Huenerberg v Murray[2023] QCAT 175

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

APPEARANCES &

REPRESENTATION :

REASONS FOR DECISION

1. [1]
   Dirk Huenerberg, the complainant, is an Australian citizen and has been for more than 25 years. He is 78 years of age. His country of origin was Germany. He speaks with a heavy German accent, and clearly struggles to some degree with the English language, as evidenced by his conduct of the hearing before me. English is not his first language.
2. [2]
   He did appear to have a reasonably good understanding of spoken English, but at times he struggled to articulate himself. Because he spoke with a heavy accent, to any person like his neighbours to whom he spoke, it would have been obvious that he had not grown up in Australia, and that English was not his native tongue.
3. [3]
   At the time relevant to his complaint he lived in his home at 14 Bunderoo Circuit Pimpama. His neighbours, at number 12 Bunderoo Circuit were the respondent’s father Robert Murray and his father’s partner, referred to at different times in the evidence as the respondent’s “stepmother” and his father’s “girlfriend”. Her name is apparently Allison. There is uncontradicted evidence that she was well aware that the applicant was originally from Germany for reasons I will describe shortly.
4. [4]
   The complaint against the respondent is that on 4 July 2021 at around 11:00am he engaged in racial vilification of the complainant, essentially by making an offensive and insulting remark by calling him a “fucking German cunt”. The incident occurred on or about the front boundaries of neighbouring residential properties in a suburb south of Brisbane. The essential difference between the parties’ respective cases concerns whether the words used were “fucking German cunt” or “vermin cunt” which had no racial element, and does not include the obscenity “fucking” as an adjective, but rhymes with the words “German cunt”. 
5. [5]
   The first respondent is alleged to have engaged in that vilification on the grounds of race, in contravention of s. 124A of the Anti-Discrimination Act 1991 (Qld) (“the Act”).
6. [6]
   This case is ultimately a credit case, and the Briginshaw “test” applies. There are fundamental differences on the respective cases about what happened that day. Neither party effectively cross-examined the witnesses for the opposing party in a way that assisted in resolving the conflicts in the evidence. Whole areas of significance were ignored or just left untouched. There is conflict on the evidence about where the respondent was standing when he said what he said, because the Applicant and his witnesses say there were 3 men together in the bushes close to the common boundary whereas the respondent and his father say they were further away on their own driveway, and at the time of the comment, only 2 of them. The 3rd area of conflict concerns whether he was there with both his half-brother and his father, or just his father when the comment was made. The half- brother was not called as a witness for the respondent, and no explanation was forthcoming for that failure. The circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party. The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained. All 3 conditions are met here. I can draw the inference from that unexplained failure in this matter.
7. [7]
   The uncontradicted evidence is that in around January 20 in around January 2021 the respondent’s parents and his brother moved into the property next door to the Applicant. There is some dispute about this but I accept the applicant’s evidence that he had seen the respondent regularly coming and going from the neighbouring property since January since January 2021 until the date of the incident, Particularly because he recognised the car which he drove and which he drove packed in the driveway.
8. [8]
   In mid-March 2021 the applicant had a conversation with Allison, the respondent's step-mother, on the footpath of their respective properties she initiated a conversation where she asked was the applicant German to which he replied in in the affirmative.
9. [9]
   About a month before the subject incident in early May 2021, the applicant went to speak to Allison on her property about the fact that they had planted plants across the boundary onto the applicant’s property adjacent to his garage. I accept the applicant’s evidence that this was not said in a complaining way but simply as a matter of fact so that she could attend to removal of the encroaching plants.
10. [10]
    Her response though, about which there is no dispute on the evidence because she was not called as a witness by the respondent, was that she said that she said “You’re German, I'm Australian. What is the difference?”
11. [11]
