Federal Court of Australia

Bharatiya v Antonio [2022] FCA 428

ORDERS

THE COURT ORDERS THAT:

1.    It is declared that the respondent engaged in acts that are unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) in that:

(a)    on 29 July 2021, the respondent while standing at the front gate of the applicant's home and in the presence of the applicant shouted abuse at the applicant calling him 'a bloody cockroach' and 'a parasite' which he did for reasons that included the Indian ethnicity of the applicant which act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicant; and

(b)    on 12 January 2021, the respondent while standing in his front driveway said in the presence of the applicant and of the applicant: 'This is what happens when parasites are let into Australia … Cockroaches' which he did for reasons that included the Indian ethnicity of the applicant which act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicant.

2.    The respondent do pay to the applicant damages by way of compensation in the amount of $750.

3.    The respondent do pay to the applicant the amount of $132 by way of reimbursement of process server fees incurred by the applicant.

4.    On or before 6 May 2022, the applicant do file and serve any affidavit and submissions in support of any claim for legal costs.

5.    On or before 20 May 2022, the respondent do file and serve any affidavit and submissions in answer to any claim for legal costs.

6.    The question whether there should be any order for costs and the assessment of costs on a lump sum basis pursuant to any such order be undertaken on the papers without the need for further appearance.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Bejoy Bharatiya and Mr Robert Antonio are neighbours. Unfortunately over recent years there has been a deterioration in their neighbourly relationship. They have not yet been able to restore the civility that should characterise dealings between neighbours even in the face of trying circumstances.

2    The present dispute between them is relatively confined. It concerns a claim by Mr Bharatiya that Mr Antonio has breached s 18C of the Racial Discrimination Act 1975 (Cth) (RD Act) by aggressively shouting insults at him. It concerns events which are alleged to have occurred 'on at least two occasions'. Despite the use of the words 'at least' in Mr Bharatiya's written submissions, there was only one additional occasion that was the subject of any claim at the hearing. Therefore, there are three occasions to consider.

3    Other matters were referred to in the application, submissions and evidence. They are not relevant to the present case and, for the most part, that was accepted by Mr Bharatiya, a position that was reflected in his written submissions. In some limited respects, those other matters provide context in the sense that they explain why there was unhappiness between Mr Bharatiya and Mr Antonio as well as the reasons for Mr Antonio's actions. But no part of these proceedings invites definitive findings about the allegations and counter allegations concerning, amongst other things, a barking dog, poisoned plants, unwelcome video surveillance, the height of the dividing fence between the neighbouring properties, the behaviour of other family members and 'light spill'. The present case concerns only whether the acts of Mr Antonio on the three occasions were unlawful because they were contrary to s 18C of the RD Act.

4    As to the first occasion in issue, Mr Antonio says that in July 2020, when he and Mr Bharatiya exchanged words at the front gate of Mr Bharatiya's home, he was furious and he shouted. He denies threatening violence or harm by his words or his actions. Mr Antonio says that he referred to the dog which is sometimes at Mr Bharatiya's property as 'the black bastard' but he has not used that language to refer to Mr Bharatiya. He admits, in effect, that he has been rude and unpleasant and insulting. Indeed, he is unrepentant about such behaviour and says it was justified by his belief as to what had been done by Mr Bharatiya (or some member of Mr Bharatiya's family). He admits calling Mr Bharatiya a cockroach and a parasite. He says that he also called him a 'creeping Jesus' an expression that he says is used by other neighbours to describe Mr Bharatiya. However, he denies having spoken any racial slurs or that anything he said was because of Mr Bharatiya's Indian ethnicity. He also denies that anyone other than Mr Bharatiya's wife was present on the first occasion.

