Anderson v Thompson [2001] NSWADT 11

CITATION: Anderson v Thompson [2001] NSWADT 11 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Mary Anderson RESPONDENT Troy Thompson FILE NUMBER: 001052 HEARING DATES: 11/01/2001 SUBMISSIONS CLOSED: 01/11/2001 DATE OF DECISION: 02/05/2001

BEFORE: Ireland G - Judicial Member; Clayton S - Member; Lau L - Member APPLICATION: Racial - Vilification - Victimisation - Vilification - Racial MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Western Legal Service v Jones. APPLICANT REPRESENTATION: In person RESPONDENT No Appearance ORDERS: 1. Complaint of racial vilification substantiated; 2. Complaint of victimisation dismissed; 3. Respondent to pay the Applicant, by way of compensation for the racial vilification, an amount of $5,000

1 This enquiry has come to the Tribunal as a result of the reference to it by the Anti-Discrimination Board, under section 94(1) of the Anti-Discrimination Act 1977 (the Act). The Board referred to the Tribunal a complaint made by Mrs Mary Anderson, on 11 January 2000, in which Mrs Anderson alleged that she had been discriminated against on the ground of racial vilification. 2 The Board also referred to a further claim of victimisation of Mrs Anderson by the respondent, Mr Thompson. In relation to the victimisation complaint, the Board suggested that there were two circumstances that gave rise to victimisation. One of those circumstances was the subject of a reference to Mr Thompson, back in May 2000, but the Board, in referring the complaint to the Tribunal for enquiry, did not include that complaint of victimisation as one of the grounds for enquiry. 3 The Board, however, referred to a complaint of victimisation which Mrs Anderson made to it, under cover of a letter of 20 September 2000, but that complaint was made after the Board had referred the original complaints of Mrs Anderson and Mr Thompson and, so far as the material supplied by the Board is concerned, it appears that the later complaint of victimisation had not been either investigated by the Board or referred by the Board to Mr Thompson. In these circumstances, the Tribunal considers that there is no basis for the Tribunal to consider this latter complaint of victimisation that was lodged with the Board on 20 September 2000. 4 The Tribunal has, therefore, confined its consideration of this enquiry to a complaint of racial vilification. In considering that complaint, the Board first had to consider whether the matter should proceed to a hearing today, in the absence of Mr Thompson. The Tribunal is always conscious of the need to ensure that parties, who have been referred under reference from the Board as a party to the enquiry, have had ample opportunity to appear before the Tribunal and to put their case to it. 5 In this enquiry, the Tribunal is satisfied that Mr Thompson, at all times during the investigation of the complaint by the Board and on the occasions when the Tribunal has sought to have the parties before it for the purposes of managing the preparation of the case for hearing, that Mr Thompson on each of these occasions has not responded or has not appeared. 6 In relation to the hearing of the enquiry today, the registry of the Tribunal wrote to Mr Thompson on 11 December 2000 advising him that the matter had been set down for hearing today at 10am and requiring his attendance. That letter was delivered by a courier to Mr Thompson's address at 10/23 Seaview Street, Cronulla, at 10.40am on 12 December 2000, and the courier has advised the registry that the letter was left in the letterbox at that address. There was no answer to the courier's attempt to deliver it to the unit. In these circumstances, the Tribunal has determined that it is appropriate that it proceeds to determine the enquiry in the absence of Mr Thompson. 7 The evidence that was before the Tribunal consisted of the President's report made by the President of the Anti-Discrimination Board to the Tribunal, which was received as an exhibit, and the oral evidence of Mrs Anderson. The Tribunal considers that Mrs Anderson has demonstrated that she is a reliable witness on a number of occasions, in which she referred to incidents in which Mr Thompson had abused Mrs Anderson, either verbally or by his conduct. There were occasions when she had complained to the police and she had taken action to obtain an apprehended violence order from the Sutherland Court against Mr Thompson. These actions of Mrs Anderson are all supportive of her evidence and are consistent with the details of the evidence that she gave to the Tribunal. 8 Her actions also support her contention of the degree of stress and concern for her safety for herself and her family that she held as a consequence of the abuse and conduct of Mr Thompson towards her. The Tribunal has, therefore, accepted the accuracy of Mrs Anderson's statements to it of the incidents about which she complains. 