    The applicant did not particularly understand the significance of this comment. In context it indicates clearly that she had in her mind some significance to be attached to the fact that in her mind he was not Australian but was German and that this had some significance to whether he should be asking her to remove the plants. What its significance was to her can only be guessed at. It does tend to suggest she held some sort of racially based opinion about him. Then respondent vehemently swore that he had never had any discussion with anyone before the day of the incident about the Applicant, indeed until the time of the incident itself. Were that true, and I do not accept that evidence as it is fundamentally implausible having regard to his own version of his conduct that day,  there can have been no reason whatsoever for him to be wanting to call the applicant, a complete stranger as he says he was, with no history of issues concerning them , but obviously a neighbour of his father, about whom he claims to have known nothing, a “vermin cunt”.
12. [12]
    It is also common ground that before the day when the incident in question occurred the applicant and the respondent had never met nor encountered each other nor had they had any conversation of any kind. The respondent asserts that he was not aware of any information about the applicant’s country of origin or that he was from his Germany. In light of the way that this incident is said to have occurred, I cannot accept the truthfulness of that evidence. It is not clear from the evidence, to which I shall refer shortly, that at the time of the incident or close to it,  the applicant was speaking in a way which would have indicated to any listener that he had a heavy German accent, but it is obvious that if the respondent had ever heard him speaking that it would be obvious that he had some German background, even if no-one else had mentioned it to him.
13. [13]
    The applicant gave evidence that at about 11.18 am on the 4th of July 21 he was in his son's car driving back to his home after doing another task. That led them to drive past the Murray’s house, the adjacent property, where it is common ground that the respondent was visiting that day. As the applicant and his son drove past the Murray’s house, he noted that what turned out to be the respondent's car, (but who wasn’t known to the applicant) had now been parked across the road, where the utility truck that they were driving had previously parked so he directed his son to park in his own driveway which was immediately adjacent to the boundary with number 12
14. [14]
    The applicant gave evidence, which I accept, that he got out of the passenger side of the vehicle and walked down to the public footpath in front of his property to see if his son had parked close enough to the hedges, which were just inside the applicant’s property.
15. [15]
    He says, and I accept that as he walked down the public footpath outside of their property to see if his son had parked close enough to the hedges, the respondent, who was standing with his father and half-brother son in the front yard said something to him. He said, “what are you looking at you fucking German cunt”.
16. [16]
    The applicant gave evidence which I accept, that his younger grandson Blake who was in the immediate vicinity, shouted back “what did you say that for” and that and the older grandson Dylan shook his head. I accept that when the applicant, his son and grandson Blake went over to where the 3 individuals had been standing, that they had disappeared back into their house. 
17. [17]
    The applicant’s son Olaf, who was driving the utility track gave evidence that at around at around 11:20 that day, he went in his car to his father's home and noticed that all the parking spots in the street had been taken so he decided to park in the driveway. He let his father out first so that he could park closer to the hedges that on the left side because there were expecting another vehicle and it would park adjacent to it to its right .He swears that he got out of the car and walked down the footpath where his father was and heard that a male person in the front yard who said the words that applicant said he also heard . He says that he heard his son Blake say to the person” what did you say that for?”. He suggests that somehow they must have seen the respondent that day because they “scurried off without responding”.
18. [18]
    Olaf’s evidence is in conflict with other evidence which suggests that objectively he cannot have seen them scurrying off because he would not have been in the vicinity in enough time.
19. [19]
    There is security video evidence of the time at which this incident occurred and the conduct of the applicant and his son and grandsons at the time of the incident is recorded.
20. [20]
    There is clearly some conflict between what those witnesses say happened and where they were proximate to and what that video shows.
21. [21]
    The videotape is undoubtedly the most reliable evidence and is of course real evidence. It is just an excess of 2 minutes long. In the first 5 seconds of it, one can see the applicant has walked out onto the driveway from where the ute he was in had parked, but stood on the public or footpath side at the back of the parked vehicle. His 2 grandsons are in the foreground some several metres back from where the incident occurs and inside the applicant’s yard by some distance, probably 4 or 5 metres. 