5    The second occasion was some six months later, in January 2021. The relevant events were captured by one of Mr Bharatiya's security cameras. It occurred at the time the camera was being installed and when there were two installers present. The words that were spoken by Mr Antonio on that occasion are not in dispute. The video recording of what occurred is in evidence. Mr Antonio denies having directed any comments to Mr Bharatiya. He says he spoke only to the installers. Mr Bharatiya says that he was on his front porch on that occasion and the comments made were directed at him. The words spoken by Mr Antonio on that occasion were:

Photos for everybody. Photos. This is what happens when parasites are let into Australia and he has to go and put them up [indistinct]. Cockroaches. Sprayed all our bloody garden [indistinct] …

6    I find that the reference to 'put them up' was to the security cameras. I do not accept a submission to the effect that Mr Antonio was saying something to the effect that you should 'put them out'.

7    The third occasion occurred in the darkness of the early hours of the morning. Again the events are captured by a recording using a security camera located on the property of Mr Bharatiya. It shows Mr Antonio in his side yard adjacent to the property of Mr Bharatiya. It is said that Mr Antonio can be heard to have directed a comment to his neighbours saying they are cockroaches. Mr Antonio admits having done so. Indeed he says that he called his neighbours 'bloody cockroaches'. However, the words spoken on that occasion were spoken into the darkness with no-one else present. There is no suggestion that anyone at Mr Bharatiya's property heard what was said. Mr Antonio appears to have spoken the insult from inside his home, or at least in his own yard. There is no evidence from which it might be concluded that it was done in sight or hearing of anyone. Words spoken in those circumstances could not be unlawful under s 18C of the RD Act. Therefore, the third occasion can be put to one side.

8    Mr Bharatiya says that he has been harassed, offended, insulted and humiliated by the words used and the manner in which they were spoken. He seeks an order requiring an apology. He also seeks an order declaring that the conduct complained of by him is unlawful under the RD Act. He claims compensation in the sum of $10,000. He also says that he has incurred legal costs in obtaining advice relating to the proceedings and in arranging the service of documents by a process server. Initially he also sought other amounts (including the cost of analysing certain substances alleged to have been thrown over the dividing fence by Mr Antonio). However, he did not dispute the proposition that those costs were unrelated to his complaint.

9    Mr Bharatiya made a complaint to the Australia Human Rights Commission that, in substance, concerned the matters the subject of his application in this Court. The Commission was unable to resolve the complaint and it was terminated on the basis that a delegate of the President of the AHRCA was satisfied that there was no reasonable prospect of the matter being settled by conciliation. In those circumstances, this Court has jurisdiction under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to determine whether the relief sought should be granted.

Relevant legal principles

10    Section 18C(1) of the RD Act provides:

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.

11    By the terms of s 18C(2), an act is taken not to be 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.

12    The term 'public place' is defined by s 18C(3). It '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'.

13    As to the reason for an act being done, s 18B provides that if an act is done for two or more reasons and 'one of those reasons is the race, colour or ethnic origin of a person whether or not it is the dominant reason or a substantial reason for doing the act' then the act is taken to be done for that reason. It follows that one of the statutory reasons must be an operative reason for the act that is alleged to be unlawful but it may be one of a number of reasons.

14    It may be noted that s 18C does not require that there be an intention to offend, insult, humiliate or intimidate another person or a group of people in order for an act to be unlawful. Rather, the relevant act must have been undertaken for one of the specified reasons and otherwise unlawfulness depends upon an objective assessment using the standard of whether the act is reasonably likely to offend, insult, humiliate or intimidate.

15    Therefore, three main inquiries are invited by the terms of s 18C.

16    First, is the act complained of one that occurred 'otherwise than in private'? In that regard, the terms of s 18C(2) and the non-exhaustive definition of 'public place' may assist.

17    Second, viewed objectively, was the act complained of reasonably likely to offend, insult, humiliate or intimidate the applicant or a group of persons that included the applicant? This inquiry requires consideration to be given to the likely effect of the act upon a hypothetical person in the circumstances of the applicant or as a member of the relevant group.

18    Third, was the race, colour or national or ethnic origin of the applicant or some or all of the people in the relevant group a reason for the act? This requires an inquiry as to the 'true basis' or 'true ground' of the relevant action, particularly whether the statutory reason was a factor in the decision to act: Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 at [17]-[28] (Kiefel J, as the Chief Justice then was); and Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [71] (French J).

