Anti-Discrimination Decisions

[2007] TASADT 08

Catchwords:

Equal opportunity - Discrimination on the basis of race - Inciting hatred on the basis of race - Area of accommodation - Whether allegation substantiated - Anti-Discrimination Act 1998 (Tas) s99

Representation:

Reasons For Decision

BACKGROUND

1. This decision concerns an Inquiry held to determine the Complainant’s allegations that the Respondents discriminated against him based on race and/or incited hatred against him due to his race.

2. The Respondents’ position was that at no time had they racially discriminated against the Complainant and that it was the Complainant who had on many occasions been offensive and abusive to the Respondents.

3. The parties were legally represented at the hearing, the Complainant was represented by Mr Bartl and the Respondents were represented by Mr Mackie. Both parties gave evidence and called witnesses in support of their respective cases.

4. The Complainant gave evidence that he was a retired builder and did some maintenance work for a company called L’Aquila. In February 2002 L’Aquila bought the property at 33A Mellifont Street, West Hobart which the Complainant had owned since 1979. The Complainant’s son, Anthony di Benedetto was the sole director of the company.

5. The Complainant met the Respondent Ms Wilson in 2000 when she moved into 35 Mellifont Street, West Hobart and at some later date, which is in dispute, met the Respondent, Mr Willis. The Complainant said that as soon as Ms Wilson moved in he had difficulties with her. He wanted to build a house at 33A Mellifont Street and Ms Wilson resisted this. He offered to sell Ms Wilson his land but Ms Wilson was not interested. In April 2000 he started building.

6. The Complainant gave evidence about six incidents which he says occurred and involved one or both of the Respondents racially slurring him. The first three incidents were not part of the claim but were relevant as to the relationship between the parties.

15 May 2000 Incident

7. The Complainant alleges that he was working at 33A Mellifont Street with his son, Anthony di Benedetto, Paul Porihis and another male Michael, whose surname he could not recall. His evidence was that he was replacing part of the fence between the two properties when Ms Wilson came onto the building site and in a loud voice said "What are you doing?". She appeared angry, pushed the fence and the Complainant’s right shoulder. She told the Complainant she did not want the fence and the Complainant said it was for her privacy. She then left and went and spoke with Mr Willis and then both Respondents came back onto the building site and started to insult the Complainant.

8. His evidence was that the Respondents called him a ‘wog’ and told him to "go back to his country". The Complainant told them to leave his property and Mr Willis got Ms Wilson to leave and as Ms Wilson was leaving she pushed the fence and said "I don’t want the fence you wog" and she walked away.

9. Mr Willis didn’t leave and moved closer to the Complainant and Mr Willis said words to the effect that the Complainant should not have done this, that he (Mr Willis) works for the Hobart City Council and from now on Mr Willis was going to make life very difficult for the Complainant. The Complainant asked him if that was a threat and told Mr Willis to leave the property otherwise he would call the police. Mr Willis then left the property saying "you wog".

10. The Complainant said he felt humiliated and upset and the behaviour was unnecessary, especially in front of others. He said he had put the fence back for the Respondents’ privacy and they should have appreciated it.

11. The Tribunal heard evidence from Anthony di Benedetto and Paul Porihis in relation to this incident.

12. Paul Porihis said that he knew the Complainant through his family and did some light labouring work for the Complainant during 2000 when the Complainant was building the house at 33A Mellifont Street. He said on 15 May 2000 he was helping the Complainant and the Complainant’s son, Anthony di Benedetto. The Complainant was putting a fence back up between 33A and 35 Mellifont Street when Ms Wilson came over yelling and screaming. He couldn’t make out what she was saying and he saw her push the fence. He didn’t get involved and then saw Mr Willis come over and speak to Ms Wilson. He then heard Ms Wilson say "I don’t want this fence you wog" and "go back to your own country". These comments were made as Ms Wilson and Mr Willis were walking away.

13. Mr Porihis said he had a Greek background and had had racial slurs directed at him through school and hearing adults use language like this stuck in his mind. He was fairly sure this incident occurred in 2000 because it was the year he was 17 turning 18 and he was born in October 1982.

14. Anthony di Benedetto gave evidence that he was the son of the Complainant and the director of L’Aquila which is a company that renovates and builds houses. During 2000 he worked with his father at 33A Mellifont Street. Further, that he knew Ms Wilson and Mr Willis as the next door neighbours.

