Wilson v Stevens[2024] QCAT 471

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

BACKGROUND

1. [1]
   On 15 November 2022, the Tribunal received a referral of this matter pursuant to s 166 of the Anti-Discrimination Act 1991 (Qld) (‘ADA’).
2. [2]
   Mr Wilson and Ms Stevens are neighbours in a set of 12 public housing units. The parties have been in conflict for over five years. Mr Wilson alleges that he has been subjected to harassment and vilification which has escalated since Ms Stevens became aware that he was in a same sex relationship in early 2022.
3. [3]
   Ms Stevens resides with her son and her dog in a unit above Mr Wilson’s unit. Her boyfriend visits regularly.
4. [4]
   Mr Wilson is a bisexual Māori man who has impaired cognitive function due to a stroke and leukodystrophy. He is diagnosed with a major depressive disorder arising out of his brain injuries. He resides with his dog in the unit complex. His nephew has provided an affidavit referring to witnessing an incident while standing in “our kitchen” and “our porch”. Mr Wilson does not mention in his material that he resides with his nephew, and it is not clear to me whether his nephew resides with Mr Wilson permanently.  
5. [5]
   Mr Wilson claims he has been sexually harassed^[1] and vilified on the basis of his race and sexuality (bisexuality).^[2] Mr Wilson claims that Ms Stevens has used homophobic profanities directed towards him, which have been heard by Ms Stevens’ son, boyfriend, and other neighbours.
6. [6]
   Mr Wilson says that Ms Stevens has called him, among other things, ‘faggot, poofter, gaybo’, and that Ms Stevens’ behaviour has had ‘a serious effect’ on his mental health. Mr Wilson states:

I have been in a serious state of depression. It is hard enough being gay…but having someone ridicule you about it in public is very hard to deal with. Also I live in a unit which is one of twelve in our living complex. So I feel unsafe now.

7. [7]
   Mr Wilson has provided his description of the alleged incidents:

   1. 9:00am on 31 May 2022 – Ms Stevens sprayed Mr Wilson and his dog with an unknown chemical which caused physical harm and discomfort. Mr Wilson was struggling to breathe and asked Ms Stevens what the chemical was. Ms Stevens laughed and replied, ‘penis rub’. Mr Wilson visited a GP and reported the incident to the Department of Housing and to the police. This incident followed allegations made by Ms Stevens’ partner the day before that Mr Wilson’s dog had attacked Ms Stevens’ dog.
   2. 9:00pm on 31 May 2022 – Mr Wilson heard a sound as if his front window had been smashed. He walked out the front and was told by a neighbour that Ms Stevens had slammed the front gate. Ms Stevens was on her balcony and began to verbally abuse Mr Wilson due to the complaints Mr Wilson had lodged earlier that day. The abuse contained ‘very explicit homophobic profanities’, and Ms Stevens called Mr Wilson a paedophile.
   3. 2:00am on 1 June 2022 – Mr Wilson was woken by the front gate slamming. When he went to the front of the property, he saw Ms Stevens on her balcony saying that he must keep his gate closed at all times, and used ‘very explicit homophobic profanities, verbal abuse and financial threats’.
   4. 11:00am on 1 June 2022 – Mr Wilson returned home to be met by Ms Stevens wielding an item that looked like a softball bat which she waved at Mr Wilson and his dog aggressively while verbally abusing them both.
   5. 12:00pm on 1 June 2022 – Mr Wilson was in his front yard when he saw Ms Stevens, accompanied by her son and partner, standing at his front gate. Ms Stevens yelled that he needed to keep his front gate shut and called Mr Wilson a ‘fucking faggot’ and ‘poofter’.
   6. 6:30am on 2 June 2022 – Ms Stevens was ‘doing something suspicious’ at Mr Wilson’s front door. When Mr Wilson approached her, she began to flee. Ms Stevens refused to say what she was doing at the door, instead using homophobic terms she had used before, and calling Mr Wilson a ‘black dog’. Later that morning Mr Wilson noticed that someone had put superglue on his front gate so that the keyhole was not usable.
8. [8]
   A Peace and Good Behaviour Order has been issued, and Ms Stevens was charged with assault. Mr Wilson believes that Ms Stevens was sentenced to 12 months probation.
9. [9]
   The police advised Mr Wilson to install security cameras at his unit. Mr Wilson provided a video recording to the Tribunal clearly showing that on 13 July 2022, Ms Stevens spat down over her balcony in his direction as he was raking leaves in the area below. Mr Wilson says in his statement that the incident was recorded on his mobile telephone.
10. [10]
    On 12 August 2022, Ms Stevens sent an email to the Human Rights Commission stating that the videos were ‘not real’ and that Mr Wilson ‘is a manipulating type of person who often brags’. She denies spitting on Mr Wilson.
11. [11]
    On 8 November 2022, Ms Stevens’ son and partner punched the front gate several time threatening that they were going to kill Mr Wilson.
12. [12]
    On 4 April 2024, Mr Wilson lodged in the Tribunal an application for an interim order (dealt with by Directions dated 8 April 2024), stating that Ms Stevens’ behaviour is continuing and escalating, and that Ms Stevens has now involved her family and social circle and that he fears for his life and safety. Mr Wilson claims to have received multiple death threats.
13. [13]
    Mr Wilson says he has applied for a transfer from the unit and has complained to the Department of Housing about Ms Stevens’ behaviour.
14. [14]
    Mr Wilson has been diagnosed with depression since 2019 and has been seeing a psychiatrist since September 2018. He has also seen a psychologist.
15. [15]
    Mr Wilson relies on s 124A of the Act which provided, at the relevant time:

Vilification on grounds of race, religion, sexuality, sex characteristics or gender identity unlawful

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, sex characteristics or gender identity of the person or members of the group.

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.

16. [16]
    A public act is defined to include any form of communication to the public, including speaking, and any conduct observable by the public including actions and gestures.^[3]
17. [17]
    I am satisfied that Ms Stevens has engaged in public acts. Ms Stevens’ words have been heard or have been capable of being heard by her son and boyfriend, other neighbours, and other members of the public.
18. [18]
    Ms Stevens has not engaged in this process except to email the Human Rights Commission claiming that Mr Wilson’s videos were not real, that Mr Wilson does not do any gardening as he killed the grass when he first moved in, and that he is a manipulating person. She points out that there is no DNA evidence to prove that she spat on Mr Wilson. Apart from that email, Mr Wilson’s evidence is uncontradicted and is supported by the video. I accept the evidence in its entirety.
19. [19]
    Ms Stevens has used words like ‘fucking faggot’ ‘black dog’ and ‘poofter’.  I am satisfied that Ms Stevens has incited hatred towards, serious contempt for, or severe ridicule of Mr Wilson on the ground of his race and sexuality.
20. [20]
    Ms Stevens has therefore vilified Mr Wilson in breach of s 124A of the Act.
21. [21]
    Mr Wilson further contends that Ms Stevens’ behaviour amounted to sexual harassment in breach of s 118 and s 119 of the Anti-Discrimination Act 1991 (Qld) because:

    1. using homophobic slurs aggressively and in the context of a neighbourhood dispute are remarks with a sexual connotation which were made with the intention of offending, humiliating, or intimidating him; and/or a reasonable person would have anticipated the possibility that Mr Wilson, as a member of the LGBTIQ+ community, would be offended, humiliated and or intimidated by the remarks.^[4]
    2. Ms Stevens spraying a chemical on Mr Wilson and his dog and referring to it as ‘penis rub’ in the context of a neighbourhood dispute and that Mr Wilson is bisexual, constituted unwelcome conduct of a sexual nature and/or the use of a remark with a sexual connotation,^[5] was done with the intention of offending, humiliating or intimidating Mr Wilson and/or a reasonable person would have anticipated the possibility that Mr Wilson, as a member of the LGBTIQ+ community, would be offended, humiliated and or intimidated by the remarks.^[6]
22. [22]
    I am not satisfied that it is necessary to determine whether Ms Stevens has breached s 118 of the Act. I have already found that Ms Stevens’ behaviour is in breach of the Act and further breaches in relation to the same behaviour will not affect the remedy. 
23. [23]
    Mr Wilson claims to have been impacted by Ms Stevens’s conduct because he:

    1. is not able to peacefully enjoy his home and front yard without fear of unwelcome conduct or speech with sexual connotations;
    2. is concerned for his safety;
    3. has experienced distress by being subjected to ongoing harassment; and
    4. has experienced a deterioration in his mental health and has made numerous calls to mental health support services.
24. [24]
    Mr Wilson refers to a claim under the Victim Assist scheme in Queensland. There is no evidence as to whether that claim was successful and what, if any, amount has been received by Mr Wilson.
25. [25]
    In terms of a remedy, Mr Wilson’s solicitor advises that he seeks:

    1. an order requiring Ms Stevens not to engage in any further behaviour in contravention of the Act;^[7]
    2. an order that Ms Stevens pay to Mr Wilson compensation for the damage caused by the contravention.^[8] In particular, $213.30 for the cost of the Peace and Good Behaviour Order applications and $290.25 for installation of security cameras. Mr Wilson has produced receipts for cameras in the amount of $193.50 and says that he purchased a third one which took the total cost to $290.25;
    3. an amount the Tribunal considers appropriate for the hurt, shame, distress, fear and mental suffering experienced by Mr Wilson.  It is noted that Mr Wilson had previously requested compensation for hurt and humiliation of around $10,000, based on similar previous cases;^[9] and
    4. an order requiring Ms Stevens to make a private written apology to Mr Wilson.^[10]

DECISION OF THE TRIBUNAL

26. [26]
    Ms Stevens has engaged in behaviour in breach of the Anti-Discrimination Act 1991. As a result, she is liable to pay damages to Mr Wilson.
27. [27]
    There is insufficient evidence of out-of-pocket expenses incurred by Mr Wilson. It is unclear whether he has had to pay for any psychological or psychiatric treatment. There is no evidence as to the outcome of his Victims Assist application and whether the cost of the cameras or the Peace and Good Behaviour Orders has been covered. I make no order in relation to the out-of-pocket expenses claimed.
28. [28]
    I will consider a claim in relation to the distress, hurt and humiliation suffered by Mr Wilson. Mr Wilson has not provided evidence to establish a serious psychological injury resultant upon Ms Stevens’ behaviour. The medical evidence establishes a diagnosis of major depressive disorder arising out of Mr Wilson’s preexisting medical conditions. I do accept, however, that Ms Stevens’ behaviour has had a significant adverse effect and has caused Mr Wilson to be fearful and distressed.
29. [29]
    Ms Stevens’ behaviour is inexcusable. Her threatening behaviour and language is offensive to community standards and particularly hurtful to Mr Wilson. He has been subjected to ongoing and sustained abuse in his own home. It is unfortunate for Mr Wilson that he had been unable to find alternative accommodation through the relevant public housing authorities, at least up until the time the material was filed in the Tribunal.
30. [30]
    I have had regard to the recently published decision of Zhai v Kullack [2024] QCAT 56 (‘Zhai’), a case involving a series of homophobic and racist attacks by one neighbour against another. I adopt the Tribunal’s reasoning in relation to taking a global approach to the assessment of compensation payable. I find that, as in the Zhai case, the effects of Ms Stevens’ behaviour have been significant, and I award Mr Wilson the amount of $10,500 in respect of all breaches.
31. [31]
    I note that Mr Wilson seeks a written apology from Ms Stevens. I decline to make that Order. Based on Ms Stevens’ lack of involvement in this proceeding to date, it seems unlikely that she would comply, and enforcing such an Order would be problematic. There is no evidence that Ms Stevens has sufficient insight to make any apology meaningful or useful.