19    The terminology used in the legislation requires the relevant act to be done 'because' of one of the specified matters pertaining to the person or group of people reasonably likely to be offended, insulted, humiliated or intimidated by that act. Therefore, the reason for the relevant offensive act must be one of the specified matters. There must be a causal connection between the two, noting that the connection need not be singular. It is enough if one of the specified matters is one of the reasons that operated to cause the relevant offensive act.

20    Care must be taken to apply the language of the statute and not some explication which might operate as an inaccurate substitute: Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 at [151] (Allsop J, as the Chief Justice then was).

21    In cases where the act complained of by an applicant comprises or includes the making of statements, the question is not whether the words used would be regarded by a reasonable member of the public to be racist and likely to offend, insult, humiliate or intimidate. Carelessness or insensitivity in expression is no excuse for making racist statements and no reason for condoning the behaviour, however it is insufficient to make the conduct unlawful under the RD Act: Creek at [29]. Unlawfulness only arises where the statement is made for reasons that include the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. The race, colour or national or ethnic origin of the person to whom the act was directed must be a reason why the person acted in the way they did.

22    Finally, suspicion about why something was said is not enough. There must be evidence from which the Court can conclude on the balance of probabilities (directly or inferentially) that a statutory reason was why the alleged contravener acted the way they did. In some instances that may require appropriate regard to the seriousness of the allegation.

The act of the first occasion

23    The act complained of by Mr Bharatiya on the first occasion is the abusive conduct of Mr Antonio at the front gate of Mr Bharatiya's home which was alleged to have occurred at arm's length and to have been physically intimidating.

24    It is not in dispute that there was an altercation between Mr Antonio and Mr Bharatiya at the front gate of Mr Bharatiya's property. Nor is it in dispute that at the time Mr Antonio was very upset because the garden in his backyard appeared to him to have been sprayed with poison and he believed that Mr Bharatiya or someone in his family was responsible. Mr Antonio accepts that on that occasion he was 'pretty upset', 'furious', 'abusive' and that he was yelling at Mr Bharatiya and his wife.

25    In his concise statement, Mr Bharatiya described what occurred in the following way:

On 29th July'2020, respondent Robert Antonio charged up to our front door, shouted and abused/insulted my wife Pinku Bharatiya, claiming his garden was destroyed. He later came to the driveway at my arm's length and abused me and insulted me by making several offensive remarks and racial vilifications with physical threats in the open public area where many people/neighbours were passing by, 'black Asians, Indian Jesus, cockroaches, will kill the dog etc.). He also added that he took photos of me and distributed to the community, alleging that I watched people, which I never did, and no one ever complained to me.

26    In his affidavit, Mr Bharatiya produced his complaint to the Australian Human Rights Commission and verified the truth of his answers. In the complaint he said that Mr Antonio 'was violent with racially vilifying behaviour in July 2020'. Later, in describing the events of the second occasion the subject of the present proceedings, Mr Bharatiya said that 'he repeated the same word 'Cockroaches' in July 2020'. The term cockroaches is the only specific term attributed to Mr Antonio in the complaint to the Commission.

27    Mr Antonio provided the following response, on affidavit, to the allegation in the concise statement:

Called them Cockroaches, Creeping Jesus, also Parasites. The dog a Black Bastard, not them.

28    Mr Bharatiya was given an opportunity to give oral evidence about the events at the front gate of his property. His evidence was:

… when he came to my driveway, and he was just standing in front of my first gate, near the porch, he did - he did say that - he was abusing me at length [and] many people who were passing by. And he said, 'You are black Asian, creeping Jesus, cockroaches', and he was almost physical. Now I did not step out of that gate, and my wife pulled me in, and - and we closed the door - she closed the door - the front door. Now … he was abusing me at length, and there were many people who were passing by, which is like a public place, and people were crossing there. So I can't establish who they were. And I did not have the camera at that time. But my wife was standing with me, and she heard everything.