15. Anthony di Benedetto said that he recalled an incident on 15 May 2000 when he and the Complainant were replacing part of the boundary fence. He said that Ms Wilson came over and was hysterical and telling them that she did not want the fence. Mr Willis then arrived and Mr Willis and Ms Wilson were being abusive. Mr Willis told Ms Wilson to go inside and as Ms Wilson left she said words to the effect:

"take the fence away you wog"
"why don’t you leave us alone and go back to your country".

Anthony Di Benedetto said he heard Mr Willis, more calmly, say to the Complainant that he, Mr Willis, was with the Council and now that the Complainant had had a fight with Ms Wilson, he would make things very difficult for the Complainant in the future. He told the Complainant that they work closely together at the Council and they need to approve everything. The Complainant then told Mr Willis to leave his property and as Mr Willis left he said words to the effect:

"You’re just a wog anyway".

16. Anthony di Benedetto recalled that Paul Porihis was present during this incident.

17. During cross-examination Anthony di Benedetto was asked to repeat his recall of this incident and did so in similar terms to his evidence in chief. It was then put to Anthony di Benedetto that when the Complainant gave evidence he told the Tribunal that Ms Wilson had pushed at the fence and pushed the Complainant. Anthony di Benedetto said he believed he had given evidence about this point and said that if his father said that, then it was true.

18. It appeared to the Tribunal that Anthony di Benedetto was tailoring his evidence to fit in with the Complainant’s and it seemed that his account of this incident didn’t include any pushing of the fence or the Complainant until it was pointed out to him that his father had given an account which included the fence being pushed by Ms Wilson. This demonstrated in the Tribunal’s view, support for the contention by the Respondents that this incident had been fabricated by the Complainant and his son.

19. The Respondents gave evidence that this incident did not happen. Ms Wilson said that she could not recall ever discussing with the Complainant what he may or may not have been doing with the fence. Further the Respondents’ position was that any incident on 15 May 2000 that is alleged to have involved Mr Willis could not have occurred because Mr Willis had never attended 35 Mellifont Street prior to March 2002 and he did not know Ms Wilson at that time and certainly was not in a relationship with her to become involved in such an incident as described by the Complainant, his son and Mr Paul Porihis

20. The issue of credit is central to this case because the Tribunal heard evidence from the Complainant that there were a further two incidents which occurred prior to September 2002 which involved Mr Willis and/or Ms Wilson. The Respondents’ position was that there could not have been any incidents involving Mr Willis prior to September 2002 because Mr Willis and Ms Wilson were not in a relationship prior to September 2002.

21. The evidence pertinent to this issue needs to be resolved as it impacts significantly on the credit of the Complainant.

22. The Complainant gave evidence of two other incidents which are alleged to have occurred prior to September 2002, those being on 22 January 2001 which involved Mr Willis and one on 23 January 2002 which involved Ms Wilson.

Incident 22 January 2001

23. The Complainant gave evidence that he was at 33A Mellifont Street, it was semi-dark on 22 January 2001 which was a Saturday night. He was laying bricks on the southern wall of the property. His son Anthony di Benedetto was with him when Mr Willis climbed the boundary fence and walked over to the Complainant and said words to the effect "What are you doing" and the Complainant said "laying bricks" and then Mr Willis went on to say to the Complainant in effect that he was doing it in a sneaky way and the Complainant refuted it and said he needed to get it finished, that he resented the comment and asked Mr Willis to leave the property. The Complainant said he made some comments to Mr Willis about him working at the Council and whether they were paying him overtime to check things next door. He then told Mr Willis angrily to leave the property and as Mr Willis left he said "You wog".

24. Anthony di Benedetto gave evidence that on 22 January 2001 he and the Complainant were patching up a hole in the wall. They were doing the work in the evening and Mr Willis came over and said they were trying to hide something and he was going to report it. Mr Willis then left and called the Complainant a ‘wog’.

25. Under cross-examination of Anthony di Benedetto it was put to him that his father had given evidence that his son wasn’t present for the conversation between the Complainant and Mr Willis, that Anthony di Benedetto was out of sight behind a wall and that according to Anthony di Benedetto’s evidence his father’s evidence was wrong. Anthony di Benedetto then said he was moving between his father and behind the wall and was able to hear the conversation. This was inconsistent with the Complainant’s evidence.

26. Mr Willis gave evidence that this incident did not happen, that he didn’t know Ms Wilson and he had not been to 33A or 35 Mellifont Street.

