Casey v Blume [2012] QCAT 627

CITATION: Casey v Blume [2012] QCAT 627 PARTIES: Gladys Casey (Applicant) v Christopher Blume (Respondent) APPLICATION NUMBER: ADL021-12 MATTER TYPE: Anti-discrimination matters HEARING DATE: 8 November 2012 HEARD AT: Brisbane DECISION OF: Jeremy Gordon, Member DELIVERED ON: 21 November 2012 DELIVERED AT: Brisbane ORDERS MADE: (1) Christopher Blume is ordered to pay Ms Gladys Casey the sum of $10,000 compensation for sexual harassment and vilification on grounds of race. This sum includes interest and allowable losses. This sum is payable immediately. (2) Christopher Blume is ordered not to make any remark with sexual connotations relating to Gladys Casey with the intention or effect of offending, humiliating or intimidating her. (3) Christopher Blume is ordered not to engage in any unwelcome conduct of a sexual nature in relation to Gladys Casey. (4) Christopher Blume is ordered not to by a public act, incite hatred towards, serious contempt for, or severe ridicule of Gladys Casey on the ground of race or gender. (5) Orders 2, 3 and 4 above shall continue in force until 21 November 2013. CATCHWORDS: SEXUAL HARASSMENT – RACIAL VILIFICATION – whether proved – correct level -- 1 of 8 -- 2 of compensation Anti-Discrimination Act 1991, ss 119, 124A, 209 Casey v Flanagan [2011] QCAT 320 Ramsay v Pigram (1968) 118 CLR 271 Alexander, Myles, Anderson and Khan v Aoun [1996] QADT 20 Alexander v Home Office [1988] 2 All ER 118 APPEARANCES and REPRESENTATION (if any): APPLICANT: Gladys Casey RESPONDENT: No appearance REASONS FOR DECISION [1] Gladys Casey has suffered abuse and vilification on the citizens band radio. [2] Since the end of 2008 one of the perpetrators has been Christopher Blume, the respondent to this claim. The allegation is that Mr Blume has frequently referred to Ms Casey over the citizens band network in derogatory terms using explicitly sexual and racist language. This included encouraging listeners to attend Ms Casey’s home for sex. He also published a picture of her and her vehicle on YouTube. [3] Mr Blume has chosen not to appear at the hearing despite being properly served with the proceedings and of the hearing date. To the extent that Mr Blume has sexually harassed her and subjected her to racial vilification she brings this claim for compensation relying on provisions in the Anti- Discrimination Act 1991. Similar claim against Mr Flanagan [4] Ms Casey brought a similar claim against Paul Flanagan and this was heard in QCAT on 21 and 22 June 2011, with a decision delivered on 8 July 20111 in which Mr Flanagan was ordered to pay Ms Casey $5,000 as compensation for unlawful discrimination. Mr Flanagan was found to have conducted himself very similarly to the allegations made in this claim against Mr Blume. It was suggested in that claim that Mr Flanagan encouraged others including Mr Blume to do the things now alleged against him. Mr Blume gave evidence in that case and denied that he had done these things and denied that Mr Flanagan had encouraged him to do so. The member who heard the case disbelieved Mr Blume and found that he had done the things alleged. In turn, a finding was made against Mr Flanagan that he had encouraged Mr Blume to do these things. 1 Casey v Flanagan [2011] QCAT 320. -- 2 of 8 -- 3 [5] One of the issues before the member in the case against Mr Flanagan, is exactly the issue which I have to decide in this case. This does not however mean that I am bound to accept the findings in the Flanagan case. This is because Mr Blume was not a party to that case and so there is no issue estoppel2. Indeed, it seems to me that if it were not for the relaxed rules of evidence in QCAT3 I should not have regard to the findings of the member in the Flanagan decision at all, since it is evidence only of the opinion of the member. However, the Flanagan decision does recite some factual matters which I find helpful. And any admissions made by Mr Blume when he gave evidence in that case, would be proper evidence in this. The approach I propose to take therefore is to rely on the Flanagan decision to provide some factual background and evidence of admissions, but I shall consider afresh the central question whether Mr Blume carried out what he is accused of. [6] It would have been better for Ms Casey’s claim against Mr Blume to have been heard at the same time as her case against Mr Flanagan, but I am not minded to say that her claim against Mr Blume before me is an abuse of process. The reason why they were not joined appears to be a matter of timing. The facts [7] Ms Casey is a 63 year old female from Yugoslavia. She spent many years working in the security industry. In that industry she used mobile radio equipment operating on a dedicated band. [8] She also used other radio equipment operating on the citizens band channels to communicate with her friends and generally with other radio users. She used the repeater network which was capable of operating over longer distances. By its very nature, radio conversation on these channels could be overheard by anyone in range of a repeater with the right equipment and with an appropriate licence. [9] Proof of the matters complained of by Ms Casey comes from her records of talk on the network and transcriptions of two voice recordings she has made. Inevitably she presents this evidence as examples only of what was being said. She says there were many other times when similar things were said which she has not made a note of or recorded. And she suspects there were other times when things were said and she was not listening to the network at all. [10] I have some difficulty with this because on my direct questioning about the most recent times when Mr Blume may have said anything on the network against she was very vague and also inconsistent. To some extent I have made allowance for the fact that English is not Ms Casey’s first language. 