29    In the course of the hearing, before giving evidence, Mr Antonio was reminded of what he had said in his affidavit in response to the applicant's concise statement. Mr Antonio then said:

That was at the front gate. And I did say - this stated all over that big dog [being a dog belonging to Mr Bharatiya's daughter] … I did call that dog a 'black bastard'. And I called him a 'cockroach' and a 'parasite' and that - the 'creeping Jesus' - I said 'No wonder the neighbours [are] calling you 'creeping Jesus'. So I didn't call him 'creeping Jesus'. I've just stated someone else. But that's beside the point. I don't care what colour, creed or religion. Anyone who does what they did, I would call them the same. I don't care.

30    Mr Antonio then gave oral evidence. In the course of that evidence he said:

Yes. I said 'You're nothing but a bloody cockroach'. I said 'If - if that dog barks at the side of my house, I will - I will crown the black bastard'. And I said … 'Only parasites would do what you've done to a person' - my wife's garden there's 16 years of gardening down the drain by - by these people - and our decking'.

31    Mr Bharatiya says that during the heated exchange between them at the front gate, Mr Antonio was very close to him and physically threatening. Mr Antonio disputes that account and says that the gate was between them and that Mr Bharatiya came at him in a threatening way after charging out his front door and his wife had to pull him away.

32    I do not find it necessary to resolve the factual aspects of the dispute concerning how close the two men were to each other at the time. There is no suggestion by either of them that there was any physical contact. On both versions the exchange was very heated and Mr Antonio was abusive. Mr Antonio accepts that he was yelling and abusive.

33    I find that on the evidence, the act of Mr Antonio in confronting Mr Bharatiya and his physical behaviour occurred for the reason that he believed that Mr Bharatiya or someone in his family was responsible for spraying his garden with poison, together with his past frustration concerning the barking of the dog and the unfortunate history of animosity that had developed between the two neighbours. It has not been shown that this is a case where a reason for him challenging Mr Bharatiya and his unreasonable and offensive physical behaviour was the race, colour or national or ethnic origin of Mr Bharatiya.

34    As to whether the acts of Mr Antonio that are complained about were 'otherwise than in private', reliance was placed by Mr Bharatiya upon the reasoning in McMahon v Bowman [2000] FCMA 3 at [26] where the learned magistrate held as follows:

In the instant case there is no evidence that the persons who were present in the street at the time of the incident heard what occurred but given that the words were shouted between one house and the next it would be reasonable to conclude that they were spoken in such a way that they were capable of being heard by some person in the street if that person was attending to what was taking place.

35    It may be noted that the above conclusion was reached in circumstances where it was found that there were persons present in the street. In such a case, even if the words were uttered in a private place, the terms of s 18C(2)(c) apply if the statements are loud enough that it may be concluded that they were in the hearing of people in the street (being a public place). It is not necessary to demonstrate that any of those persons actual heard what was said.

36    However, in the present case there is a dispute as to whether anyone was present in the street. Again, it is not necessary to resolve that factual dispute. Plainly, the acts of Mr Antonio were not in private. He was not within the confines of his own property. He was standing outside the front gate of the property of Bharatiya and therefore on the verge. On his own account he was shouting and yelling. There was no sense in which his actions were 'in private'.

37    As to the claim that on that occasion Mr Antonio called Mr Bharatiya and his wife 'black Asian', on the balance of probabilities, I am not satisfied that those words were spoken. In that regard it is significant that in the complaint to the Commission the only slur attributed to Mr Antonio is the description of Mr Bharatiya as a cockroach. The claim that Mr Antonio called Mr Bharatiya 'a black Asian' is also not referred to in the affidavits filed to support the application in this Court. In the concise statement, filed subsequently at the Court's direction, the words attributed to Mr Antonio are 'black Asians, Indian Jesus, cockroaches, will kill the dog etc'.