23 January 2002 Incident

27. The other incident the Complainant gave evidence about was alleged to have occurred on 23 January 2002 and involved Ms Wilson. He said that on that date he hand delivered a letter to Ms Wilson which related to some damage to the boundary fence and water spilling on the Complainant’s property. The Complainant alleged that Ms Wilson asked him if the letter was about her and he told her of course it was. He said that Ms Wilson then stuck her middle finger up at the Complainant and said "get lost you wog".

28. Ms Wilson gave evidence that this incident did not occur, that she had never had a letter delivered to her by the Complainant and she had never referred to the Complainant as a wog that day or any day.

Evidence as to the relationship between Mr Willis and Ms Wilson

29. The Respondent gave evidence that their relationship began in September 2002. There was evidence which impacted on this assertion and supported their contention that their relationship did not begin prior to September 2002. Mr Willis gave evidence that he had been employed with the Hobart City Council since 1982 until present and during his employment has had a number of work vehicles and that he only ever drove a work vehicle. The effect of his evidence was that he had the following vehicles allocated to him during various periods:

• 3 November 1997 – 20 February 2001 - Green Toyota Sedan
• 15 January 2001 – 11 March 2003 - Magnetic Silver Toyota
• 6 February 2003 – 10 January 2006 - White Hilux Utility

The Complainant gave evidence that during 2000-2002 he saw Mr Willis regularly at Ms Wilson’s house and during that period saw Mr Willis driving a white vehicle. Mr Willis gave evidence that he did not drive a white vehicle during that period.

Mr Willis’s evidence is supported by "R4" which was a letter setting out the vehicles that had been allocated to Mr Willis. This added further veracity to the Respondents’ position that their relationship did not start until September 2002 because the vehicle that the Complainant saw was the one allocated during February 2003 – January 2006 and if Mr Willis had been visiting prior to that the Complainant would have seen a green or silver Toyota. The Complainant only gave evidence about seeing Mr Willis drive a white vehicle which further supported the Respondents’ contention that the Complainant has fabricated the incidents alleged to have occurred in 2000 and 2001 involving Mr Willis.

30. Further evidence as to the relationship was given by Ms Wilson’s daughter, Eliza Gill. Miss Gill gave evidence that she lives at 35 Mellifont Street with her mother and her brother, that she met Mr Willis in late 2002 when she was 13 nearly 14, her birthday is 31 October, and she recalled that Mr Willis came to live with them and then in August 2005 her mother and Mr Willis separated. Under cross-examination Miss Gill was not challenged as to when she met Mr Willis and the Tribunal found her to be a credible witness and accepted her evidence.

31. There was a suggestion by the Complainant that Mr Willis and Ms Wilson had gone to school together and that supported his position that Mr Willis was at least a visitor to the house prior to September 2002. Mr Willis gave evidence that he had attended New Town High School and went to Elizabeth College. Ms Wilson gave evidence that she attended Dominic College and it was agreed between the parties that in 1979 Ms Wilson completed her schooling at Dominic College. The Tribunal is satisfied that Mr Willis and Ms Wilson did not attend the same school.

32. There is one further body of evidence which is relevant to when the relationship started. Ms Wilson gave evidence that she had recorded in her diary of 2002 the first time that Mr Willis stayed overnight at her place and the diary extract was tendered and marked "R1". The diary entry was as follows:

"September
Week 37
*Ross*
27 Friday"

Ms Wilson’s evidence was that she had a habit of recording important events in her diary and the reference to "Ross" was to Mr Willis. Further when Ms Wilson gave this evidence it was apparent that she was embarrassed about having to disclose this private detail in a public forum but acknowledged that the diary entry was important because it recorded an event which was important to her.

33. The Tribunal is positively satisfied that the Respondents did not enter a relationship until September 2002 and that the allegations involving Mr Willis on the 15 May 2000 and 22 January 2001 could not have occurred as described by the Complainant and his account of those incidents were a fabrication and that witnesses called to support those allegations have through some displaced loyalty to the Complainant misled the Tribunal.

34. This finding casts a grave shadow over the credibility of the Complainant generally and in order for the Tribunal to be satisfied of any matter that the Complainant gave evidence about there would need to exist some cogent independent corroboration.

35. There were other matters which also impacted on the Tribunal’s view that independent corroboration would be required before the Tribunal could accept evidence from the Complainant.