9 Mrs Anderson related that, on 26 November 1999, she returned from shopping with her son to her unit at Unit 11, 23 Seaview Street, Cronulla, which is a unit situated on the first floor of that building. After attending at her unit she went to her garage, which is situated below the ground level of the block of units. She stated that her garage is next to the garage of unit ten in that building. When she came to her garage, Mrs Anderson noticed that the door to the garage of unit ten was opened and that the light was on in that garage and that the television set in that garage was on. Mr Thompson, the respondent, and his girlfriend, Tiffany Price, and a friend, were in the garage. 10 Mrs Anderson said that she had noticed that Mr Thompson and Ms Price had occupied the garage as their living accommodation since May 1999. Mrs Anderson had noticed that in the garage was a bed and a television set. There were no washing facilities in the garage but that she had observed Mr Thompson washing under an outside tap, which was near the door to her garage, number eleven. Mrs Anderson said that she had also noticed that Mr Thompson used a common toilet in the basement of the building. No doubt, these accommodation arrangements were most unsatisfactory. 11 On this occasion, when Mrs Anderson left her garage, she walked to the stairwell leading to the upper storeys of the unit building. As she entered the doorway to the stairs, Mr Thompson rushed towards the door and pushed it open with the effect that the door hit Mrs Anderson on her face. Mr Thompson then came up close to her, she said only about ten metres away from her face. Mr Thompson was holding the door open which prevented Mrs Anderson from proceeding up the stairs. She said that she was shaking and scared. She said that Mr Thompson said to her, "Fuck off, you black slut. Go back to where you belong. Go to bloody Basia," (who was the area manager of the Housing Department), "Go where you want to go. I am staying here, this is my garage." 12 Mrs Anderson said that Mr Thompson was very angry, he was yelling and what he said he said in a very loud voice and she said that his eyes were standing out of their sockets. Mrs Anderson said that she did not respond to Mr Thompson and that she slipped away as quickly as she could and she ran up the stairs and, as she did, her fifteen year old son, who was in her unit on the first floor, opened the door of unit 11 and shouted to her, "Mum, are you all right? What is happening?" Mrs Anderson said to him, "don't come out." Mrs Anderson also said that the occupier of unit number eight, Mrs Romeo, also heard the noise and that, when Mrs Anderson returned to her flat, she immediately received a phone call from Mrs Romeo who asked her was she all right and arranged to see Mrs Anderson the following morning. 13 Mrs Anderson stated that she was crying and she could not talk. Mrs Anderson said that, when she had calmed down which is after a period of approximately 3 hours, at 9pm, she called the police. When she had explained to the police what had occurred, the police knocked on the door of unit ten but there was no answer. The police then went to the garage but obtained no answer there. The police told Mrs Anderson to stay inside but took no further action. 14 Mrs Anderson explained that Mrs Basia was the area manager of the Housing Department and that Mrs Anderson had lodged a complaint to Mrs Basia about Mr Thompson's use of the garage. Mrs Anderson had received a reply from the Department of Housing, in December 1999, advising her that the problem was being taken care of. 15 On 29 December 1999, Mrs Anderson filed a complaint with the Sutherland Court, in which she sought the making of an apprehended violence order against Mr Thompson. On 31 December 1999, while Mrs Anderson was walking home from the shops with her son, Mr Thompson and Ms Price were walking along the street in the opposite direction. When they got to the corner of the street, Mr Thompson came up to Mrs Anderson and said, "Are you still here? Don't you understand I have to get rid of you?" Ms Price said to Mr Thompson, "Don't worry about her, I will take care of her." And Ms Price said to Mrs Anderson, "Fuck off, you black bitch." Mrs Anderson and her son then ran back to their unit. Mrs Anderson said that there were people in the street at that time but she did not know who those people were. 16 On 3 January 2000, Mrs Anderson stated, after the police had served the summons relating to the application for the apprehended violence order on Mr Thompson, that she was in the unit with her daughter and four grandchildren and there was then a loud knocking on the wall adjoining unit ten and unit eleven and the voice of Mr Thompson was heard shouting, "Don't think you will get away with this, black bitch." Mrs Anderson said that this continued for about half an hour. 17 Mrs Anderson and her daughter and grandchildren then left her unit and came back after about an hour and a half. Once Mrs Anderson came back to her unit, the knocking on the wall and the shouting continued. Mr Thompson shouted, "Bloody wogs, go away. Go back to your places. Who do you think you are? You won't get away with this." 18 Mrs Anderson called the police. The police came and the noise and the shouting continued. The police knocked on the door of unit ten. Ms Price answered the door. Mrs Anderson could hear what was said. The police told Ms Price to stop the noise. Ms Price said to the police that she had no idea about the noise and the noise must be coming from somebody somewhere else. Ms Price told the police that Mrs Anderson must have been imagining it and said that Mrs Anderson had been aggressive towards her and her boyfriend. The police told Ms Price to stop the behaviour and not to make any more problems. The police then went away and the noise and conduct ceased. 