Bharatiya v Antonio [2022] FCA 428

Federal Court of Australia

Bharatiya v Antonio [2022] FCA 428 File number: WAD 175 of 2021

Judgment of: COLVIN J

Date of judgment: 26 April 2022

Catchwords: HUMAN RIGHTS - claim by applicant under s 18C of the Racial Discrimination Act 1975 (Cth) against neighbour (respondent) - where applicant claims respondent breached s 18C by using racist and insulting language on three occasions - where descriptions of the applicant as a 'cockroach' and 'parasite' admitted by the respondent - where the first act occurred at the applicant's front gate - where the second act occurred in the respondent's driveway - where the third act took place in the early hours of the morning on the respondent's property in the absence of the applicant - whether the acts were done 'otherwise than in private' - whether the acts were reasonably likely to offend, insult, humiliate or intimidate a hypothetical person in the circumstances of the applicant - whether the acts were done for a statutory reason - whether the words used in doing the acts were chosen for a statutory reason - whether an apology should be ordered - declaration of unlawfulness ordered - compensatory damages under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) ordered - consideration of circumstances in which compensatory damages should not be exercised as a matter of discretion

Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO Racial Discrimination Act 1975 (Cth) ss 18B, 18C

Cases cited: Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 McMahon v Bowman [2000] FCMA 3 Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 Wotton v State of Queensland (No 5) [2016] FCA 1457