Jingru (Laura) Liu v Peter Gerald Fitz-Gibbon & Sunny Chell Park
[2022] QCAT 252
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- Jingru (Laura) Liu v Peter Gerald Fitz-Gibbon & Sunny Chell Park[2022] QCAT 252
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Jingru (Laura) Liu v Peter Gerald Fitz-Gibbon & Sunny Chell Park[2022] QCAT 252
Jingru (Laura) Liu v Peter Gerald Fitz-Gibbon & Sunny Chell Park[2022] QCAT 252
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Jingru (Laura) Liu v Peter Gerald Fitz-Gibbon & Sunny Chell Park [2022] QCAT 252 |
PARTIES: | JINGRU (LAURA) LIU (applicant) v PETER GERALD FITZ-GIBBON & SUNNY CHELL PARK (respondent) |
APPLICATION NO/S: | ADL031-20 |
MATTER TYPE: | Anti-Discrimination matters |
DELIVERED ON: | 19 June 2022 |
HEARING DATE: | 17 March 2022 |
HEARD AT: | Cairns |
DECISION OF: | Member Pearce |
ORDERS: |
|
CATCHWORDS: | RACIAL VILIFICATION – whether signs erected with racial connotation amounts to public act – whether signs erected with racial connotations are capable of being vilification if not communicated to the public. Anti-Discrimination Act 1991 (Qld) s 4A, s 124A(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100 PR v Metro Coach (Aust) Pty Ltd and Ors [2011] QCAT 421 at par [39]. |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-Represented |
Respondent: | Self-Represented |
REASONS FOR DECISION
THE PARTIES
The Applicant
- [1]The Applicant, Ms Liu has made a complaint of racial vilification against her neighbours Mr Fitz-Gibbon and Mr Park. The respondents have also made a complaint regarding sexual vilification against Ms Liu. This has been dealt with in a separate decision. Both matters were heard together over a 2-day hearing in Cairns on the 17th and 18th of March 2022.
- [2]From the outset it should be noted that these complaints are merely 2 in a long history of disputes and actions between the parties involved. There appears to be a long history of ongoing disputes between the parties ranging from fencing disputes, noise complaints, reports to council for contraventions of council by-laws and even assault. Police have also been involved and there appears to be peace and good behaviour orders in place against each other.
- [3]The Applicant is a resident of Australia of Chinese descent. The Applicant provided information to the Tribunal that she had sub-divided her land and sold one of the housing blocks to the respondents who subsequently constructed a home, which is how they came to be neighbours.
The Respondents
- [4]Mr Fitz-Gibbon and Mr Park purchased land from the Applicant and contrasted their home. It appears relations between the parties were amicable until a dispute arose over a dividing fence. Although there are various versions of when the disputes arose. Since that period of time there have been a great number of ongoing disputes with behaviour appearing to escalate.
BACKGROUND
- [5]On 11 March 2020 the Applicant made a complaint to the Queensland Human Rights Commission (QHRC) for racial vilification under section 124A of the Anti-Discrimination Act 1991 (Qld).
- [6]On 4 February 2020 at the first mention of the Coronavirus outbreak the Applicant was in China visiting family. The applicant stated she was in voluntary quarantine on the Chinese mainland and concerned regard the outbreak of Coronavirus. The applicant received an email from the respondent Mr Fitz-Gibbon with the subject matter “Quarantine”. The relevant part if the email reads:
“Comerad Laura and Robert
Just to remind you of your quarantine obligations.
Attached is an extract from the Homeland Security Department obligations on self-quarantine. Please observe them for the protection of the local community. In the past you have shown a disregard for Australian law no doubt as a result of your connection to Communist China where the rule of law has little value and whose flag you so proudly display”
- [7]The Applicant states that she was then advised there was an official looking warning sign erected at the front of their home.
- [8]The applicant provided an image of the sign erected. It read:
“Quarantined, 14 days, Coronavirus, Do Not Enter”
- [9]The signed was erected on what appears to be a star picket at the front of the Applicants residence. It should be noted that the respondent does not deny erecting the sign.
- [10]The applicant also produced an image of a sign printed and taped over a for sale sign outside the applicant’s house which reads:
“Communist Chinese Consulate, Going Cheap”
- [11]The respondent does not deny erecting this sign and in fact advised it was to be a humorous joke for his own enjoyment. The respondent stated:
“It was erected for my own edification only the boredom of lockdown”
- [12]The Applicant filed a further image of a sign erected by the respondent that reads:
“We support the people of HK in their fight for Freedom, Justice and Democracy, Down with Tyranny”
- [13]Again the respondent admits to erecting the sign.
- [14]The applicant also accused the respondent of making racist statements via YouTube in relation to the applicant selling her house. The applicant was unable to produce this for the Tribunal as it appears it has been removed from the internet. This has not been dealt with in this decision.