2 Ramsay v Pigram (1968) 118 CLR 271. 3 Section 28(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009. -- 3 of 8 -- 4 [11] I am satisfied the following matters which have been proved to me by Ms Casey on the balance of probabilities. [12] On 10 March 2009 there was a conversation over the network between various correspondents. Mr Blume was one of these people. The following are those passages from the conversation on that day which had particular sexual or racial connotations: (a) On the request of one correspondent “Kelvinator” for “cock suck”, Mr Blume gave Ms Casey’s address and telephone number. (b) Mr Blume said “I am going to fuck Gladys its fuckwit Friday: Gladys I’m going to be at your place in 20 minutes”. (c) Upon a correspondent saying that he wanted to see Ms Casey, Mr Blume gave out Ms Casey’s telephone number suggesting that the correspondent should call her and get a “fuck for free”. (d) When the conversation returned to Ms Casey, Mr Blume said “she is barking like dog and a prostitute”. (e) When a correspondent said “how much would you give me to fuck her”, Mr Blume said “we will talk about that”. (f) Mr Blume invited two correspondents to Ms Casey’s house on Friday. (g) Mr Blume stated that he was paid $100 “to ring Gladys she is dago, she’s singing dago wog slut”. (h) Mr Blume stated that he was “going to make more wars for her dago wog”. [13] On 10 August 2009 over the network Mr Blume said “I’m going to make her life worse till she’s dead. How much you give to fuck her.” This was a reference to Ms Casey. [14] On 17 August 2009 over the network Mr Blume said “I am going to Eagleby to see Gladys for a quickie ..” then he gave her address and telephone number. [15] On three separate occasions in 2009, over the network: (a) Mr Blume said “Gladys and Bindi are lesbians”. Bindi is a reference to a female friend of Ms Casey. (b) Mr Blume gave Ms Casey’s address and telephone number and the registration of her car, and said “go fuck Gladys this is fun, she’s good at that”. -- 4 of 8 -- 5 (c) Mr Blume gave out Ms Casey’s telephone number. [16] On 4 November 2009 over the network Mr Blume got his four year old daughter to call Ms Casey a “wog”, “slut”, “dago”, “dago-wog” and a “gypsy”. [17] On 2 December 2009 over the network Mr Blume said that he could not get her to suck cock, and he gave out Ms Casey’s address and telephone number. [18] On 16 March 2010 Mr Blume again gave Ms Casey’s address over the network. [19] There were then no more incidents but as the Flanagan case approached they started again with Mr Blume on 16 March 2011 and 11 April 2011 giving Ms Casey’s address again over the network. [20] On 13 April 2011 Ms Casey made a complaint to the Magistrate sitting in Beenleigh of all matters up to that date, and on 23 June 2011 the Magistrate ordered Mr Blume to keep the peace and be of good behaviour towards her for 12 months. He was also ordered to remove any YouTube material that he had posted in relation to her. [21] Mr Blume was not present at the hearing in the Magistrates Court. On 24 June 2011, over the network Mr Blume called Ms Casey an “import”, and the following day he called her a “gypsy” and a “wog”. [22] More recently Ms Casey has intentionally refrained from listening on the radio because she does not wish to hear similar material. She obviously finds it stressful and upsetting. Although she suspects that Mr Blume continues in the same vein and has heard from friends that this is so, she was extremely vague about this and inconsistent as well. Her evidence about a continuing campaign is insufficient for me to make a finding that this is happening, except for two further incidents which she has noted in Exhibit A1 as follows: (a) On 12 July 2012 Mr Blume said over the network “Hello Gladys fucking wog slut dago from Beenleigh”. (b) On 19 July 2012 he said over the network (referring to Ms Casey) “dago wog slut from Beenleigh”. [23] The comments made by Mr Blume over the network clearly amount to sexual harassment, and come within the definitions of such harassment in section 119 of the Anti-Discrimination Act 1991 – making remarks with sexual connotations relating to another person and also engaging in other unwelcome conduct of a sexual nature in relation to another person. In order to be harassment under the Act it is necessary for the person engaging in the conduct with the intention of offending, humiliating or -- 5 of 8 -- 6 intimidating the other person or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. It is clear from the words used and the circumstances of their use that Mr Blume intended to offend, humiliate or intimidate Ms Casey. If he didn’t then he should have realised that it would do so. [24] The comments made by Mr Blume over the network also amount to vilification on the grounds of race. In the Act, “race” includes descent or ancestry, ethnicity or ethnic origin and also nationality or national origin. As a person from Yugoslavia, Ms Casey had a defined ethnic or national origin. But the perpetrator of racial vilification does not need to understand precisely the ethnic or national origin of his victim. The words used by Mr Blume indicate that he made some of his comments on the grounds of race. On my finding he would not have used those words towards someone who was, for example, a second or third generation Australian. I am satisfied that calling Ms Casey an “import”, “gypsy”, “dago” and “wog” on the balance of probabilities had the effect of inciting contempt for, or severe ridicule of, Ms Casey on the ground of race. [25] Ms Casey