36. Firstly the Complainant gave evidence that he purchased the land at 33A Mellifont Street in 1979 and in 1999 he submitted plans to the Hobart City Council and there was an exchange of correspondence between the Complainant and the HCC representative. Mr Willis gave evidence that in 1999 he was employed as a Manager of a team of managers and as the manager was aware of the proposal. This was because it was quite unusual as it related to the use of the property and whether the property which was being built was effectively two units or a house. As the manager he had some involvement in 1999. However when issues arose in 2004 Mr Willis withdrew any professional involvement because he was living next door.

37. Essentially, the problem was if the property at 33A Mellifont Street was to be used as two units it was unapproved use and the Complainant needed to seek Council approval. The Complainant gave evidence that his plans for 33A Mellifont Street had been frustrated and as far as he was concerned Mr Willis was responsible for that situation.

38. Secondly, there was evidence before the Tribunal which supports a claim that the discrimination claim is motivated by an intense dislike of Mr Willis. Ms Wilson said that on a number of occasions she has been approached by the Complainant and he has told her that the claim is not about her but about Mr Willis. Ms Wilson gave evidence that prior to a directions conference with the Tribunal in late 2006 she arrived early and the Complainant approached her and said words to the effect this is not about you, it is about Mr Willis and what he has done. Ms Wilson said this happened on another occasion at court when the Complainant told her it wasn’t about her it was about Mr Willis.

39. Ms Wilson gave further evidence that on 3 December 2006 whilst she was at home, the Complainant called her over and suggested to her that if she sold him a small portion of her land he would discontinue the claim against her because essentially the claim was not about her but about Mr Willis. The Complainant went on to say that he expected that Mr Willis would lose his job. He also raised with Ms Wilson that he didn’t believe that she was Aboriginal and was offensive in his comments to her about that. The issue of Ms Wilson’s aboriginality and comments made by the Complainant will be dealt with later in the decision.

40. The Complainant also said words to the effect that if the matter resolved against Ms Wilson then she wouldn’t have to worry whilst she was in America. Ms Wilson took this as a veiled threat that her property would be at risk whilst she was to be away overseas.

41. This conversation was put to the Complainant in cross-examination. The Complainant in summary said that he spoke to Ms Wilson and said the following:

• he intended to sort the matter out if possible without going to court;
• he could withdraw the action against Ms Wilson because it was Mr Willis who had caused the problem by pushing her into it;
• he could withdraw the action against Ms Wilson if she released some of her land to him, that he would draw up a plan;
• that Ms Wilson shouldn’t talk to Mr Willis because he is manipulative and he would handle him separately;
• gave Ms Wilson his phone number and asked her to let him know;
• asked Ms Wilson how her father was because he knew he was very sick and for Ms Wilson to pass on his respects to him;
• he raised that Ms Wilson says she is Aboriginal and he told her he knew her parents and they are as white as him and he could not believe that she is Aboriginal;
• it was a friendly conversation probably the first friendly conversation, between them, Ms Wilson was calm, civil and nice to him;
• he denied using words "abo" or "spastic";
• he said that he told Ms Wilson that Mr Willis was more responsible than her for the problems;
• he told Ms Wilson that the court case was serious and that Mr Willis could lose his job;
• he denied the comment about her property being a veiled threat and said he used the word "problems" not "property".

42. Ms Wilson walked away from the conversation and recorded her recall of it, which was tendered and marked "R8". It is apparent from that conversation even allowing for the Complainant’s version that the Complainant has two motives in pursuing this claim, firstly, he is using it as leverage with Ms Wilson to obtain a parcel of her land and secondly he is focused on causing serious trouble for Mr Willis.

43. This focus on causing trouble for Mr Willis is further emphasised by some further evidence that the Complainant gave towards the end of his cross-examination of him. He said that he first met Mr Willis in 2000 when Mr Willis jumped the fence and he was "sticky beaking". He knew Mr Willis was employed at the Hobart City Council in early 2000 as his name was on some paperwork. The Complainant said that he only had council approval to use the property as one dwelling and in 2005 his application to use the property as two separate dwellings was refused and as far as the Complainant was concerned Mr Willis went out of his way to ensure that the Complainant could not use the property as two separate dwellings. He gave evidence that he firmly believed that Mr Willis was behind the council refusing his request. The Complainant said that since 2000 Mr Willis was always spying on him and looking into the property.

44. It was very clear to the Tribunal that the Complainant had strong motivation to pursue a false claim against Ms Wilson and Mr Willis, to cause them distress, hopefully obtain some of Ms Wilson’s land and cause serious problems for Mr Willis.

