Zhai v Kullack[2024] QCAT 56

REASONS FOR DECISION

1. [1]
   Chunpeng Zhai's complaints against Esther Kullack were referred to the Tribunal by the Human Rights Commission on 6 July 2020 as application ADL038-20.
2. [2]
   The matter was heard in the absence of Ms Kullack on 25 June 2021 and an ex tempore decision favourable to Mr Zhai was delivered on that date.
3. [3]
   Ms Kullack applied to the Tribunal for a reopening and on 15 October 2021 her application was granted on the basis that she had a reasonable excuse for not attending.
4. [4]
   The reopened matter was heard on 18 May 2022. Mr Zhai was self-represented, as was Ms Kullack, with the assistance of her daughter, Amirah Kullack.
5. [5]
   Mr Zhai alleges that he has been vilified by Ms Kullack by words and gestures after a series of racial and homophobic comments, including the following:

3. (a)
   13 February 2020 at 8:20AM (the 13 February incident)

3. Ms Kullack said to Mr Zhai in a raised voice “chink. Go back to China you Coronavirus carrier. Why you are so stupid to park your car here? There is three quarter space there.”

3. Ms Kullack then threw 2 grapefruit at him and raised her hands to stretch the skin around her eyes to make them appear slanted and directed a forearm jerk gesture towards him.

3. (b)
   27 February 2020 at 1:30PM (the 27 February incident)

3. Ms Kullack called Mr Zhai in a raised voice a “chink” and repeated the slanted eye gesture.

3. (c)
   4 March 2020 at 10:35AM (the 4 March incident)

3. Ms Kullack shouted at Mr Zhai “you fucking chink”, spat at him, then added “that's what you are a piece of shit.”

3. (d)
   7 March 2020 at 3:00PM (the 7 March incident)

3. Ms Kullack spat at Mr Zhai and his partner Victor Rodriguez and yelled “you fucking gay. You will die alone. No one will fuck you. You will never have children. I have a daughter.”

3. (e)
   8 April 2020 (8 April incident)

3. Ms Kullack shouted at Mr Zhai while pulling her eyelids to appear slanted “I love chinks. I wish I could be like that.” 

3. (f)
   13 April 2020 (13 April incident)

3. Ms Kullack standing on her balcony, shouted "you look so great. Look at your face.” She then grunted like a monkey.

3. (g)
   Unknown date (the unknown date incident)

3. Ms Kullack, standing on her balcony, shouted “go away from my land” and “are you from Japan, killing people. You are a nasty little man.”

6. [6]
   I assessed Mr Zhai as a credible witness. His evidence is largely corroborated. The 4 March incident, 8 April incident, 13 April incident, and unknown date incident were all captured by him on his phone camera in whole or in part. Those videos were filed in the tribunal on USBs.
7. [7]
   The videos were played in the presence of Ms Kullack and her daughter during the hearing. Ms Kullack did not deny that she was the person appearing in the videos nor did she suggest that they were not an accurate depiction of events. They corroborate Mr Zhai's evidence. The 7 March incident was corroborated by the evidence of Victor Rodriguez, Mr Zhai’s partner. I found Mr Rodriguez to be a credible witness.
8. [8]
   The 13 February incident, the 27 February incident and the 7 March incident are corroborated by the affidavit evidence of Aisake Tavutavu, a neighbour at the time.
9. [9]
   Ms Kullack in oral evidence denied that she had called Mr Zhai a chink. Rather, she said she had called him a “cheese”. She said at the time she was not aware of the word chink or its meaning.
10. [10]
    I prefer Mr Zhai’s version of events. The slanted eye gesture which on occasion accompanied her words is more consistent with “chink” than “cheese”. A careful viewing of the videos of the 4 March incident and 8 April incident show Ms Kullack very clearly saying “chink” and not “cheese”.
11. [11]
    Evidence was filed by both sides offering various opinions on the cause of hostilities between the parties.
12. [12]
    Charlie Hall provided two statements of evidence to the effect that Mr Zhai had provoked Ms Kullack deliberately including by placing rubbish near the boundary of her property and vandalising her home. He speculated that Mr Zhai did not reside at the premises he claimed.
13. [13]
    Harrison Comino provided two statements along similar lines. He stated that as an openly gay man of Italian/Australian heritage, he has suffered no racial or homophobic backlash from Ms Kullack.
14. [14]
    Diana Hua Yang, like Mr Hall and Mr Comino, attested to her good character.
15. [15]
    Denice Schelebach, Ms Kullack’s neighbour for 24 years, provided an affidavit listing Ms Kullack’s bad behaviour towards her neighbours over a long period of time. Police have been called on dozens of occasions, she said, and she has maintained a peace and good behaviour order against Ms Kullack since 2017.
16. [16]
    Camilla Wyeth, a neighbour for 20 years, provided an affidavit in similar terms.
17. [17]
    Mr Zhai also took out a peace and good behaviour order in March 2020.
18. [18]
    It is not the Tribunal's function to apportion blame between the parties or to referee an ongoing dispute. Even if I accept that Mr Zhai is the instigator (and I do not) that does not excuse racial or homophobic vilification.

