Burns v Sunol
[2014] NSWCATAD 192
•10 November 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 192 Hearing dates: 30 July 2014 Decision date: 10 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President
J Newman, General Member
N Hiffernan, General MemberDecision: Mr Sunol is to pay Mr Burns $2,500 for breaching orders 3 and 4 of the Tribunal's orders dated 14 May 2014.
Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL -enforcement of orders made under the Anti-Discrimination Act 1977 - homosexual vilification and victimisation - non-compliance with conduct orders - remedies for breach of orders Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)Cases Cited: Burns v Sunol [2014] NSWCATAD61 Category: Principal judgment Parties: Garry Burns (Applicant)
John Sunol (Respondent)Representation: G Burns (Applicant in person)
J Sunol (Respondent in person)
File Number(s): 131062
reasons for decision
Introduction
On 14 May 2014 the Tribunal found that complaints under the Anti-Discrimination Act 1977 (NSW) by Mr Burns against Mr Sunol had been substantiated. The Tribunal ordered that Mr Sunol apologise to Mr Burns and remove homosexually vilifying material and material which victimised Mr Burns from websites controlled by him. The Tribunal also ordered Mr Sunol to refrain from publishing further material "to the same or similar effect": Anti-Discrimination Act s 108(2)(b). In default of compliance with those orders within 14 days, the Tribunal ordered that Mr Sunol pay Mr Burns $2,500: Anti-Discrimination Act, s 108(9).
The Tribunal also ordered Mr Sunol to pay damages of $1,000 for breaching the homosexual vilification provisions and $2,000 for breaching the victimisation provisions of the Anti-Discrimination Act. Mr Sunol has not complied with these orders but the Tribunal does not have power under s 108 to order a person to pay further damages if he or she does not pay the amount the Tribunal originally ordered. The Tribunal's orders in Burns v Sunol [2014] NSWCATAD61 (the Tribunal's first decision) are set out in full at the end of these reasons.
The matter was re-listed on 9 July 2014 at 2 pm to determine whether Mr Sunol had complied with the Tribunal's conduct orders, that is, orders 3, 4, 5 and 9. We are satisfied that Mr Sunol has partially complied with order 3 because he has removed the unlawful material identified in Orders 1 and 2. The question remains as to whether he has removed all material "to the same or similar effect" on any website controlled by him. We are satisfied that Mr Sunol has complied with orders 5 and 9 which involve apologising to Mr Burns on Mr Sunol's website and by letter. Mr Burns submitted that Mr Sunol had not complied with order 4, to refrain from publishing further homosexually vilifying or victimising material "to the same or similar effect" on any website controlled by him.
Issue
The issue in these proceedings is whether Mr Sunol is in default of orders 3 and 4 of the Tribunal's first decision. The relevant parts of those orders are highlighted:
Within 14 days of the date of this decision, Mr Sunol is to remove the unlawful material identified in Orders 1 and 2 from every website controlled by him including Facebook and all material to the same or similar effect.
Mr Sunol is to refrain from publishing the material described in Orders 1 and 2 or material to the same or similar effect, on any website, controlled by him.
If Mr Sunol is in breach of either of these orders, the Tribunal will make a new order that he pay Mr Burns further damages of $2,500.
Legislative provisions
The provision of the Anti-Discrimination Act which makes homosexual vilification unlawful is s 49ZT:
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
A public act is defined in s 49ZS as follows:
"public act" includes:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and
(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
Certain exceptions are set out in s 49ZT(2);
(2) Nothing in this section renders unlawful:
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
The provision making victimisation unlawful is s 50:
(1) It is unlawful for a person ( "the discriminator" ) to subject another person ( "the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
Section 108 of the Anti-Discrimination Act sets out the remedies the Tribunal may order if a complaint is substantiated:
(1) In proceedings relating to a complaint, the Tribunal may:
(a) dismiss the complaint in whole or in part, or
(b) find the complaint substantiated in whole or in part.
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,
(g) decline to take any further action in the matter.
(3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.
(4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.
(5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
(6) If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.
(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.