45. As indicated given the Tribunal’s finding that the relationship between Ms Wilson and Mr Willis did not start until September 2002 the Tribunal requires cogent independent corroboration before being satisfied of any matters of substance being asserted by the Complainant.

46. The Complainant gave evidence about 3 incidents which were the subject of his claim. The evidence relevant to those incidents was as follows:

25 March 2004

47. The Complainant was working in the garden and heard a noise and saw Mr Willis throwing some blocks or bricks into the garden of 33A Mellifont Street. The Complainant said he shouted to Mr Willis "what do you think you are doing" and moved closer. Mr Willis continued and it was damaging the plants. The Complainant told Mr Willis that he was trespassing and Mr Willis told the Complainant that the blocks in the gutter could damage his car and they had a heated discussion which was loud and nearly became physical.

48. The Complainant left and went inside and spoke to the cleaner, Sara Montavlo who was inside with the students who were tenants of 33A Mellifont Street, who were Kevin and George Ochillo and Atou Mohl. The Complainant said he told them what had been happening. He then went back outside and started loading material into his ute. He then saw Mr Willis and Ms Wilson walk towards him onto his property and Mr Willis put his index finger on the Complainant’s chest and said "you ghastly wog" and Ms Wilson also called him a ‘wog’ and told him to go back to where he came from. The Complainant ordered them off his property and as they left Mr Willis called him a wog again.

49. The Complainant said he felt humiliated and upset by the incident.

50. The Complainant called Sara Montavlo and Kevin Ochilo in support of this incident. Ms Montavlo gave evidence that she had been cleaning for the Complainant for approximately 6 years, that she was a friend of the Complainant and friendly with his family. That on 25 March 2004 she was inside 33A Mellifont Street doing some cleaning and heard a noise, she looked out the window and saw a man throwing concrete blocks, she could see that the Complainant and the man were arguing. She said that the Complainant came inside and then went back outside and she then saw Mr Willis and Ms Wilson argue with the Complainant. Mr Willis was pointing his finger at the Complainant’s chest and called him a ghastly wog and she heard Ms Wilson say "you wog".

51. Ms Montavlo was not an impressive witness. She said she was in the living room with two of the tenants but could only describe them as being ‘chocolate’ colour and short like her and they both had short hair.

52. Although she regularly cleaned at the house she could not describe the tenants in any further detail. Further Ms Montavlo gave evidence that she is Spanish and people have said things to her like "ghastly" and "go home". This evidence tends to suggest that she has been marginalised in the past and perhaps through her friendship with the Complainant and his family is sympathetic to his position. The Tribunal could not be satisfied that Ms Montavlo actually saw and heard what was alleged to have been said by Mr Willis and Ms Wilson and that it may be through some misplaced loyalty to the Complainant and due to her own experiences of poor treatment, gave evidence to support the Complainant.

53. Kevin Ochilo gave evidence that he had lived at 33A Mellifont Street for 3 years and knew the Complainant because he was the landlord. He said that he recalled on 25 March 2004 Ms Montavlo was at the house cleaning and he heard an argument between the Complainant and Mr Willis. He said he looked out the window and heard Mr Willis call the Complainant "a wog".

54. Under cross-examination Mr Ochilo could only describe Ms Montavlo as "a woman" and no other details about her appearance. He also gave evidence that he had started living at 33A on 20 March 2004 and a copy of the lease was tendered and marked "R3". The lease purported to have started on 20 March 2004 but on closer inspection it was apparent that on each occasion that the 20.3.04 was written the figure ‘28’ had been altered to read ‘20’ which cast doubt on when the lease actually started. If it was in fact 28 March 2004 then it was open that Mr Ochilo was not even at the premises on 25 March 2004 as the lease was originally dated 28 March 2004.

55. Given Mr Ochilo’s poor recall of the incident, which only referred to Mr Willis calling the Complainant a wog and no mention of Ms Wilson, his inability to describe Ms Montavlo and the anomaly with the dates on the lease, the Tribunal was not in a position to rely on Mr Ochilo’s evidence and again the Tribunal concluded that Mr Ochilo, as with Ms Montavlo, may have through some misplaced loyalty, given misleading evidence to support the Complainant.

