FEDERAL COURT OF AUSTRALIA

Haider v Hawaiian Punch Pty Ltd [2015] FCA 37

THE COURT DECLARES THAT:

1.    The respondent on 15 February 2014 committed unlawful discrimination against the applicant by using language which was reasonably likely in the circumstances to offend, insult and intimidate the applicant by reason of his race and ethnic origin, contrary to s 18C(1) of the Racial Discrimination Act 1975 (Cth).

THE COURT ORDERS THAT:

2.    The respondent pay to the applicant damages of $9,000 by way of compensation for the loss and damage suffered.

3.    The respondent pay to the applicant the disbursements properly incurred in instituting and conducting the claim.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BACKGROUND

1    The applicant, Waqas Haider, alleges that in the early morning of 15 February 2014 he was racially abused by a bouncer employed by the respondent, Hawaiian Punch Pty Ltd trading as The Honeypot Club, in breach of ss 9, 13 and 18C of the Racial Discrimination Act 1975 (Cth) (the RD Act) (the Incident). Mr Haider has duly served the respondent with the application. It has chosen not to appear in response to the application.

2    The respondents are vicariously liable under s 18A (in relation to acts which are unlawful under ss 9 and 13), and s 18E (in relation to acts which are unlawful under s 18C) of the RD Act for acts done by their employees in connection with their duties as employees.

3    The application is made under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). It permits applications to be made to the Federal Court of Australia within 60 days once a matter has been brought before the Human Rights Commission and terminated by the President of the Australian Human Rights Commission. A notice of termination was provided to the applicant on 1 July 2014, on the basis that mediation of his complaint to the Commission was not going to be successful. The application was made within the permitted time.

4    On 4 December 2014, as the Court was satisfied as to the jurisdictional foundation for the claim, and as to service, and the respondent had not appeared, the applicant was given time to file and serve any further evidence. It was explained to him that any allegations of physical or intellectual injury, and actual physical detriment or economic loss or expense, should be supported by appropriate medical evidence and documentary confirmation.

Consideration

5    The contravening conduct is proven by Mr Haider’s evidence and the confirmatory material, including a film of the offending conduct contained on a USB memory stick.

6    The following represents my findings of fact.

7    The Incident took place just outside the premises of The Honey Pot Club at about 2:00 am. The doorman from the Honeypot Club threw some balloons into the street. Mr Haider picked them up, and said to the doorman (I have used that description, although he is described as the bouncer by Mr Haider, as his role is not clearly shown, even though there is no doubt he was working at The Honeypot Club) that it was not safe to do that as it could cause an accident. A very vigorous verbal exchange took place, with strong language from both Mr Haider and the doorman.

8    I note that Mr Haider is of Indian or Pakistani appearance. Relevantly, in the course of that heated exchange, the doorman yelled at Mr Haider that he should go back to his own country, that Australia is a white peoples’ country, and that he is not white. Mr Haider responded that Australia was his country and he was not going anywhere. The doorman continued his abusive conduct, and challenged Mr Haider to produce his visa. He approached Mr Haider, over a distance of a few metres, and pushed him firmly in the chest causing Mr Haider to stumble backwards a few steps. He did not fall.

9    Shortly after that, the altercation ceased as the police approached and the doorman went into the club.

10    Section 46PO(4) of the AHRC Act empowers the Court to give a remedy if it is satisfied that there is unlawful discrimination by a respondent.

11    Section 18C of the RD Act provides:

(1)    It is unlawful for a person to do an act, otherwise than in private, if:

(a)    the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)    the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note:    Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

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

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

(b)    is done in a public place; or

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

(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.

12    Clearly the doorman’s conduct occurred in public. In my view, the loud language of the doorman was reasonably likely, in the circumstances, to offend, insult and intimidate Mr Haider. Moreover, that language included aggressive aspersions based on his race or ethnic origin. Therefore, I am satisfied the doorman’s conduct amounted to unlawful discrimination, contrary to s 18C.

13    The respondent is vicariously liable under s 18E for that unlawful discrimination done by an employee. The respondent has chosen not to participate in the hearing and so has not adduced any evidence to show it has taken reasonable steps to prevent the doorman from engaging in that unlawful discrimination: see s 18E(2).