22. [22]
    The applicant then walks around the area at the front of his property on the driveway for about 10 seconds and appears to be looking at or saying something to someone in the adjoining Murray property. Although it is not possible to see whether he is saying anything. He then takes a few steps back onto his property but then turns around as if called back band goes a few metres back onto the footpath and looks into the adjoining garden of the adjoining property. It is not possible to see whether he is looking across to the driveway in the adjoining property or into the bushes which are nearer to him. For all of the first 13 or so seconds he is looking into the neighbouring yard. What he is doing or saying is not apparent and his evidence does not deal with what he is doing.
23. [23]
    He is certainly not shown as looking along the boundary line to see whether the truck is as close as possible to the hedge, although he may already have done that before the video commences. 
24. [24]
    His grandson Blake who was closest to him, near the front boundary and the mail box on it and then looks up as if to have heard something. He immediately changes direction and walks over next to his grandfather and they stand side-by-side. That is at about 16 seconds into the video. That was identified by him as the moment when the comment was made. The applicant is then pointing towards something on the other side of the road. Where he is pointing there is a red car which he gave evidence was parked where they had intended to park. 
25. [25]
    At this critical point his son Olaf is still in the vehicle parked on the driveway with the driver’s side window up. The other grandson Dylan is still standing well inside his grandfather's property and has not moved but is looking at the direction of the other 2 on the driveway. He does not walk over to join them, and from the position he was in would not have been in any position to see the respondent or anyone with him whether they were on the respondent’s father's driveway or in the bushes on their property because he was standing well back, some several metres inside his grandfather’s front property line. 
26. [26]
    Dylan’s statement of evidence says that he heard his brother Blake say to someone “what did you say that for” and that the man who said the thing turned and went into the house in a hurry and none of them saw him again that day. 
27. [27]
    In the video however, Dylan does not move over to where the other 2 were standing and apparently saying something to someone, presumably the respondent, till much later. 
28. [28]
    Dylan also suggests that it was as his father Olaf got out of the car that he heard someone from the front of number 12 say the offensive words. That cannot be true. The videotape shows that his father Olaf did not get it out did not get out of the vehicle until the 27th second mark in the video which was 10 seconds after the comment has clearly been heard by   Blake and the applicant. I do not consider the evidence either Dylan or Olaf in terms of what I'm of what happened that day as reliable evidence.
29. [29]
    The other perplexing thing is that in his statement Blake says that it was “a man who went into the house in a hurry”, but the applicant says there were 3 people there, 2 younger persons, one of whom was the respondent and the respondent's father. 
30. [30]
    The respondent's father swore that his youngest son went into the house just before the comment was made, and wasn’t there for it. And said that this was in some way as a result of his perception that there was some confrontation occurring which had been initiated by the applicant. In my view there can be no doubt that all 3 were present on the adjacent property when the comment was made and that the younger son did not go inside and miss the comment that his brother made. There would be no reason for both the applicant and his grandson Blake to say that they there were 3 people there when in fact there were only 2. It cannot be a coincidence that there were in fact 3 people there earlier, even on the respondent’s version of events, until just before the second when the comment was made. The reason that it has been suggested that he was not there is perhaps to explain his absence from the witness box to testify about what occurred. He did not provide a statement saying he was not there and heard nothing. He was with the 2 others the next day when the 3 of them walked past the applicant’s house and the respondent mockingly waived for the camera.

