to my culture and religion" would not amount to homosexual vilification, the sum is a sufficiently low amount compared with the maximum penalty available that it remains a reasonable sum to be awarded on compensation for the other remarks found to have amounted to homosexual vilification which were made on 15 November 2017.

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (35)

Cited By (1)