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Burns v Sunol

Burns v Sunol

Case [2014] NSWCATAD 62 14 May 2014

Anti-Discrimination Act 1977

Unlawful Homosexual Vilification

Anti-Discrimination Law

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 62
Hearing dates: 13 November 2013
Decision date: 14 May 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: N Hennessy LCM, Deputy President
A Lowe, General Member
M Nasir, General Member
Decision:
1. The following publications constitute homosexual vilification:
(a) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol:
"Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it."
(b) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. "
(c )the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and
(d) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..."
(2) The following complaints of victimisation are substantiated:
The passages in bold set out at 36 above.
The passages in the letters dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013 reproduced as [37].
(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 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 orders of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014.
On 11 August 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…

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 62
Case: [2014] NSWCATAD 62
Decision Date: 14 May 2014

CaseChat Overview and Summary

The case of Burns v Sunol was heard in the New South Wales Civil and Administrative Tribunal (NCAT), where the plaintiff, Gary Burns, brought a claim against John Sunol for alleged racial vilification and victimisation. The dispute centred on various statements and images published on Sunol's website which Burns claimed were offensive and discriminatory towards the homosexual community. The Tribunal was tasked with determining whether these publications constituted vilification and victimisation under the Anti-Discrimination Act 1977 (NSW).

The primary legal issues before the Tribunal were whether specific statements and images published by Sunol amounted to vilification of a group on the basis of their homosexuality, and whether these actions constituted victimisation as defined under the Act. In assessing these claims, the Tribunal considered the content and context of the publications, the effect of these publications on the community, and whether they incited hatred or serious contempt towards the homosexual community.

The Tribunal found that certain publications by Sunol did indeed constitute vilification and victimisation. It held that the comments and images were capable of inciting hatred or serious contempt towards homosexuals on the ground of their sexual orientation. The Tribunal ordered Sunol to remove the offensive material from all websites under his control, refrain from publishing similar material in the future, and issue a formal apology to Burns. Additionally, Sunol was ordered to pay damages to Burns for the vilification and victimisation, and failure to comply with these orders would result in further financial penalties.

The Tribunal issued detailed orders to ensure compliance with its decision, including a requirement for Sunol to post a signed letter of apology to Burns. The matter was re-listed to ensure Sunol's compliance with the orders within specified timeframes, with additional penalties for non-compliance.

Orders

Orders of the court

1. The following publications constitute homosexual vilification:

(a) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol:

"Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it."

(b) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. "

(c )the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and

(d) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..."

(2) The following complaints of victimisation are substantiated:

The passages in bold set out at 36 above.

The passages in the letters dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013 reproduced as [37].

(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 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 orders of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014.

On 11 August 2013, I published statements on a website controlled by me: www.johnsunol.blogspot.com.au 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 $5,000 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 14May 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 10.00 am to determine whether Mr Sunol has complied with these Orders.

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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Citations

AGLC Citation

Burns v Sunol [2014] NSWCATAD 62

Most Recent Citation

Valkyrie and Hill v Shelton [2023] QCAT 302

Cases citing this decision · 12 of 12 shown

The Australian Capital Territory (Represented BY the Community Services Directorate) v Complainant DT232023 (Appeal)
[2025] ACAT 65 Para 41

…ctionary (online) ‘detriment’ (def 2) 17 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]; Burns v Sunol [2014] NSWCATAD 62 at [85]; Bashour v Australia & New Zealand Banking Group Ltd (Human Rights) [2024] VCAT 1197 at [995]. See also Watts v Australian Postal Corporation [2014] FCA…
Gregson v NSW Department of Education
[2025] NSWCATAD 217 Para 75

…er’s responsibility must be one of the “real”, “genuine” or “true” reasons for her having been denied the transfer: see Burns v Sunol [2014] NSWCATAD 62 at [34]).…
Rowley v Charles Sturt University
[2024] NSWCATAD 229 Para 41

…vantage as to a matter of substance as distinct from a trivial matter”: Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34].…
Dezfouli v Justice Health and Forensic Mental Health Network
[2024] NSWCATAD 189 Para 16

…vantage as to a matter of substance as distinct from a trivial matter”: Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34].…
Bir v Secretary, Ministry of Health
[2024] NSWCATAD 178

…R 336 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Burns v Sunol [2014] NSWCATAD 62 Caroll v Department of Family and Community Services [2015] NSWCATAD 82 Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 304 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Commissioner of Corrective Service v Aldridge [2000] NSWADTA…
Valkyrie and Hill v Shelton
[2023] QCAT 302 Para 6