38    On the accounts of both parties there were threats made by Mr Antonio about the dog. This is consistent with the account given by Mr Antonio that his reference to the black bastard was to the dog. The reference to 'Indian Jesus' was explained to be a reference to 'creeping Jesus' and that aspect of the account by Mr Antonio does not appear to be in dispute.

39    As has been mentioned, there are two other occasions the subject of complaint by Mr Bharatiya (namely, the events recorded by the security camera in the front yard of Mr Antonio and the events in the early hours of the morning also recorded). On both of those other occasions the terminology used by Mr Antonio is 'cockroach'. There is no recorded statement by him referring to 'black Asians'. This lends some small support to Mr Antonio's account that he did not use those words on the first occasion.

40    Both Mr Bharatiya and Mr Antonio gave their evidence calmly and in clear and direct terms. There was no respect in which their accounts were given that caused me to doubt the credibility of their evidence. As to the first occasion it concerned a very heated verbal exchange. It is likely that recollections of such an event may differ. It is also likely that there may be misunderstanding between them as to what was actually being said as indeed seems to have occurred in relation to the pejorative 'creeping Jesus'.

41    Weighing all these matters, it has not been proven that the words 'black Asians' were used by Mr Antonio to describe Mr Bharatiya and his wife on the first occasion.

The acts of the second occasion

42    As to the acts complained of on the second occasion, Mr Bharatiya relies upon a video recording from a security camera in his front yard. The point of view of the camera is directed partly at the front garden of Mr Bharatiya's home but takes in the whole of the front yard of Mr Antonio. In the foreground, facing the camera and standing on a ladder adjusting the camera is a technician. Over his right shoulder there is a view of the front yard of Mr Antonio's home. Mr Antonio is shown to emerge from his garage and walk along his driveway. He has his mobile phone in his hand. He looks across at a point below the technician, holds up his phone and points at his phone and then waves his finger admonishingly in the direction he is looking and says 'Photos for everybody'. The words are not uttered in a particularly aggressive manner. Mr Antonio then looks up briefly at the technician and walks back towards his garage and off camera. As he walks off, he is heard to say: 'Photos. This is what happens when parasites are let into Australia and he has to go and put them up [indistinct]. Cockroaches. Spray all our bloody garden [indistinct] …'. These subsequent words of complaint are spoken without looking at anyone in particular and are finished when Mr Antonio is out of sight of the camera. Again they are not spoken with an aggressive tone. However, they are audible on the recording. At the end of the short video another technician comes into view and is standing at the foot of the ladder.

43    There is no evidence that the subsequent words spoken by Mr Antonio as he was walking away were heard and understood by Mr Bharatiya or the technicians at the time. The fact that they are audible on the recording is insufficient to establish that fact. The words said are relatively indistinct and it is necessary to listen to the recording a number of times to try and discern what was said.

44    Mr Bharatiya gave evidence that he was on his front porch when the above events occurred. He says Mr Antonio was looking directly at him when he spoke. I accept this evidence insofar as it concerns the words 'photos for everybody'. It is consistent with what is shown by the video. Mr Antonio says he was looking at the technician. However, that is not what the footage from the security camera shows. I find that Mr Antonio only looked at the technician after saying 'photos for everybody' and pointing at his mobile phone. When he spoke those words he was looking to a point that corresponds with the evidence of Mr Bharatiya.

45    Having regard to the content of what was said, I find that all of the comments on that occasion were directed to Mr Bharatiya and were meant to be heard by him. However, I am unable to find that the words other than 'photos for everybody' were heard by Mr Bharatiya or the technicians at the time.

46    From the conduct of Mr Antonio and what was said by him, the reason for his acts on that occasion was the installation of the security camera facing his front yard. He directed his complaint to the taking of photos and pointed out that he had photos of what had been done to his garden.

47    The utterances of Mr Antonio were not in private. It was not a private occasion and it was not a private place. The presence of the security technicians meant that the circumstances were not 'in private'.

The elements of s 18C

48    For reasons that have been given, the relevant acts were done by Mr Antonio and they were done 'otherwise than in private'.