31. [31]
    There are no other members of the public visible in the video and it is not suggested by anyone that there was any one in the vicinity apart from be apart from those that I have mentioned. That does not mean however that the comment was not made in a public place, or that the making of the statement was not a public act.id n.
32. [32]
    The volume and tone in which the remark was made is also important. In his statement of contentions, the applicant says that the statement was loudly yelled. In the witness box he gave a different version and suggested it was said loudly but not shouted or yelled. He acted out the words at the volume that he said they were made. They were clearly louder than normal conversational level but were certainly not shouted in a way that would suggest that other neighbours in the homes would have heard it. It was undoubtedly able to be heard some 5 to 10 meters away from the position of the respondent because that is where Blake was standing when he heard it and reacted. Also it was able to be heard by someone who was or had been on the footpath because that is where the applicant was approximately although there were in fact no other members of the public present or in the vicinity to hear it.
33. [33]
    The evidence is somewhat ambivalent as to whether the respondent and those with him were in front of their house in the bushes when the comment was made or slightly further onto their property on the sealed driveway. The video shows that position in which the applicant and his grandson are looking and pointing and speaking immediately following the incident appears to show them speaking to someone in close proximity in the bushes rather than some distance away on the driveway of number 12. The video shows about a minute and a 1/2 after the incident, the applicant and his 2 grandsons are on the footpath looking into the bushes area and then eventually walking along the footpath across the front boundary of the respondent’s father's house going down towards the driveway. That is consistent with the respondent having been seen at or near the boundary between the properties when he made his comment, not on his father’s driveway. 
34. [34]
    I accept the applicant’s evidence that the respondent was in the bushes with his father and half-brother when the comment was made although in my view it is not of particular significance where they were standing when the comment was made because in either case it was from a position whereby a person on the adjacent public footpath would have been able to hear it, were they present.
35. [35]
    There are very significant difficulties with the evidence given by the respondent. He seemed in his original defence and also in his evidence to want to justify his abusive language, which even on his own case was offensive and in public to a person who he did not know. He did so on the basis that he was accused the applicant of being provocative and aggressive towards him including by giving them the finger as he drove past a few minutes earlier, just before the incident. It is clear on the evidence that no such aggression occurred and the applicant and the applicant did not give anyone the finger. The respondent's father rejected the proposition that there was an event involving the finger, although he clearly thought his son had thought he’d possibly seen that. In my view he clearly took the view that his son had reacted inappropriately and they should leave the scene leave the scene quickly rather than be involved in a confrontation about what his son had done.
36. [36]
    The respondent said in his oral evidence that the applicant was standing on the boundary and being what he called “a pest”. He suggested that it was the applicant who was causing trouble and had said something to him which he did not know what it was it was, and that it was his belief that the applicant was trying to cause a problem.
37. [37]
    There is absolutely no evidence in the video or any other evidence that I accept, that the applicant was being aggressive or acting like a pest. Nor was he on the boundary between the properties when the statement has clearly being said. The respondent even claimed during his further evidence that he did not even know that the applicant was the neighbour of his father’s place. This was an example, of which there were many, of him giving self- supporting implausible evidence that he volunteered to support his case.
38. [38]
    A peculiarity of the respondent’s evidence is that he described the incident as one in which the applicant lost his temper and was waving his hands, gesticulating, yelling and screaming, and it was then that he and his father and brother went inside and locked the door.
39. [39]
    Yet the problem is that there is nothing in the video that shows that any such thing occurred and clearly that did not occur. His evidence lacks any veracity. 
40. [40]
    The respondent’s father claimed that after the incident, the applicant was asked by a male voice, presumably Blake “what did he say”, to which the applicant is said to have replied: “he called me a fucking German cunt”. To which the response he said he heard was “what did he say that for”.  Blake did testify that he did say “what did you say that for?”
41. [41]
    What is remarkable about this evidence is that the respondent himself does not mention it in his statement. Secondly it is clear evidence from a witness called by the respondent, that something involving a description as someone as a “fucking German cunt” was specifically mentioned that day by the Applicant. Those words precisely corresponded with what the applicant says the respondent said to him. 
42. [42]
    Ironically the applicant himself says that he did not use those words to describe what was said to him at the time of the incident, although those were the words that were said to him. It would be remarkable coincidence that that the respondent's father who was present heard the applicant saying contemporarily with the event that he had been called a “fucking German cunt”, if in fact that is not what he had in fact been called. It may be that the applicant is mistaken about whether he repeated those words when asked by his grandson what he had said.
43. [43]
    What is telling about this is that the neither the respondent or his father at the time disagreed that those words had been used, nor responded with any words to the effect that, no what was said was something else.
44. [44]
    But critically the version given by the respondent, which has him calling him a calling him a “vermin cunt”, makes no sense whatsoever in context. Nothing of any kind had occurred between them which would suggest that at any level the applicant could or should be described as “vermin”. That itself is very strong and hurtful language. There was no sensible reason whatsoever for the respondent to want to insult him by using that word, whereas the racial slur is a plausible explanation for the respondent’s misconceived belief that the applicant had given them the finger as they had driven past, especially if he was known to be of German origin, as members of that household clearly did.
45. [45]
    Moreover, if the events had occurred as the respondent contends, it is unlikely, in my view, that the 3 of them would have essentially removed themselves from the scene as quickly as possible without saying anything at all to the applicant.
46. [46]
    Yet another peculiar feature of the respondent’s evidence is that he describes the applicant as having become uncontrollably agitated. He claims to have been in some way in fear as a result of the of the applicant’s conduct. Videotape footage from the next day showed the respondent passing the applicant's house, and can be seen with a big smile and waving at the camera in what could be described as a mocking way; hardly the conduct of a person who is in some way fearful of the conduct of the applicant. Yet in relation to those 2 incidents the next day, he claimed to have no recollection of waving or smiling despite the objective evidence in the video showing it. He had no explanation for it.
47. [47]
    The applicant has a history of working in the construction industry and says that he has commonly encountered bad language but not racial language on building sites, and it was this racist remark that particularly hurt him. I accept that evidence. I also accept that if all he had been called was a non-racist abusive thing he would not have had the reaction that he did. There is evidence of an immediate response that is consistent with something happening which he found unacceptable.
48. [48]
    The respondent’s father gave evidence that sought to explain away his son's conduct, although the respondent chose to apologise for his behaviour while in the witness box.
49. [49]
    Despite these events having occurred in July 2021 the respondent’s father only put in a statement in February this year in which he identified that his son suffered from PTSD, anxiety, functional neurological disorder and myocardia. He went so far as to obtain medical report from a GP that suggested it was the respondent who had had disputes with his "dad neighbours" (sic) and as a result of his anxiety flaring up, he was having panic attacks, palpitations and chest discomfort, and needed to visit the local emergency department. The way the respondent behaved that day was probably explained by the respondent’s PTSD. Both he and his father all but said as much in their oral evidence. 
50. [50]
    A complaint was made to the QHRC on the 13th of August 2021 in which essentially the allegations which are now before me were raised. The respondent did not dispute them in any material which was provided to the Commission. He did not put in any material to dispute the allegations as to what he had said until he filed his statement of responsive contentions more than a year later on 8 September 2022. On his own case he used extremely strong and vulgar language toward the Applicant he did not take any steps to seek to resolve the matter or apologize for his conduct until he was in the witness stand at the hearing itself. Yet even then he continued to blame the applicant for what had happened.