19 Mrs Anderson then stated that, on 25 April 2000, her daughter came in her car to pick up Mrs Anderson. When Mrs Anderson went to the car, which was parked in front of the block of units, her daughter said to her, "Is Mr Thompson's girlfriend thin and blonde?" When Mrs Anderson affirmed that this was so, her daughter said to Mrs Anderson, "They have just sworn at me and told me that I had no right to have my car here." 20 Later that day, Mrs Anderson's son-in-law phoned the police and told them what had happened. The son-in-law told the police that he was not going to allow his wife to come again to the units to see her mother. Her daughter stayed away and did not come to the unit for some time. 21 Mrs Anderson also referred to an occasion, on 13 April 2000, when Mr Thompson's mother, who occupied unit ten, came to Mrs Anderson's door and banged on the door demanding to talk to Mrs Anderson. Mrs Anderson said that she ignored the banging but Mrs Thompson kept banging and that Mrs Anderson said to Mrs Thompson through the door, "I have nothing to say to you." Mrs Thompson did not say why she kept banging on the door but she continued for approximately 2 hours. Mrs Anderson said she did not call the police on that occasion, as she did not feel in danger. 22 Mr Thompson has ceased to live in the garage but has lived in the unit ten with his mother. Regrettably Mrs Anderson had told the Tribunal that Mrs Thompson senior had died during the recent Christmas period. Mrs Anderson said that she had had no recent contact with Mr Thompson. 23 In these circumstances, the Tribunal has to consider whether the abuse and conduct of Mr Thompson towards her, as related by Mrs Anderson, constitutes racial vilification under section 20B and 20C of the Act. 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 comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege 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. 24 A determination of whether racial vilification has occurred requires the Tribunal to be satisfied that a number of elements, arising out of those sections, is present. It is necessary, first, to determine whether what has occurred constitutes "a public act" within the meaning of section 20B of the Act. It is necessary to be satisfied, in the circumstances of this complaint, that either there was a form of communication to the public or there was conduct observable by the public. 25 The Tribunal is satisfied that the abusive words expressed by Mr Thompson, when he confronted Mrs Anderson on 26 November 1999 in the stairwell of the building, which were overheard, because they were shouted with such force, by her son in unit eleven and by Mrs Romeo in unit eight, constitutes a form of communication to the public within the meaning of section 20B(a) of the Act. The Tribunal is also satisfied that the conduct of Mr Thompson, on that occasion, and again on the occasion, on 31 December 1999, when he confronted Mrs Anderson and her son in the street, constituted conduct observable by the public, so far as his conduct on that occasion is concerned and in addition that, on that occasion, the words of abuse used to Mrs Anderson constituted a form of communication to the public. 26 Turning then to consider 20C of the Act, it is necessary for the Tribunal to be satisfied that those public acts incited either hatred towards, serious contempt for, or severe ridicule of Mrs Anderson on the ground of her race. Mrs Anderson has told the Tribunal that she was of French Mauritian nationality and the Tribunal is satisfied that that nationality constitutes a race different to the race of Mr Thompson. 27 The Tribunal has considered whether the circumstances, that Mrs Anderson has described, were such that Mr Thompson's words and actions incited, or were liable to incite, hatred, serious contempt or severe ridicule of Mrs Anderson. The meaning of the word "incite" has been considered by the Tribunal of recent times and, in particular, in the decision of the Tribunal in the year 2000, in the matter of the Western Legal Service v Jones. It is sufficient to endorse the "Oxford Dictionary" meaning of the word which was accepted in that decision which is taken to mean, "to arouse; to stimulate; to urge or spur on; to stir up; or to animate". 28 The Tribunal considers that, in the circumstances, where, on 31 December 1999, Ms Price in the street said to Mr Thompson, "Don't worry about her, I will take care of her," demonstrates that what had preceded that situation had incited Ms Price to take the antagonistic attitude towards Mrs Anderson. What had occurred previously, we have already related occurred on 26 November 1999 in the stairwell of the block of units. 