- [15]Both the applicant and the respondents in their written submissions and during the hearing have raised an enormous number of instances of antagonism and negative interaction between each of them that appears to extend over a considerable period. These included allegations of damage to vehicles, burying dead fish under bushes, the placement of rubbish bins, interactions with guests at both properties and assaults, none of which are relevant to the proceedings before the Tribunal. Due to the long-standing nature of their various disputes, it is clear that both parties were unable to particularise the issues relevant to the hearing. A great number of acts were raised. The Tribunal will only deal with the items below that form the basis of the complaint to the QHRC under section 124A of the Anti-Discrimination Act 1991 (Qld).
- [16]The applicant did not produce any witnesses. The applicant’s partner had intended to act as witness but chose to remain in the proceedings to assist the applicant in the hearing. The applicant gave evidence herself at the hearing and was cross examined by the respondent.
VILIFICATION
- [17]For vilification to occur, three distinct points must be satisfied. Firstly, the unlawful discrimination must occur on the grounds of either race, religion, sexuality or gender identity. Secondly, a person contravening the Anti-Discrimination Act must engage in an activity to either incite hatred, serious contempt, or severe ridicule of a person or group of persons on the basis of their race, religion, sexuality or gender identity. Thirdly, the inciting of hatred, serious contempt or severe ridicule must be a public act.[1]
- [18]A public act[2] is described as any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
- [19]The obvious questions for the Tribunal to answer is, does the comments and conduct of objectionable nature, exhibited by the respondents, regardless of how distasteful they are, fall within the ambit of vilification? To reach a determination on that question, there is a requirement for the Tribunal to explore the definition of vilification and apply each part to the circumstances being complained of.
- [20]The prohibition as prescribed in the definition implies that the threshold for vilification is that is has to be a public act. For there to be any basis in the Applicant’s argument there must be evidence of a public act. For it to be a public act there must be a communication to the public. This includes conduct observable by the public.
The email
- [21]Whilst the content of the email is offensive and demonstrates the contempt felt for the applicant by the respondents the question of whether the email is public needs to be determined.
- [22]The applicant alleges the email was sent to her email address and copied in to other recipients. The copies of the emails produced for the Tribunal do not indicate any other parties were copied in. No evidence was led to the contrary. There appeared to be some confusion by the applicant in relation to another email sent with a link to a YouTube video which was purportedly aimed at racist slurs against the applicant. This email was copied to others. Due to the fact that the public nature of this email cannot be substantiated it fails to meet the threshold test. The email is not found to be vilification under section 124A.
The sign regarding coronavirus quarantine
- [23]The public nature of the sign erected on the applicant’s front nature strip is less contentious. Given the positioning of the sign it can clearly be determined as a “public act”.
- [24]The sign must also be seen to incite hatred, serious contempt or severe ridicule towards the applicant. To incite has been found to mean “to urge on; stimulate or prompt to action”.[3]No evidence was led by the application that she suffered serious contempt or ridicule or that hatred was incited. The applicant did speak to conversations she had had with a local leader of the Chinese community who had relayed events where Chinese people had been unfortunately targeted in the unfolding coronavirus pandemic. However, the applicant was unable to point to instances where this was the case. In addition, it needs to be pointed out that the sign in no way mentions China or Chinese. Its simply states quarantine and coronavirus. Whilst distasteful and offensive, the respondent’s behaviour cannot be automatically attributed to the applicant’s race.
The consular sign and HK sign
- [25]It was well accepted by evidence provided by both parties that these signs, whilst erected by the respondent, were not “public acts”. Both signs appear to have been erected by the respondent facing the applicant’s property. Not directed to the front of the house or visible from the street. Again, whilst offensive, antagonistic and in poor taste the acts of the respondent cannot be held to be public as the only people to witness these signs would be those invited onto the property of the applicant or respondent. Not the public in general.
FINDINGS OF THE TRIBUNAL
- [26]Aspects of both the applicants and the respondents evidence caused the Tribunal to find both parties unreliable witnesses. Much of the evidence and assertions made by both parties could not be corroborated with the exception of the images provided. It would appear to the Tribunal that the ongoing dispute between the parties has reached such levels that neither is able to clearly articulate events and issues at hand. Both parties appear to be prepared to go to great lengths to discredit and cause harm to the other.
- [27]It is accepted by the Tribunal that the acts of the respondents are in poor taste, are offensive and petty and undoubtedly designed to illicit a negative response from the applicant. They do not however meet the threshold tests under section 124A of the Anti-discrimination Act for racial vilification.
COSTS
- [28]For matters determined in the Tribunal, the starting position in relation to costs under the QCAT Act is the principle that, other than as provided under the Act or and enabling Act, each party to a proceeding is to bear its own costs for the proceeding.[4] The Tribunal is satisfied that there are no compelling circumstances why the Tribunal should depart from the presumption as provided with the legislation.[5]
DECISION
- [29]The Tribunal’s decision with regards to the application in this matter is:
- The Applicant’s application is dismissed.
- The parties bear their own costs.