Legislation

19. [19]
    Section 124A (1) of the Anti-Discrimination Act 1991 (Qld) (‘the Act’) provides:

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 their race, religion, sexuality, or gender identity of the personal members of the group.

20. [20]
    Section 4A (1) relevantly provides:

A public act includes-

1. any form of communication to the public, including by speaking, …
2. any conduct that is observable by the public including actions [and] gestures…

Are These Public Acts

21. [21]
    I find that each of the incidents set out in paragraph five of these reasons is a public act for the purposes of the act.
22. [22]
    The 13 February incident and the 27 February incident were observed and heard by Aisake Tavutavu. The 7 March incident was observed and heard by Victor Rodriguez and Aisake Tavutavu.
23. [23]
    All the remaining incidents occurred in outside areas including Ms Kullack’s balcony and could be heard by passers-by or by the immediate neighbours. Her gestures, including the slanted eye gesture, was observable by people in the street or neighbours.

Was Mr Zhai Vilified

24. [24]
    I have accepted Mr Zhai’s evidence in relation to all incidents. In the 13 February incident, 22 February incident, 4 March incident, 8 April incident, and unknown date incident Ms Kullack uses the word “chink” on the bas.is of Mr Zhai's Chinese heritage. Her gestures, including spitting at Mr Zhai and pulling her eyelids to make her eyes appear slanted, similarly reference his ethnicity.
25. [25]
    The words spoken during the 13 April incident are not so clear unless considered in the context of the other incidents, but the gesture of the monkey grunts is clearly racially disparaging.
26. [26]
    The 7 March incident is clearly related to Mr Zhai's sexuality.
27. [27]
    Mr Zhai does not need to prove that the words and gestures actually incited hatred, serious contempt or severe ridicule, but it must be clear over the fact that they were capable of it.^[1] I am so satisfied.
28. [28]
    I am satisfied that the words and gestures in all incidents are capable of inciting severe ridicule of Mr Zhai.

Remedy

29. [29]
    It is well recognised that an award of damages for discrimination, or in this case vilification, are based on the same principles as any other tort. In assessing an award for injury to feelings the decision of May LJ in Alexander v Home Office [1988] 2 All ER 118 at 122 is often cited:

As with any other awards of damages, the objective of an award for lawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, the damage is referable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the act gives effect. On the other hand, just because it is impossible to assess the monetary value of endued feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.

30. [30]
    Mr Zhai's evidence is that as a result of the incidents he has suffered an exacerbation of anxiety, moodiness, insomnia, and depression. He says his work, study, and social functioning have been adversely affected.
31. [31]
    Mr Zhai filed in the Tribunal a medical certificate, mental health plan and diagnosis, and a short letter from Doctor Vivian Chan dated 22 October 2020. He has participated in six sessions with the psychologist and has been prescribed medication.
32. [32]
    That evidence is insufficient in my view to establish a serious psychological injury caused to be exacerbated by Ms Kullack’s behaviour, which of itself constitutes a quantifiable head of damage. There is simply insufficient information.
33. [33]
    I do, however, accept generally that as a result of the hurt and humiliation he has suffered, his work, study, and social functioning have been significantly adversely affected.
34. [34]
    In Singh v Shafston Training One Pty Ltd and Anor [2013] QCAT 8 (‘Singh’), dealing with three instances of vilification, the Tribunal individually assessed compensation for each and totalled them. In Casey v Blume [2012] QCAT 627 ('Casey’), in multiple instances of discrimination the tribunal adopted a global approach to the assessment. I prefer that latter approach, where multiple incidents are similar and occur in a relatively short space of time. To award each incident an amount in total would, I believe, likely result in an award which is inconsistent with previous decisions of the Tribunal.
35. [35]
    In Singh and Casey the Tribunal awarded $10,500 and $10,000 respectively for the hurt feelings of the applicant. The incidents in these cases were comparable or arguably more serious than these and in assessing compensation the tribunal needs to be consistent.
36. [36]
    I am satisfied that the effects of the vilification on Mr Zhai have been significant, and I award him the amount of $10,500 in respect of all breaches.