56. Mr Willis gave evidence about this incident and in summary said the following:

• He wasn’t sure about the date, but recalled the incident.
• Drove home from work at approx. 5.30 pm.
• Saw two bricks in the gutter, moved them because dangerous to leave them there.
• The Complainant approached him, there was a verbal confrontation about the bricks, no use of the word "wog", walked away and went inside.
• Going out that night, made a decision to ignore the Complainant.
• Walked outside to go to their vehicle and the Complainant started abusing Ms Wilson calling her dumb and also a spastic. Neither of them went on his property, just kept walking and ignored the Complainant.
• Doesn’t use the term "ghastly".

57. Ms Wilson gave evidence about this incident and in summary said the following:

• She was at home, Mr Willis came inside after work and he was agitated. He told her there had been a problem with blocks or piece of timber in the gutter.
• They left the house to go out for the evening, there was verbal barrage from the Complainant, she didn’t recall what he had said.
• Neither of them made any racial comments, they didn’t go on his property and there was not any physical confrontation.

58. The Tribunal preferred the evidence of Mr Willis and Ms Wilson and was not satisfied that this incident occurred as described by the Complainant and the witnesses called by the Complainant in support were not persuasive and did not provide independent corroboration.

6 December 2005 Incident

59. The Complainant gave evidence that he was at 33A Mellifont Street with the students who were outside having a drink. At about 5.30 pm Mr Willis and Ms Wilson walked past 33A Mellifont Street and as they walked past they looked in our direction, they were laughing, put their heads down and said "look at wogs".

60. He and the others were disturbed by this racial performance, felt resentment and humiliated. The students with him were African.

61. Kevin Ochilo gave evidence about this incident and said that on 6 December 2004 some friends had come around and the Complainant was at their house also. He saw Mr Willis and Ms Wilson walking past and heard them say, "look at the wogs". This occurred at about 5-5.30 pm and they both said it.

62. Under cross-examination Mr Ochilo could not describe which direction Mr Willis and Ms Wilson came from and was not convincing.

63. Mr Willis and Ms Wilson gave evidence that this incident did not occur. The Tribunal is not satisfied that this incident occurred given that without independent corroboration the Tribunal is not prepared to accept the Complainant’s version and the evidence from Kevin Ochilo fell short of providing corroboration.

20 April 2005 Incident

64. The Complainant gave evidence that he went to 33A Mellifont Street at about 8am to do some gardening and he took the cleaner with him. Whilst at the house he saw Mr Willis over the road taking some photographs of the Complainant.

65. The Complainant shouted in an angry voice "what do you think you are doing". Mr Willis then came towards the Complainant and said "none of your business you dirty wog". Mr Willis then got into his car and left.

66. The Complainant said that he felt upset and the continuing abuse from the Respondent’s had made him sick and effected his nerves. He said he was first prescribed medication in 2005.

67. Ms Montavlo gave evidence about this incident and said that on 20 April 2005 the Complainant had picked her up from the bus stop and they had travelled to 33A Mellifont Street. It was about 8am and she saw Mr Willis taking some photographs on the opposite side of the road. Ms Montavlo said she heard the Complainant say to Mr Willis "what do you think you are doing" and she heard Mr Willis reply "none of your business dirty wog".

68. It maybe that Ms Montavlo has seen Mr Willis take photographs when she has been at the house cleaning but given the Tribunal’s earlier observations about Ms Montavlo’s evidence and her general unreliability the Tribunal prefers the evidence of Mr Willis.

69. Mr Willis gave evidence he had taken photographs for litigious reasons but not when the Complainant was present because he believed that would be provocative. Mr Willis denied he took any photographs on 20 April 2005 but he have evidence about a confrontation with the Complainant that day.

70. Mr Willis said at approximately 8:20am on 20 April 2005 he was leaving to go to work and the Complainant called him over. The Complainant said that if Mr Willis didn’t put a representation to the Council against the Complainant’s proposed development then he would discontinue the civil proceedings. He said the property didn’t mean anything to Mr Willis and if they continue with civil proceedings then it’s the lawyers who make all the money. The exchange was civil and there was not any abuse.

71. Mr Willis sent an email to his legal representative at that stage detailing the confrontation and also wrote to the Council detailing the incident. The letter Mr Willis wrote was dated 26 April 2005 addressed to Petr Courtis who was the Director Development and Environmental Services Division and was marked ‘R6’.

72. In the fourth paragraph Mr Willis wrote:

"On Wednesday 20 April 2005 at approximately 8:20am the intimidation culminated with the owner of 33A Mellifont Street (Di Bennedetto) offering to cease all court proceedings on the condition that we did not lodge a representation in opposition to the two unit proposal."