Publications which the Tribunal found to be unlawful
In order to comply with the Tribunal's orders Mr Sunol was obliged to refrain from publishing material "to the same or similar effect" as the vilifying and victimising material identified by the Tribunal until 9 July 2014, the date of the second hearing. It is not sufficient if the material amounts to vilification or victimisation. The subject matter or content must also be the same or similar to the publications which the Tribunal found to unlawful.
The material which the Tribunal found to vilify homosexuals was:
(1) Publication 1 containing an allegation that child abuse, drug dealing and pornography are rampant at gay and lesbian public events, such as the Sydney Gay and Lesbian Mardi Gras and the Sleaze Ball. Mr Sunol also maintains that these events are 'run by ... drug dealers and pornography dealers." Mr Sunol calls for such events to be investigated, closed down and for the perpetrators to be "brought to justice."
(2) Publication 5 stating that LGBT groups are "very evil" and "wicked" and that God will destroy them.
(3) Publication 7 states that LGBT and "rainbow" groups are "very evil" and "an extremely nasty piece of garbage". In this publication, Mr Sunol also says that he "backs" the video of Fred Phelps' group, the Westboro Baptist Church, rather than LGBT groups and "rainbow" groups. Publication 7 contains a hyperlink to a YouTube video prepared by members of the Westboro Baptist Church. The comments in the video include repeated incantations that, "God hates fags" and "All homosexuals should die".
The complaint of victimisation was substantiated in relation to eleven publications: Publications 1, 3-11 and 13. The Tribunal concluded in the first decision that those publications contain abusive and derogatory language directed to Mr Burns. Mr Sunol calls Mr Burns a "thief" and accuses him of stealing money from him. He also accuses Mr Burns of abusing the court system, fraudulently taking him to the Tribunal and making up lies about him in the Tribunal. Mr Sunol calls Mr Burns "a con man and a mongrel" and compares him to the North Korean dictator Kim Jong-un, accusing him of being "very unstable" and "a very dangerous man". In Publication 5, Mr Sunol calls Mr Burns a "liar". In Publication 6, Mr Sunol calls him "an unethical mongrel who abuses the law all of the time".
The Tribunal also concluded that these eleven publications all contain the kind of language that would cause a reasonable person to believe that Mr Burns would feel insulted or offended. They would give rise to an "injury" in the form or offence or insult, and therefore cause Mr Burns to suffer a detriment.
Alleged breaches of orders 3 and 4
Introduction
Mr Burns tendered six publications from websites controlled by Mr Sunol which he printed out during the period from 11 June 2014 to 9 July 2014. He submitted that those publications contain material which was either material that Mr Sunol posted after the hearing and that he should not have posted or material that was already on websites controlled by Mr Sunol and that should have been removed in compliance with the Tribunal's orders. We will consider each of those categories in turn. Mr Sunol's words have been transcribed exactly as he wrote them.
Publishing similar homosexually vilifying material after 14 May and before 9 July
Exhibit B is a post on Mr Sunol's BlogSpot by Hojuruku (Luke McKee) on 23 May 2014. It was still on the website on 8 June 2014. While Mr Sunol did not write the material, he admits that it constitutes homosexual vilification and that it was posted on his website. He told the Tribunal that he had overlooked it and would take it straight down.
The fact that Mr Sunol has allowed homosexually vilifying material to be posted is not necessarily in breach of Order 4. The question for the Tribunal is whether it is a publication 'to the same or similar effect' as the material which the Tribunal found to constitute homosexual vilification in the first decision. It does not relate to the same subject matter, nor does it use the same or similar words to those found to be in breach in the first decision. In our view, this publication is not in breach of order 4.
Exhibit E is a publication on Mr Sunol's BlogSpot on 2 July 2014. The information relates to a decision of the Administrative Decisions Tribunal in relation to another complaint of homosexual vilification: Burns v Corbett [2013] NSWADT 227 (15 October 2013). Mr Sunol characterises that decision as the Tribunal ordering Ms Corbett to apologise for "opposing paedophile rights." Mr Sunol writes:
This woman stood for Bob Katter's party in North Queensland but was a Victorian candidate, the man who took her to NCAT has also taken me on numerous occasions."
The hyperlink opens to an attachment with a photograph of Ms Corbett and the comment, "It would seem this honourable lady being assailed by sodomites, could do with alternative information and guidance, so as to review action and direction."