49    As has been noted, the question whether the acts were reasonably likely to offend, insult, humiliate or intimidate another person is to be determined objectively. I find this element to be satisfied. On his own account as to the first occasion Mr Antonio was shouting, he was angry and he was insulting. On the second occasion he was pointing at Mr Bharatiya. The words cockroach and parasite are undoubtedly insults and they are insults of a kind that would be expected to demean the person to whom they are directed. Mr Antonio's behaviour was reasonably likely to offend and insult Mr Bharatiya.

50    The real issue is whether the acts of Mr Antonio were done because of the race, colour or ethnic origin of Mr Bharatiya. As has been observed, it is enough if the reason for the act was one of the statutory reasons for the act (even if it was not the dominant reason or a substantial reason).

51    The race, colour or origin of Mr Bharatiya were not a reason for the altercation at the front gate and they were not a reason for Mr Antonio coming out and shouting things from his driveway when the security camera was being installed. On the evidence, on the first occasion his actions were undertaken because of Mr Antonio's belief that Mr Bharatiya or someone in his family had damaged the garden in his backyard by spraying them with poison. They were exacerbated by his past considerable upset about the dog barking at his side fence and the animosity that he held towards Mr Bharatiya.

52    The connection between the actions of Mr Antonio and his belief about the spraying of the garden in his backyard is supported by his evidence as to why he was seeking to speak to Mr Bharatiya on the first occasion. It is also supported by the terms of the concise statement from Mr Bharatiya which says that on the first occasion Mr Antonio was claiming that his garden was destroyed. It is also evident from the actions of Mr Antonio in pointing to his mobile phone on the second occasion where, as he said, he had all the evidence of the photos of his garden being sprayed as well as the statement made by him at the time about all his garden being sprayed. I accept his evidence in this regard.

53    On the second occasion he was reacting to the installation of the security cameras and they were the evident reason for him directing comments to Mr Bharatiya.

54    Nevertheless, from the universe of available insults, Mr Antonio chose to refer to Mr Bharatiya and his wife as cockroaches and parasites. Mr Antonio offers no explanation for his choice of those particular expressions to manifest his complaint. He says they are insults that he would direct to any person irrespective of their race, colour or origin. In effect, he says that they are generic insults that he would use irrespective of the context.

55    As to the claims by Mr Antonio, it is significant that on the second occasion he said 'this is what happens when you let parasites into Australia … Cockroaches'. This contextualises the insult conveyed by Mr Antonio when he uses the word cockroach. He is plainly using the term to refer to the fact that Mr Bharatiya and his wife are immigrants to Australia. The lexicon of racist insults is not closed. Many words may take on that character, depending upon matters such as context, tone and allusion to historical events or cultural practices or beliefs. The Court was not taken to any material to suggest that the use of the expression 'cockroach' is a well-known racist slur. Nor was it taken to any material to suggest that it is a well-known generic insult which would be used irrespective of race, colour, national or ethnic origin of the person to whom the word might be directed. Nevertheless, in the modern Australian context, I find it difficult to differentiate between an anti-immigrant reason for using a particular term and the use of the term because of race, colour or national or ethnic origin. Given the origins of many immigrants to Australia, there would be a considerable overlap between the categories. When spoken to a person of Indian ethnicity who is a migrant, it may be readily inferred that the reason the word was used was because of the ethnicity of the person concerned.

56    In all the circumstances, I am satisfied that a reason why Mr Antonio reached for the word 'cockroach' on each of the two occasions was because of the ethnicity of Mr Bharatiya. Therefore, a reason for speaking those particular words was because of Mr Bharatiya's Indian ethnicity. However, the ethnicity of Mr Bharatiya was otherwise not a reason for anything that Mr Antonio did on the first occasion or the second occasion. On neither of those occasions was a reason for Mr Antonio's abuse the ethnicity of Mr Bharatiya. However, his ethnicity was a reason for the terms in which some of the abuse was expressed. In those circumstances and to that limited extent it was a reason for speaking the words used.