Vilification on grounds of race

51. [51]
    Section 124A of the Act provides:-

124A Vilification on grounds of race, religion, sexuality or gender identity unlawful 

1. (1)
   A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
2. (2)
   Subsection (1) does not make unlawful—

   1. the publication of a fair report of a public act mentioned in subsection (1); or
   2. the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or
   3. 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 public discussion or debate about, and expositions of, any act or matter.”

52. [52]
    For there to be a contravention of s. 124A(1) of the Act that there must be a “public act”. That expression is defined in s. 4A of the Act as follows:-

    1. (1)
       A public act includes—

       1. 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
       2. any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
    2. (2)
       Despite anything in subsection (1), a public act does not include the distribution or dissemination of any matter by a person to the public if the person does not know, and could not reasonably be expected to know, the content of the matter.”
53. [53]
    This definition in s. 124A is not apparently intended to be exhaustive. It is one which is inclusive of the matters mentioned in s. 4A. But it cannot, in my view, be suggested here that the definition, insofar as it refers to communication by speaking, means anything other than that it must be a form of speaking which is by way of “communication to the public”.

Were the comments capable of inciting hatred towards, serious contempt for, or severe ridicule of, a person 

54. [54]
    Whether the use of some racially based expression in a particular context suggests that it is capable of being more than an insult or is likely to incite hatred, severe ridicule or serious contempt requires it to be considered in the precise factual matrix in which it is spoken. In the context of homosexual vilification in Burns v Dye [2002] NSW ADT 32.  It was said that:

    61. While we accept that over time certain terms of abuse take on a more general connotation we find that the words ‘poofter’ and ‘faggot’ retain a specific meaning: they are derisory terms used for homosexual males. (In certain circumstances, such as when used by homosexual male friends between themselves, they may not be used in an insulting way but it is clear that they were insulting in the circumstances of this case.)
    62. It does not follow automatically that verbal abuse directed at a homosexual person or persons that includes words understood to be insulting of homosexuals, is capable of inciting the requisite ill-feeling required to establish a complaint of homosexual vilification. The circumstances in which the abuse occurred are critical. Relevant factors will include the context in which the abuse occurred, the tone of voice used by the alleged vilifier and the observable relationship between the vilifier and his/her victim. 
    63. To establish capacity to incite, it is not enough in our view to merely prove that the offending communication identified or ‘outed’ Mr Burns as homosexual. Nor is it sufficient to prove that the victim was deeply wounded or concerned for their privacy, or indeed safety. It is also insufficient to establish that the conduct simply conveyed hatred towards a person, or the expression of serious contempt or severe ridicule: (Wagga Wagga Aboriginal Action Group v Eldridge).
    64. Mr Burns must establish, on balance, that all or part of Mr Dye’s conduct was capable of urging on, stimulating, or prompting to action the ordinary reasonable person to the requisite feelings of ill will towards Mr Burns. How would such person react on hearing Mr Dye’s attack on Mr Burns? In our view a section of the community would have dismissed this conduct as the rantings of a drunken, possibly mentally-ill individual and, if anything, the attack may have engendered feelings of hatred towards, serious contempt for, or severe ridicule of Mr Dye himself.”
55. [55]
    In my view the comments made by the respondent were capable of urging on, stimulating, or prompting to action the ordinary reasonable person to the requisite feelings of ill will towards the applicant, although those who heard it, the respondent’s father and step-brother, and the applicant, his son and 2 grandsons are unlikely themselves to have had that reaction.
56. [56]
    The comments are insulting, no doubt, but they are insulting and pejorative in relation to his being thought to be German, as he once was before becoming an Australian citizen. In my view the statement which the applicant contends were made to him in making reference to the fact that he was in some way foreign to Australia, to his being “fucking German cunt” did in law amount to racial vilification. 