As previously indicated the Tribunal is not prepared to accept the Complainant’s evidence unless there is some cogent independent corroboration and the Tribunal does not accept that Mr Willis was photographing the Complainant’s house on 20 April 2005 and referred to him as a ‘dirty wog’. The Tribunal prefers the evidence of Mr Willis which involved further intimidation by the Complainant in an effort to have his plans with Council proceed.

Incident relating to Mr Marriott

73. There was another body of evidence relied upon by the Complainant. The Complainant called a witness, Chris Marriott, who gave evidence that he had worked at 33A Mellifont Street during the first half of 2000. He was carting earth and rock from the property and was blocked in by a vehicle belonging to the people at 33 Mellifont Street.

74. He recalled the Complainant asked the female from 33 Mellifont Street to move the vehicle, she became excited and there was a heated exchange between the Complainant and the female. He didn’t hear all the conversation but he did hear the female call the Complainant ‘a little wog bastard’. Just after this comment was made the Police arrived and the female walked to her front door.

75. Whilst he worked at the 33A Mellifont Street he saw the female and a male coming and going. Under cross-examination Mr Marriott said that he saw the male more than once at Mellifont Street but that on the above occasion the male didn’t say anything but he was present.

76. The Complainant did not give any evidence about this incident but it appears according to Mr Marriott he was present and the Police were called.

77. Mr Willis’s only reference to this alleged incident was under cross-examination and he indicated that he had never seen Mr Marriott. Ms Wilson gave evidence that she hadn’t seen Mr Marriott before and denied any incident as described by Mr Marriott.

78. The Tribunal has found that the relationship between Ms Wilson and Mr Willis did not start until September 2002 therefore the incident described by Mr Marriott could not have involved the presence of Mr Willis which casts doubt on the veracity of his account and the Tribunal is not prepared to place any reliance on Mr Marriott’s evidence.

Jorge Monge Incident

79. The Complainant relied on a further body of evidence in support of his claim. The evidence related to an incident when a Mr Jorge Monge served a document on Ms Wilson on behalf of the Complainant. The incident occurred on 8 December 2004.

80. Mr Monge gave evidence that the Complainant had asked him to deliver a summons to Ms Wilson. He agreed and went to 35 Mellifont Street, knocked on the door, Mr Willis answered and then Ms Wilson came towards the door. Mr Monge went to hand over the summons and Mr Willis told her not to take it. The summons fell on the floor and Mr Monge left. Mr Willis and Ms Wilson followed him and Ms Wilson put her hand on the gate to try and prevent Mr Monge from leaving and wanted to know his name and who he was working for. He didn’t tell her his name just that he was serving the summons and left.

81. Mr Monge alleged that on leaving Mr Willis said words to effect that Mr Monge was "just another wog like Dino".

82. Mr Willis and Ms Wilson gave evidence about this incident and in summary they agreed that Mr Monge had attended to serve the summons but there were not any comments about Mr Monge being a wog, just like the Complainant and that during the course of the incident Mr Monge assaulted Mr Willis. Mr Willis and Ms Wilson made statements to the Police which were tendered and marked R5 and R6.

83. Mr Willis made a complaint of assault against Mr Monge but the matter was not proceeded with because Mr Monge moved interstate and the matter was relatively minor which did not warrant the Police pursuing the matter.

84. Mr Monge gave evidence that he spoke with a Police Officer about the matter, Sergeant Craig Joel. Mr Monge asserted that Sergeant Joel had advised him that the complaint of assault was ridiculous and was not going anywhere. Mr Monge also said that he told the Police Officer that Mr Willis had said, "you’re a wog just like Dino".

85. Sergeant Joel was called on behalf of the Respondent’s. In summary he gave the following evidence:

• On 22 November 2004 he received a Complainant of assault and the alleged offender was Mr Monge.
• On 10 March 2005 he spoke to Mr Monge on the phone and asked him to come to the Police Station. Mr Monge agreed and they arranged to meet on 16 March 2005.
• Mr Monge did not attend, on 16 March 2005.
• Sergeant Joel phoned Mr Monge who advised him that he had returned to Victoria and would not participate in an interview.
• Sergeant Joel spoke with Mr Willis and advised him of the progress.
• Sergeant Joel never advised anyone that he doubted the veracity of Mr Willis’s allegation.
• He had no memory of Mr Monge telling him that Mr Willis had made a comment about Mr Monge being a wog just like Dino.
• Mr Monge was not charged but Sergeant Joel never advised Mr Monge that he didn’t believe Mr Willis. The decision not to proceed was based on other considerations.