Mr Burns submitted that this publication and especially the reference to "opposing paedophile rights" is an example of Mr Sunol publishing homosexually vilifying material when ordered by the Tribunal not to do so. He submits that the Tribunal's decision was not about protecting paedophiles.
Mr Sunol admits writing the material and putting links to articles. He adds that he may or may not agree with the information in the link. Mr Sunol also points to the following "disclaimer" on his blog:
This is for those who follow me and anyone else in the general public to read, any comments made on this is done purely to show the people who read this blog what I am talking about. Nothing is to be deemed vilification, slander or defamation or any other such criminal activity.
In case Mr Sunol is under any misconception, this disclaimer does not override the operation of the Anti-Discrimination Act.
Exhibit E is not an accurate summary of the Tribunal's decision in Burns v Corbett, the question is whether it is a publication 'to the same or similar effect' as the material which the Tribunal found to constitute homosexual vilification in the first decision. It does not relate to the same subject matter, nor does it use the same or similar words as those found to be in breach in the first decision. In our view, this publication is not in breach of order 4.
Publishing similar victimising material after 14 May and before 9 July 2014
As well as failing to remove victimising material, Mr Burns submitted that Mr Sunol has published further material which is in breach of s 50 of the Anti-Discrimination Act.
Exhibit D is a publication on Mr Sunol's BlogSpot dated 8 July 2014. It begins with commentary in relation to Pope Francis "begging forgiveness" from victims of clergy sex abuse and goes on to comment about the conviction of Rolf Harris. Mr Sunol then writes:
. . .the person taking me on victimization and vilification is a scammer and telling lies just to get his loot which he has not compassion for and tells lies
The hyperlink opens to the Tribunal's first decision on Mr Burns' blog page which identifies the person Mr Sunol is referring to as Mr Burns.
Referring to Mr Burns as a "scammer" and as "telling lies" is victimising conduct "to the same or similar effect" as that which the Tribunal found to be unlawful in the first decision. In our view, the publication is in breach of order 4.
Not removing similar victimising material by 28 May 2014
Exhibit A is a publication Mr Sunol posted on 2 May 2013 on his BlogSpot. It was still there on 8 June 2014. It states that:
Gary is a straight plain out liar who uses victimization to justify his lies to the world when he is caught out or the person he attacks is attacking fights back.
He will undergo a similar fate on day as well.
In defence of his actions, Mr Sunol submits that:
To relieve myself of this frustration and anger I have towards him I point this out all through the way I write on my blogs. He has unjustly accused me of wrong doing which I am not guilty of and when I answer this in truth, he throws it back on me that I am victimising him when in reality I am not victimising him, he is victimising me and attacking me unjustly and corruptly.
Exhibit C contains two publications on Mr Sunol's twitter account dated 29 November 2012. In the first he writes that Mr Burns "told lies and tried to steal lots of money from me by the abuse of the courts systems". In the second he writes that "Gary is a thief."
Mr Sunol's response to the fact that the Tribunal ordered him to remove this kind of material was that it is "impossible to find" but that when he does find it, he takes it down.
Exhibit F is a publication on Mr Sunol's BlogSpot on 30 June 2013. The text includes the following:
Those taking me to court can like it or lump it as they have no choice over me re-setting the dates of this hearing next Friday. I have been sick in hospital and this cannot be helped. I am not going to let the man who took me to court win this or tell me what to do. This man is only a liar and a trouble maker who abuses the system all of the time.
Mr Sunol states that it has been 12 months since he wrote this material and no-one has told him to take it down. He queried why Mr Burns had waited until now to bring it to the Tribunal's attention but said he would take it down.
We accept that Mr Sunol feels justified in abusing Mr Burns for having brought proceedings against him, has difficulty finding the abusive messages and has promised to remove the offending publications. But these excuses do not change the fact that the publications to which we have referred are "to the same or similar effect" as the publications that the Tribunal found to constitute victimisation in the first decision. Mr Sunol uses similar words to describe Mr Burns including "liar," "thief" and "troublemaker". These words are abusive and inflammatory. A reasonable person reading these publications would consider them to give rise to an "injury" in the form or offence or insult, and therefore to cause Mr Burns to suffer a detriment. We are satisfied that his references to 'accusing me of victimisation" demonstrate that the fact that Mr Burns has brought proceedings before this Tribunal is at least one of the reasons for Mr Sunol's abuse of Mr Burns.