29 The Tribunal is satisfied that the circumstances of the various incidents of abuse, by Mr Thompson of Mrs Anderson, stirred up Ms Price to support Mr Thompson's attitude towards her. The incident, on 13 April 2000, when Mr Thompson's mother kept banging on Mrs Anderson's front door for at least 2 hours, is another demonstration of Mr Thompson's conduct stirring up another person. 30 In addition, the incident in the street, on 31 December 1999, took place in the presence of other members of the community and, in the view of the Tribunal, had the potential to incite those members to take an adverse attitude towards Mrs Anderson. The Tribunal is satisfied, accordingly, that the actions of Mr Thompson, as they have been related, constitute an incitement within the terms of section 20C of the Act. 31 In considering whether that incitement related to an incitement to hatred towards serious contempt or severe ridicule of Mrs Anderson, the Tribunal is satisfied that the abusive words and conduct of Mr Thompson constituted the incitement of hatred towards her and serious contempt of her. 32 It is also necessary to consider whether the incitement was on the ground of Mrs Anderson's race. The use of the words, "black bitch", "black slut", are demonstrative of the attitude of Mr Thompson towards Mrs Anderson and that his conduct and abuse of Mrs Anderson had a strong connotation of racial abuse. The Tribunal finds that the incitement by Mr Thompson was sufficiently connected to his attitude of racial abuse that that incitement was on the ground of Mrs Anderson's race. 33 Finally, in considering the complaint of racial vilification, the Tribunal has considered whether any of the unlawful conduct, constituted by the incitement, is exempt from unlawfulness, under subsection 2 of 20C of the Act. After considering those subsections, the Tribunal is satisfied that Mr Thompson's conduct cannot be excused under any of those subsections. 34 The consequence is that the Tribunal finds that the complaint of racial vilification has been substantiated by Mrs Anderson. It is necessary, therefore, to consider what directions the Tribunal should give, in order to correct the injustice that Mrs Anderson has suffered at the hands of Mr Thompson. It is not unusual, in the situations where a Tribunal finds racial vilification, to order that the respondent make a written apology to the complainant and to make a direction that would restrain the respondent from committing further acts of racial vilification. It is not appropriate, in the circumstances of this matter, for such orders to be made. 35 Firstly, in relation to an apology, the Tribunal has had regard to the terms of the apprehended violence order that was made by the Sutherland Court against Mr Thompson, on 12 January 2000. That order continues in force until 12 January 2002 and it is, therefore, currently in force. One of the terms of that order is that: "The defendant must not contact the protected person by any means (including through a third person) except through the defendant's legal representative." There is nothing before the Tribunal to indicate that the respondent has a legal representative. It seems to the Tribunal that if it made an order directing Mr Thompson to give Mrs Anderson a written apology, it would require a contact to be made by Mr Thompson with Mrs Anderson which would, in the terms of the order, may have the undesirable result that Mr Thompson was in breach of that order. 36 In relation to an order restraining Mr Thompson from further acts of vilification, the Tribunal is conscious that the existing apprehended violence order continues in force until 12 January 2002 and that order is a more effective restraining order against Mr Thompson than an order would be from this Tribunal. There seems no point in the Tribunal, in these circumstances, directing Mr Thompson to be further restrained. 37 This then leaves the question of whether it is appropriate for the Tribunal to make an order for the payment of compensation by Mr Thompson to Mrs Anderson. The Tribunal considers that Mrs Anderson has demonstrated that the actions by Mr Thompson towards her, and his conduct, have caused her considerable stress and disquiet. She has said that she has been humiliated and, no doubt, she has suffered pain and suffering as a consequence. The Tribunal considers that Mrs Anderson is entitled to an award of compensation and the Tribunal has decided that an appropriate amount is the sum of $5,000. 38 In summary, therefore, the Tribunal makes the following directions: Firstly, it finds that the claim by Mrs Anderson that she has been racially vilified, under section 20B and section 20C of the Act, has been substantiated. Secondly, to the extent that it is necessary, but the Tribunal has difficulty in determining to the extent to which a claim of victimisation is before it, that any claim of victimisation, arising out of Mrs Anderson's original complaint to the Anti-Discrimination Board, has not been established and that complaint is dismissed. Thirdly, the Tribunal directs that the respondent, Mr Troy Thompson, pay to the complainant, by way of compensation for the racial vilification, an amount of $5,000.