14    The applicant seeks, in his application, $25,000 compensation for losses incurred because of the emotional stress suffered. He refers to public embarrassment and severe emotional distress; medical visits to a clinic; loss of income due to absence from work and reduction in employment from full-time to part work; and loss of professional reputation due to absence from work. He also seeks an apology from the respondent, and “to ensure that the proper measures have been taken by the management to avoid this situation again”.

15    Despite the opportunity provided to the applicant, referred to above, his evidence of his losses is somewhat inadequate. By his affidavit of 22 December 2014, he has described the adverse effect on him of the doorman’s conduct.

16    I accept that he was traumatised and embarrassed in public, including in front of a friend who was with him. I accept he had not previously been racially vilified in that way. I accept that, as a result, he became a little introverted and suffered some headaches.

17    However, in the absence of medical evidence, I am not satisfied the offending conduct has led to him suffering such mental trauma as to require him to take some 16 days of leave from his work, or that he has had “high migraine” also requiring him to take time off work, or that he has had significant medical treatment. Such claims, even accepting that Mr Haider has had such symptoms as he describes and believes that they are attributable to the doorman’s particular contravening conduct, are not established to my satisfaction in the absence of confirmatory medical evidence or confirmatory documentation.

18    Similarly, although Mr Haider says his work performance has diminished, I am not satisfied that it is attributable to the doorman’s contravening conduct. There is no apparent reason why an incident such as he describes, outside a nightclub late at night, should adversely affect his reputation amongst his work peers or his clients. Consequently, I do not accept that he left his job for reasons actually related to the doorman’s conduct.

19    I accept that Mr Haider from time to time has been distressed by recalling the doorman’s words that Australia is not his country and is white peoples’ country. But the absence of medical evidence means that I am not satisfied that his perception that, in addition to the matters already referred to, he has been forgetful and “absolutely distracted from my normal day to day routine” or that he “had no track of anything” is related to the contravening conduct. That is not a likely consequence of the coarse and offensive words of the doorman, in a late night abusive conversation in which Mr Haider robustly took part, so the lack of confirmatory medical evidence means I do not make the finding Mr Haider seeks.

20    As the Court is satisfied that there has been unlawful discrimination by the respondent, the Court may make such orders (including a declaration of right) as it thinks fit under the AHRC Act. Relevantly, s 46PO(4) includes:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

…

(d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent.

21    The appropriateness of an order compelling an apology from the respondent has previously been considered in the context of unlawful offensive behaviour under s 18C by Bromberg J in Eatock v Bolt and Another (No 2) (2011) 284 ALR 114, and by Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 (Creek). Both matters concerned the publication of allegedly offensive newspaper material. However, Kiefel J in Creek at [33]-[35] noted that the respondents withholding of an apology and failure to acknowledge that the behaviour was racist was a matter to be taken into account in assessing the extent of the injury felt by the plaintiff and the compensation to be awarded to redress that. I have taken the absence of any apology by the respondent into account in this matter.

22    In the circumstances, I consider that the appropriate remedies are:

(1)    a declaration that the respondent, on 15 February 2014, committed unlawful discrimination against Mr Haider by using language which was reasonably likely, in the circumstances, to offend, insult and intimidate Mr Haider by reason of his race and ethnic origin, contrary to s 18C(1) of the RD Act; and

(2)    an order that the respondent pay to Mr Haider damages of $9,000 by way of compensation for the loss and damage he suffered because of that conduct.

23    I have not made any order that the respondent not repeat such discriminatory conduct because the evidence does not show that The Honeypot Club continues to operate. For the same reason, I have not considered it appropriate to direct the respondent to apologise to Mr Haider; as well, any such apology now would be contrived as the respondent, if he were minded to apologise, would and should have done so by now.

24    The assessment of compensatory damages reflects the matters I have discussed above. It takes account of the offending conduct and the circumstances in which it occurred. It also reflects that Mr Haider has not received an apology from the respondent. It does not include any allowance for his perception of the response of various authorities to his complaint of racial discrimination, or to the costs he says he has incurred in consulting lawyers to get advice about his complaint. Neither of those things, in my view, should properly be reflected in the damages awarded; in addition, in the case of the fees incurred, there is no documentary material to support them.

CONCLUSION

25    For the reasons given, there will be a declaration in the terms referred to and an order for the payment of compensation of $9,000. He should also recover the disbursements, if any, he has incurred in instituting and maintaining the claim.

Associate:

Dated:    6 February 2015