Was the statement one which incites hatred towards, serious contempt for, or severe ridicule of a person to ‘the public’

57. [57]
    Under s. 124A the public act of course must be one which incites hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of race. That element is not shown merely by showing that a person has been subjected to personal insults or taunts which relate to one’s race or country of origin. Moreover, calling a person by names such as “dog” or “terrorist”, even if said to a person because they were in some way foreign, does not amount to vilification. 
58. [58]
    In Deen v Lamb [2001] QADT 20 the then President of the Anti-discrimination Tribunal said in the context of a racial vilification case:

“The question arises how one determines whether a publication has the character referred to in s. 124A. The test is plainly an objective one rather than a subjective one. In the law of defamation the test adopted has been to assume a reader who is of fair average intelligence, and who is neither perverse nor morbid, nor of a suspicious mind, nor one who is avid of scandal: see Lewis v. Daily Telegraph (1964) AC 234 at 259. This test has been adopted in the context of racial vilification legislation: see Kazak v. John Fairfax (2000) NSWADT 77 at paras. 31-34.

I agree that that is the appropriate test, but would add that it is also necessary to exclude on the one hand those persons who are either over-sensitive to criticism of their race, religion or culture, and on the other hand, those who are too thickskinned to appreciate the nature of an act as one which has the relevant tendency to incite. cf. Lewis v. Daily Telegraph at 259.”

59. [59]
    In Wilson & McCollum v Lawson & Anor [2008] QADT 27 I held, in relation to this issue in the context of a case of vilification of the grounds of sexuality:

“The requirement that there be an incitement to another to hate goes hand in hand with the requirement that there be communication to the public or in other respects that there be a public act. In the absence of those elements, the abuse of a person on the grounds of their sexuality, including showing hatred or ridicule of the person on the grounds of homosexuality, does not amount to vilification. It is the propensity to incite hatred in other members of the public, by the manifestation of the hatred of the speaker that is intrinsic to the act of vilification. In my view therefore, a private conversation between one person and another which cannot be, nor is overheard by any other person, does not have the essential element of it being a public act or one which is capable of inciting hatred towards the other person to that conversation. If the conduct in question amounts to the making of oral statements, then for the act to be a public act it must be a form of communication “to the public” within the meaning of s. 4A of the Act. In my opinion, where the conduct was of that kind, the observability of the act in the sense that the public could see that there was an incident occurring, but not necessarily hear what was being said, would not be sufficient to demonstrate that it was a public act. So, for example, in this case, the fact that neighbours could see Mrs Lawson talking to either of the complainants at the time she was referring to them as “faggots” would not by itself establish that the act was a public one. It would be necessary that her remarks be audible to others from where they were.”

60. [60]
    At paragraphs [53] to [64] of the decision in Wilson & McCollum v Lawson & Anor I reviewed the case law on this subject and said:

    53. There is little assistance to be found in the case law concerning what is required to establish communication to the public in circumstances in which personal statements have been made by the offender directly to the victim of the alleged vilification. 
    54. An internet website containing material which vilified on the grounds of homosexuality was found to be a ‘public act’ within the meaning of the equivalent provision of the Anti-Discrimination Act 1977 (NSW), Division 4. Similarly, a broadcast on a public radio station has been held to be a ‘public act’. A complaint of HIV and homosexual vilification was upheld in R v D & E Marinkovic. In that case a three member panel of the Equal Opportunity Tribunal of New South Wales was called upon to consider a claim of vilification concerning comments made by a married couple who lived in the same block of units directly above the complainant’s unit. Various expressions were used over a period of about a year, including describing him as a ‘poofter’, ‘gay faggot’, ‘I don’t want faggots living nearby baby’, ‘Aids ridden cunt’. The evidence is that these comments were variously made and yelled from the balcony of the unit above. On another occasion the complainant came home to find a letter which had been written to the respondents by a community justice centre attached to his front door with sticky tape which had been annotated by the respondents with comments such as ‘poofy bastard’, ‘can’t you read English, faggot’, and in two places where his name was mentioned in the letter the respondents had crossed it out and written the word ‘faggot’. The Tribunal found that the door on which the letter was stuck was in a corridor that was used by other residents in the building and by members of the public. The Tribunal found, although without having conducted any particular analysis of the facts, that the statements and conduct of the respondents were public acts. There was no direct evidence that any other resident saw the letter posted to the door but clearly the circumstances were that any person who passed that way would have been able to have observed it. The day after the offending letter was posted on the door, a copy had been slid by the respondents under the complainant’s door. One could easily infer in those circumstances that the posting of it on the door occurred with the intent that other neighbours read it. On at least one of the occasions when abuse was yelled over the balcony, the complainant was with a friend who could hear it. 

55. In Peters v Constance, [2005] QADT 9 an employee of a debt collection agency that went to the house of a homosexual man who, when he refused to answer the door called out loudly from the front of the home that he was a paedophile. The Tribunal held that whilst there was no evidence that anyone other than the complainant had heard the accusation, there was evidence which was accepted that the neighbours in the vicinity were likely to have heard what went on outside the front of the house that morning and that this was sufficient for the act to be public within the meaning of s. 124A of the Act.
56. In Menzies & Ors v Owen, [2008] QADT 20. one of the complaints was that the respondent drove a car the rear bumper of which affixed a sticker which read, ‘Gay rights? Under God’s law the only ‘rights’ gays have is the right to die. Lev.20:13’
57. A Member of this Tribunal held that ‘the vehicle was driven to the Council chambers on 23 August 2005 and parked outside the chambers. It was observable by members of the public when it was being driven and when it was left outside the chambers. The display of the bumper sticker involved a form of communication to the public and it was also the display of a sign that was observable by the public’.
58. Another incident in that case concerned the respondent there, who was a local councillor, providing a report to the Cooloola Shire Council. The report was published by the Council in the agenda for its meeting. The content of the report has held to have ‘incited hatred for and severe contempt of homosexuals because they engage in sexual acts with members of the same sex and because Mr Owen ascribes paedophilic tendencies towards them’. It was held that the incitement was on the basis of the sexuality of homosexuals. The respondent had argued that the provision of the report to the chief executive officer was a private act and the decision to publish the report in the agenda was one made by the Council, for which he was not responsible.
59. The Member found at paragraphs 26-27. that the respondent:-

... wrote the report and handed it to the chief executive officer of the Council. The report was said to be ‘For Council’s consideration’. The natural and probable consequence was that the chief executive officer would cause the report to be published in the agenda. That was what in fact happened. I also find that Mr Owen intended that consequence. The publication of the report in the agenda was a form of communication to the public. In these circumstances, I am satisfied that Mr Owen engaged in a public act by writing and providing the report to the chief executive officer.’

61. [61]
    Applying these principles, it is clear that the statement used in the present case was one which incites hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of race.
62. [62]
    Was the making of the statement a public act within the meaning of Section 124A?  A statement to ‘the public’ has been held to include the possibility of a statement being overheard by or visible to passers-by, even if the act took place on private property. R v Ashley [1991] NTSC 19; (1991) 77 NTR 27 at 30; Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268.
63. [63]
    In Anderson v Thompson, [2001] NSWADT 11. the New South Wales Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public because although there were no eyewitnesses there was evidence that the words were spoken with such force they could be overheard by other residents.
64. [64]
    In Campbell v Kirstenfeldt [2008] FMCA 1356 a complainant alleged offensive behaviour based on race or colour, which is unlawful conduct under s. 18C of the Racial Discrimination Act 1975 (Cth) (‘the RD Act’). The allegation was to the effect that there were a number of comments passed over a neighbourhood fence to an aboriginal person who was standing outside watering and gardening while her son and some of his friends (some of whom were aboriginal and some of whom were not) were playing cricket to the effect of ‘you nigger, coon black bastard, go back where you belong in the scrub’. Also, in front of another neighbour, calling her ‘nigger, coon’.
65. [65]
    The alleged conduct was held to be unlawful under s. 18C of the RD Act, which requires the conduct to be an act performed ‘otherwise than in private’. Section 18C provided relevantly that:

1. (2)
   For the purposes of subsection (1), an act is taken not to be done in private if it: 

1. (a)
   causes words, sounds, images or writing to be communicated to the public; or 

2. (b)
   is done in a public place; or 
3. (c)
   is done in the sight or hearing of people who are in a public place.

