Burns v Sunol - [2014] NSWCATAD 192

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 Member
Decision:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Sunol

Details

AGLC: Burns v Sunol [2014] NSWCATAD 192
Case: [2014] NSWCATAD 192
Decision Date: 10 November 2014

CaseChat Overview and Summary

In the matter of Burns v Sunol, the Central Administrative Tribunal (CAT) was tasked with enforcing orders made under the Anti-Discrimination Act 1977 (ACT). Mr Burns brought a complaint against Mr Sunol, alleging that Mr Sunol had subjected him to vilification and victimisation due to his sexual orientation. The dispute centred on whether Mr Sunol had complied with conduct orders that were issued by the Tribunal following a previous determination. The Tribunal was required to decide if Mr Sunol had breached the orders and, if so, what remedies should be imposed.

The primary legal issues before the Tribunal were whether Mr Sunol had failed to comply with the conduct orders and, if so, what the appropriate remedies were. The Tribunal needed to examine the evidence provided by both parties to determine if there had been a breach of the orders. The orders in question required Mr Sunol to refrain from making further statements that were discriminatory or vilifying towards Mr Burns. The Tribunal considered whether Mr Sunol's actions constituted a breach of those orders and whether Mr Burns had suffered loss or damage as a result.

After reviewing the evidence, the Tribunal found that Mr Sunol had indeed breached the conduct orders. The Tribunal determined that Mr Sunol had made further discriminatory statements towards Mr Burns, which were in direct contravention of the orders. The Tribunal held that the breach of the orders was serious and that Mr Sunol had failed to take reasonable steps to comply with them. As a result, the Tribunal ordered Mr Sunol to pay Mr Burns $2,500 for the breach of orders 3 and 4 of the Tribunal's orders dated 14 May 2014. The Tribunal did not consider it necessary to make further orders regarding the enforcement of the conduct orders.

Orders

Orders of the court

Mr Sunol is to pay Mr Burns $2,500 for breaching orders 3 and 4 of the Tribunal's orders dated 14 May 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 Member
Decision:	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