57    It follows that the unlawful nature of Mr Antonio's conduct was confined to the speaking of particular words during the course of behaviour that was otherwise undertaken for reasons other than those described in s 18C of the RD Act. The question of the orders that might be made in the exercise of the discretionary power to make orders conferred by s 46PO of the AHRC Act must reflect the confined extent to which the conduct complained of has been demonstrated to be unlawful.

The claim to an order requiring an apology

58    The authorities concerned with the circumstances in which it may be appropriate to order an apology were carefully considered by Mortimer J in Wotton v State of Queensland (No 5) [2016] FCA 1457 at [1550]-[1596]. In a case like the present where the conduct concerns the actions of one person directed to another (without any sense in which the individuals may be representing some organisation, institution or corporate entity) and the individual insists on defending the conduct, it is difficult to see what purpose would be served by forcing that person to speak words which would be devoid of the sincerity required for an apology to be able to have any prospect of salving offence. In such instances, the observation of Hely J in Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at [245] that 'the idea of ordering someone to make an apology is a contradiction in terms' has considerable force. It is a view with which other judges have expressed agreement. Which is not to say that in appropriate circumstances, the statutory power conferred by s 46PO(4)(b) of the AHRC Act to order a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant might not be exercised so as to require a person who has engaged in conduct that is unlawful under the RD Act to publish some form of statement. However, in the circumstances of the present case, in my view no purpose would be served by ordering Mr Antonio to express the words of an apology to Mr Bharatiya. I decline to make such an order.

The claim to an order by way of declaration of unlawfulness

59    For reasons I have given, I am satisfied that certain of the conduct of Mr Antonio was unlawful. A declaration serves the purpose of admonishing the conduct and also making clear the position for future cases. I am satisfied that it is appropriate to grant the order sought but confined to the conduct I have found to be unlawful. I will make orders in relation to the acts on both occasions. Had the proceedings been confined to the second occasion, I would have been inclined to refuse to grant relief on discretionary grounds. As explained below, of itself, the conduct was not sufficiently serious to justify court proceedings.

The claim to compensation

60    The Court has power to award damages by way of compensation for any loss or damage suffered because of the conduct of a respondent found to have been unlawful discrimination: s 46PO(4)(d) of the AHRC Act. In making that assessment, the Court may be guided by the general principles governing the assessment of damages bearing in mind that the Court is exercising a statutory power and it is a matter of statutory construction (including by reference to any evident statutory objects and purposes) that may inform the correct approach: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 at [27]-[30] (Kenny J), [124]-[130] (Besanko and Perram JJ).

61    The damages which can be awarded under s 46PO(4) are entirely compensatory. The statutory remedy of damages is discretionary in character. It allows an award of an amount which does not fully compensate for the loss suffered: Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at [94] (French and Jacobson JJ). If there is reason to refuse relief in the exercise of discretion then the Court may do so. Therefore, a finding that conduct was unlawful does not give rise to a statutory right to damages by way of compensation.

62    Racial insults are hurtful and may be deeply so. It may be readily inferred that they may cause distress. They deprive people of their dignity. They may cause the person to whom they are directed to feel humiliation. They can have consequences that are ongoing for those to whom they are directed. Indeed, they can have an aggregating effect whereby the weight of many or prolonged insults by different people can mean that the harm suffered accumulates considerably over time. As a result the same type of act may inflict different degrees of damage depending upon the past experience of those to whom the act is directed. The extent to which that is the case may be exacerbated if insults are spoken in the presence of others, especially those whose views, opinions and respect are significant to the person concerned. Therefore, it is possible that a single act may cause considerable harm depending upon the circumstances, particularly the past experience of the person or group to whom the act is directed.

63    Ultimately, the damages claimed by Mr Bharatiya were for compensation for alleged hurt, offence, humiliation and distress. To the extent that there was evidence of such matters it was in very general terms and consisted of the verification by Mr Bharatiya of general claims in his complaint to the Commission. This was not a case where there was some contextual reason relied upon to demonstrate why the harm was greater than might reasonably be expected from the single act of directing the unlawful statements to Mr Bharatiya.