In our view these publications are in breach of order 3.
Conclusion
We order Mr Sunol to pay Mr Burns $2,500 for breaching orders 3 and 4 of the Tribunal's orders dated 14 May 2014.
Mr Burns submitted that the Tribunal should consider referring Mr Sunol's non-compliance with the Tribunal's orders to the Supreme Court as contempt.
Part 5 of the Civil and Administrative Tribunal Act 2013 (NSW) deals with enforcement of the Tribunal's orders. Section 72 makes it an offence to contravene "designated" orders of the Tribunal:
(1) A person must not, without lawful excuse, contravene a designated order of the Tribunal.
Maximum penalty:
(a) in the case of a corporation-100 penalty units, or
(b) in any other case-50 penalty units or imprisonment for 12 months, or both.
A "designated order" includes an order includes:
(b) an order of the Tribunal made under section 108 (2)(b), (c), (d) or (e) of the Anti-Discrimination Act 1977 or an interim order of the Tribunal made under that Act,
Orders 3 and 4 of the Tribunal's first decision were each made under s 108(2)(b) of the Anti-Discrimination Act and are therefore designated orders. But in this decision the Tribunal has converted those orders into orders for the payment of damages. The payment of damages is not a designated order and non-compliance does not constitute an offence under s 72. Consequently the possibility of Mr Sunol being prosecuted for contravening orders 3 or 4 is no longer open.
As well as making it an offence to breach designated orders of the Tribunal, the NCAT Act gives the Tribunal power to impose a "civil penalty" on a person who contravenes other (non-designated) orders. Section 72(3) provides that:
(3) A person must not, without reasonable excuse, contravene any other order of the Tribunal made under this Act or any other legislation
Civil penalty provision
An application for a civil penalty must be brought by the Minister or by "a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose": s 75. For an individual, the amount of the civil penalty must not exceed $11,000. Mr Burns has not sought the permission of the Minister to apply for a civil penalty to be imposed on Mr Sunol for the non-payment of damages orders.
If Mr Burns wishes to enforce the damages orders that the Tribunal has made, he may request that a registrar certify the amount ordered to be paid by the Tribunal and file that certificate in a court having jurisdiction to give judgment for a debt of that amount: NCAT Act, s 78. As Mr Burns has a remedy for Mr Sunol's non-compliance with the Tribunal's orders, all of which are now orders for damages to be paid, we do not propose to refer the matter to the Supreme Court for determination.
Orders of the Tribunal made on 14 May 2014
(1) The following publications constitute homosexual vilification: Publication 1 (bold font), Publication 5, Publication 7 (excluding the publication of the YouTube video).
(2) The following complaints of victimisation are substantiated: Publication 1 and Publications 3-11.
(3) Within 14 days of the date of this decision, Mr Sunol is to remove the unlawful material identified in Orders 1 and 2 from every website controlled by him including Facebook and all material to the same or similar effect.
(4) Mr Sunol is to refrain from publishing the material described in Orders 1 and 2 or material to the same or similar effect, on any website, controlled by him.
(5) Within 14 days of the date of this decision, Mr Sunol is to post the following apology on every website controlled by him:
This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014.
On various dates between 7 November 2012 and 7 May 2013, I published statements on a website controlled by me: several comments concerning homosexuality and homosexual people.
On 14 May 2014 NCAT held that my statements amounted to unlawful homosexual vilification. NCAT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality.
I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.
(6) In default of compliance with Orders 3, 4 or 5, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.
(7) Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,000 for the homosexual vilification.
(8) Within 28 days Mr Sunol is to pay Mr Burns $2,000 for the victimisation.
(9) Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns as follows:
Mr Gary Burns
PO Box 77
PADDINGTON NSW 2021
Dear Mr Burns
The NSW Civil and Administrative Tribunal, in a decision dated 14 May 2014 entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful.
I offer my apologies for that behaviour.
Yours faithfully
John Sunol
(10) In default of compliance with Orders 7, 8 or 9 within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.
(11) This matter is to be re-listed on 9 July 2014 at 2pm to determine whether Mr Sunol has complied with these Orders.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 10 November 2014