1. (3)
   In this section: public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.’

66. [66]
    In Campbell v Kirstenfeldt [2008] FMCA 1356 the Court held as follows:

‘In relation to each incident the Court is satisfied that the act was one performed otherwise than in private. This is because in relation to each of the incidents they have occurred either:

a. over a neighbourhood fence; or being shouted, or at least capable of being heard, between one property and another; or

b.  being capable of being heard in public being said on one property to people either on a public footpath or in a public reserve across the road from the house; or

c.  given that each of the houses faces directly onto a footpath and road that the acts complained of (being words spoken) in each case would, the Court finds, have been capable of being heard in a public place, being either the footpath, or the road or the park reserve; and 

d.  were therefore not made in private, and in any event, were not private exchanges, but exchanges heard by the complainant, and members of her family on some occasions, persons who are not members of her family on other occasions (including the neighbour who was with the respondent on at least two occasions), or generally capable of being heard in the neighbourhood.’

Taken as a whole, it is clear to me that there has been a regular pattern of verbal abuse and insult which has occurred by both of the respondents and which is directly referrable to the complainants’ homosexuality. Whilst it may well be true that the abuse was personal abuse, designed to be hurtful, and to inflict damage as part of an ongoing neighbourhood dispute where abuse may well have passed from all sides, it does not mean that the conduct complained of did not amount to vilification if it amounted to a communication to the public.”

67. [67]
    An appeal from the decision in Wilson & McCollum was dismissed by Mullins J in the Supreme Court of Queensland on 9 March 2009, although that decision was not based on a merits review but failed because the appeal was commenced out of time.
68. [68]
    I have recited above what the public elements of the statement were. The act was one performed otherwise than in private. This is because it occurred across a neighbourhood boundary and was capable of being heard, and was heard between one property and another. It was capable of being heard in public being said on one property to people on a public footpath. Given the close proximity of the Applicant and the respondent to the footpath and road the words spoken would have been capable of being heard in a public place, being either the footpath, or the road. The statement was therefore not made in private, and in any event, was not a private exchange, but exchanges heard by the applicant and members of his family at the time.

Compensation

69. [69]
    The applicant swore and I accept that the racially vilifying words were highly insulting to him and caused him to be hurt and humiliated, particularly in front of his son and grandsons who had witnessed him being treated in this manner. He felt intimidated and fearful for his safety and says he suffered anxiety and sleeplessness and an inability to peacefully enjoy his home in front yard area. 
70. [70]
    The mocking conduct on the day subsequent to these events and the fact that the respondent’s father and half-brother were also involved in walking down the street when those things occurred would no doubt have made him feel even less secure and anxious.
71. [71]
    There is however no medical evidence to suggest that he has suffered any permanent or significant anxiety condition or sleeplessness that has been on this that has been of any particular seriousness.
72. [72]
    Neither party addressed me on the amount or range of compensation that ought be ordered.
73. [73]
    Fifteen years ago, in Wilson & McCollum v Lawson & Anor [2008] QADT 27, I ordered compensation of $4950 for a much more serious examples of such conduct, over a long period. 
74. [74]
    In Singh v Shafston Training One Pty Ltd and Anor [2013] QCAT 8, Member Howard awarded an amount of $3,500 for vilification where the applicant Mr Singh was held to have been subjected by a chef course trainer, on many occasions to statements to the effect of ‘Fuck off, it is not your India, fucking Indian’, and ‘you fucking Indians’, ‘it is not your country go back to your country’. They called him ‘Rudi’, which was insulting and means ‘all of the rubbish together’ in Punjabi.
75. [75]
    In my view an appropriate award for a one-off remark of the present kind is $3,300 inclusive of interest.
76. [76]
    I therefore order that the respondent pay to the applicant the sum of $3,300.00 by way of compensation for racial vilification. The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.