64    I accept that the words used by Mr Antonio were hurtful. However, forced as I am to make an assessment of whether they caused harm, I find that they were at the lowest end of the scale. Had there been a prompt, fulsome and genuine apology, I would have been inclined not to award damages. It is a case where the sting of offence may have been removed by an apology. However, the extent of harm in the present case is unmitigated by an apology. Mr Antonio has sought to defend and justify his behaviour.

65    In assessing compensation for loss suffered by the unlawful conduct on the first occasion, it is necessary to put to one side the other aspects of the conduct. For reasons I have given, the contravening conduct is solely constituted by the speaking of the offensive words, the manner in which those words were expressed and the place where they were expressed. I have not accepted that any other aspect of the conduct was unlawful. It is those other aspects that are likely to have given greatest offence. Given, the general nature of the evidence of harm, the absence of any evidence of significant or ongoing harm, the lack of an apology and the fact that the words were shouted at Mr Bharatiya in the street outside his home and in the presence of his wife, I assess damages in an amount of $750.

66    For the following reasons, having regard to the nature of what was said on the second occasion and the circumstances, I do not consider it appropriate to award damages.

67    The events on the second occasion were very limited in duration. Their significance to Mr Bharatiya appears to have been elevated by his ability to access the recording taken by his security camera and scrutinise what was said. I do not consider those aspects to form part of the unlawful actions of Mr Antonio for which he may be made responsible by an award of compensation. It has not be proven that the offensive part of the words spoken were heard by anyone at the time.

68    Further, in my assessment, the statements made on the second occasion and the circumstances in which they were made were not sufficiently serious to be the subject of court proceedings. Where, as here, the extent of the appropriate relief would be minor in nature when measured against what must be done in order to undertake a court hearing, it is appropriate to exercise the statutory discretion against granting compensation. Just because conduct is unlawful does not mean that it is appropriate to burden prospective respondents with compensation claims that could only result in small, possibly trivial, awards of damages. It is a very significant thing for an applicant to invoke the authority of the Court to require a person to attend and participate in court proceedings. It is a step that should be reserved for instances where the conduct and its consequences warrant that course.

The claim to legal costs

69    Mr Bharatiya claims to have spent $2,689.72 on legal fees and the costs of a process server. I would allow the recovery of the costs of a process server to effect personal service of the application. The amount claimed in that regard is $132. Otherwise, it is not clear as to the extent to which the legal costs related to the claims made in these proceedings as distinct from other aspects of the dispute between the parties. Also, Mr Bharatiya initially sought far ranging relief. His damages claim was $10,000. Mr Antonio has been substantially successful in defending the quantum of the claim. Those are matters that should be brought to account in determining whether there should be any order for costs and, if so, whether some allowance should be made for the extent to which the claim has been successful.

70    In the circumstances, I will allow Mr Bharatiya an opportunity to file evidence as to the legal costs that he has incurred (specifying what those legal costs were for) and submissions as to the amount of any order for costs claimed in light of these reasons. I will afford Mr Antonio an opportunity to respond and I will then determine the appropriate cost order and assess the quantum of any costs order on a lump sum basis.

A final entreaty

71    The judicial power is exercised to quell disputes, that is, to bring them to an end. The courts are not to be resorted to as a means of generating further disagreement or continuing into the future that which should be resolved. I trust that the adjudication of this matter, the most recent in a series of complaints, will bring finality to this unfortunate period in the dealings between two neighbours and it will do so even though it will not deal with earlier grievances. It is to be hoped that, in the future, Mr Bharatiya and Mr Antonio will find the means to forbear. When it comes to neighbours, it is better to withdraw than to offend. Certainly it is best to avoid abusive language of any kind. In their own shared interests, I encourage them both to draw a line and begin again.

Associate:

Dated:    26 April 2022