86. Based on the above evidence the Tribunal did not find Mr Monge to be an impressive witness and preferred the evidence of Sergeant Joel. The Tribunal is not satisfied that Mr Willis made any comment to Mr Monge to the effect that he was a wog just like Dino.

87. There is another body of evidence in the case. It relates to the Respondent position that not only had they not racially discriminated against the Complainant but the reverse was the case, i.e. that the Complainant was abusive and offensive to the Respondents. In particular Ms Wilson alleged that the Complainant would refer to her as ‘dumb Abo’ and spastic’.

88. Ms Wilson gave evidence that she identifies as an Aboriginal and is descendant of Mamlugana Toowolwong tribe.

89. Ms Wilson said that she moved into 35 Mellifont Street in February 2000. That late 2000 into early 2001 the Complainant spoke to her over the fence. He said words to the effect "no wonder your husband left you, you fucking bitch, you dumb Abo, get back to New Norfolk you spastic".

90. Ms Wilson said that this upset her and told the Complainant that her husband didn’t leave her, she left him and walked inside.

91. On another occasion in the latter part of 2005 Ms Wilson was walking back from the shop on the corner of Newdegate Street and the Complainant called her ‘a fucking Abo bitch’. Ms Wilson continued walking and the Complainant continued with the verbal barrage.

92. Ms Wilson indicated that she does not know how the Complainant would know about her Aboriginality but during some civil proceedings that her and Mr Willis had with the Complainant there was mention in some of the documentation a reference to the Complainant being abusive and referring to Ms Wilson’s aboriginality.

93. The evidence before the Tribunal was that the civil proceedings began with a claim filed in the Magistrate’s Court on 30 September 2004 and ultimately settled on 7 July 2005.

94. Mr Willis gave evidence that he had heard the Complainant call Ms Wilson a ‘dumb Abo’ and ‘spastic’. He said he heard the Complainant say this on a number of occasions. He also said that the Complainant had said to him the words to the effect that he knew why Ms Wilson’s husband left because she was a ‘dumb Abo’ and ‘spastic’. He didn’t tell Ms Wilson this because he knew it would upset her.

95. Mr Willis also said that during a mediation conference, as part of some civil proceedings, he raised that the Complainant had been abusive towards Ms Wilson.

96. The Complainant maintained that he did not abuse Ms Wilson and that the first he knew of Ms Wilson’s aboriginality was when he read her witness outline filed with the Tribunal for these proceedings.

97. The Respondents contended that part of the motivation for this false claim against them was that the Complainant was aware through the civil proceedings that the Respondents were alleging ‘racial abuse’ and the Complainant filed the anti-discrimination claim to combat the prospect of a future claim against the Complainant by the Respondents.

98. As indicated the Tribunal has found that the Complainant has been prepared to mislead the Tribunal about matters relating to the Respondents.

99. It appears to the Tribunal that it is highly likely that the Complainant has racially abused Ms Wilson. The Complainant did maintain that he had not racially abused Ms Wilson and that he didn’t know of her aboriginality until he read her statement outline for these proceedings and that was further supported by the exchange with Ms Wilson on 6 December 2006 when he raised her aboriginality because up until then he didn’t realise she identified as Aboriginal.

100. Prima face there is some merit to the Complainant’s position but given the Complainant’s preparedness to mislead the Tribunal, it is equally open that he, through some other means, had the knowledge of Ms Wilson’s aboriginality prior to her filing her witness outline and used it in a derogative manner towards her.

101. There is not a counter claim by Ms Wilson as to this racial abuse however the Tribunal is satisfied that the Complainant, as contended by the Respondents, may have sought to advance his claim of racial abuse because he knew that he had racially abused Ms Wilson and this may be a motive to pursue a false claim against the Respondents.

102. Based on the findings by the Tribunal the complaint pursuant to s99(1) of the Anti-Discrimination Act 1998 is unsubstantiated and the complaint is dismissed.

103. Mr Mackie, on behalf of the Respondents, submitted that the Tribunal could also dismiss the complaint on the basis that it is vexatious. He submitted that it is apparent the Complainant has misled the Tribunal and enlisted others to give false evidence to the Tribunal. Given that the complaint is unsubstantiated it is not necessary to determine whether the complaint should have been dismissed because it is vexations. However, given the findings of the Tribunal in relation to the Complainant’s credit there may have been some merit to that proposition.