also complains about pictures of her and her car being placed on Mr Blume’s YouTube website. There was a video uploaded on 13 July 2009 called “Hello Gadget” (gadget being one of the radio correspondents). There were also images posted on 2 December 2009. In the radio conversation on 10 March 2009 Mr Blume admits posting these. However, there is no evidence showing that these postings had any sexual or racial connotations so as to be a contravention of the Anti-Discrimination Act 1991. [26] The complaint to the Anti-Discrimination Commission in respect of matters up to the middle of 2009 was received on 23 September 2009. In so far as any matter I have dealt with above occurred after that complaint I give leave for the complaint to be amended without re-service so that QCAT has jurisdiction over all matters complained of. The correct order to make [27] Ms Casey asks for a restraining order against Mr Blume. I am satisfied that Mr Blume has continued his campaign against her into 2012 and unless restrained having regard to past history of this matter it is likely to continue after he hears of the order made against him in this claim. In the circumstances I make the restraining order set out in these reasons. This is under section 209(1)(a) of the Anti-Discrimination Act 1991. [28] Apart from that order, the appropriate order is compensation under section 209(1)(b) of the Act for loss and damage caused by the discrimination. Section 209(5) states that “damage” in relation to a person includes the offence, embarrassment, humiliation, and intimidation suffered by the person. -- 6 of 8 -- 7 [29] In an appropriate case, an award can be made if personal injury has been suffered. Whilst Ms Casey did see a psychiatrist in July 2009 and was diagnosed as suffering “anxiety and depression” there is no evidence to show that she suffered a recognised psychiatric injury which would attract damages for personal injury. In any case there is no evidence that her problems at that time were caused by Mr Blume as opposed to others who at the time were causing problems for her including Mr Flanagan. [30] The level of award should therefore reflect the injury to feelings suffered by Ms Casey and the consequences to her of this. It is well recognised that an award of damages for discrimination should be based on the same principles as any other tort. When it comes to assessing the level of the award for injury to feelings, Australian courts4 have often referred with approval to an opinion expressed by May LJ in Alexander v Home Office [1988] 2 All ER 118 at 122: As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life. [31] One particularly distressing aspect of this case to Ms Casey I believe, was having her address put about as a place for sex, and on the evidence some truck drivers did attend her property or call her on the telephone asking for this. I am mindful the fact that in the transcripts of the radio conversations it was Mr Blume who took the lead in this. However, from the Flanagan case it can be seen that there was a sign in Archerfield advising drivers to go to her address for sex and she blamed Mr Flanagan for putting up this sign. It seems to me having read the radio transcript that the sign would have been more effective in sending drivers to her address than the discussion over the radio. The compensation for this matter should therefore be discounted by some degree. [32] In assessing the correct level of compensation it is important to try to isolate those matters which are a contravention of the Anti-Discrimination Act 1991 from other matters of concern and upset to Ms Casey which are not contraventions of the Act. In this claim Ms Casey can only be compensated in respect of contraventions of the Act. It is also important 4 For example, in Queensland: Alexander, Myles, Anderson and Khan v Aoun [1996] QADT 20. -- 7 of 8 -- 8 only to compensate Ms Casey in respect of contraventions by Mr Blume. At the time of the contraventions perpetrated by him, there were also campaigns being conducted against Ms Casey by others as can be seen from the Flanagan case. It is necessary to disentangle the upset and distress that she suffered over this time and to reach an appreciation of the extent to which it was caused by Mr Blume rather than by other people. [33] It is an aim in all cases of compensation to achieve consistency in awards. In the Flanagan case, the award was $5,000. Mr Flanagan was found to have encouraged others to campaign against Ms Casey and also to have carrying out the campaign directly himself at least until restrained by a Magistrates Court order. [34] Mr Blume’s case is more serious than the case against Mr Flanagan because it has continued for a longer period and so is more persistent. In my view the correct level of compensation to order Mr Blume to pay Ms Casey for these events is $10,000. This is to be paid immediately. [35] Ms Casey also asks for an order in respect of the fees she had to pay her solicitor for writing a letter dated 14 December 2009 to the police when she was seeking criminal redress against Mr Blume and Mr Flanagan. However, the complaints made in the letter were not of contraventions of the Anti-Discrimination Act 1991 and so it would be wrong to award any costs in relation to this. [36] Ms Casey asks for a costs order in relation to a medical bill of $586 in relation to a psychiatrist on the Gold Coast. I am not satisfied however, that she has shown that the need to visit the psychiatrist was as a result of a contravention of the Anti-Discrimination Act 1991 by Mr Blume. [37] The other claims for costs in the case are unclear and I decline to make a costs order in that respect bearing in mind Ms Casey was self-represented. -- 8 of 8 --