…Limited [2021] NSWCATAD 147 at [20], whether it had the ‘capacity or effect’ of inciting the ordinary internet user in Burns v Sunol [2014] NSWCATAD 62 at [31], whether it was capable of urging or spurring on ordinary internet users or ‘having the capacity to do this’ or having ‘the effect of’ this in Burns v Sunol…
FSO (obo FSN) v Secretary, Department of Education
[2023] NSWCATAD 15 Para 98

…See also Bogie v The University of Western Sydney (1990) EOC 92-313 and Burns v Sunol [2014] NSWCATAD 62 at [34]) to the same effect.…
Firth v Coles Supermarkets Australia Pty Ltd
[2022] NSWCATAD 156 Para 34

…as to a matter of substance as distinct from a trivial matter” ( Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34]). (l) Additionally, the unlawful discrimination need only be one of the reasons the act was done (s.4A of the Act). Victimisation (m) Pursuant to s. 50…
Burns v Sunol
[2018] NSWCATAD 109 Para 4

…s ordered to be paid on 14 May 2014 as set out in paragraph [44], [49] and [50] above. Burns v Sunol [2014] NSWCATAD 61; (14 May 2014), Burns v Sunol [2014] NSWCATAD 62; (14 May 2014), Burns v Sunol [2014] NSWCATAD 63; (14 May 2014)…
Burns v Sunol
[2018] NSWCATAD 78

…Burns v Sunol [2012] NSWADT 246 Burns v Sunol (No 2) [2012] NSWADT 247 Burns v Sunol [2014] NSWCATAD 2 Burns v Sunol [2014] NSWCATAD 61 Burns v Sunol [2014] NSWCATAD 62 Burns v Sunol [2014] NSWCATAD 63 Sunol v Burns [2015] NSWCATAP 207 Burns v Sunol [2016] NSWCATAD 16 Burns v Sunol [2016] NSWCATAD 74 Burns v Sunol [2…
Burns v Sunol
[2018] NSWCATAD 10 Para 5

…16] NSWCATAD 81. Some complaints have been determined by Tribunals of which PM Britton and GM Newman were not members: see for example, Burns v Sunol [2014] NSWCATAD 62;…
Lipman v Commissioner of Police
[2015] NSWCATAD 250

…dings Ltd (1990) 169 CLR 279 Bogie v The University of Western Sydney (1990) EOC 92-313 Burns v Sunol [2014] NSWCATAD 62 Burns v Sunol [2014] NSWCATAD 2 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Secretary for Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Sluggett v H…

View all 12 citing cases →

Cases cited in this decision · 15 of 15 shown

Burns v Sunol (No 2)
[2014] NSWCATAD 44 Para 1

…compensation. Mr Sunol has not fully complied with two of those orders and has been ordered to pay a further $5,000 in damages: Burns v Sunol (No 2) [2014] NSWCATAD 44.…
Burns v Sunol
[2014] NSWCATAD 2 Para 1

…nts which were heard on 13 November 2013. Two other complaints about similar publications were heard on 5 July 2013 and 4 October 2013: Burns v Sunol [2014] NSWCATAD 2 and Burns v Sunol [2014]NSWCATAD62. We will refer to the decision in relation to the 5 July 2013 hearing as "the Tribunal's January 2014 decision". I…
Jones v Trad
[2013] NSWCA 389 Para 1

…hat decision incorporate principles enunciated by the Tribunal in its 2012 decision and include the principles of the Court of Appeal in Jones v Trad [2013] NSWCA 389.…
Burns v Sunol
[2012] NSWADT 246 Para 1

…n and victimisation against Mr Sunol. In 2012 the Administrative Decisions Tribunal (ADT) determined eight complaints in two decisions: Burns v Sunol [2012] NSWADT 246 and Burns v Sunol (No 2) [2012] NSWADT 247. We will call the first of these decisions "the Tribunal's 2012 decision". In both those cases the ADT fou…
Burns v Sunol (No 2)
[2012] NSWADT 247 Para 1

…12 the Administrative Decisions Tribunal (ADT) determined eight complaints in two decisions: Burns v Sunol [2012] NSWADT 246 and Burns v Sunol (No 2) [2012] NSWADT 247. We will call the first of these decisions "the Tribunal's 2012 decision". In both those cases the ADT found parts of Mr Burns' complaints to have be…
Sunol v Collier (No 2)
[2012] NSWCA 44 Para 59

…sions should be interpreted conservatively in keeping with the high value that the common law places on freedom of expression: Sunol v Collier (No 2) [2012] NSWCA 44 at [59]; Jones v Trad [2013] NSWCA 389 at [27]. When considering whether a matter is in breach of s 49ZT(1), the following questions need to be addre…
Carter v Brown
[2010] NSWADT 109 Para 131

…(d) that detriment occurred on one of the grounds set out in sub-paras (a) to (d): Carter v Brown [2010] NSWADT 109 at [131] - [133].…
Nicholls and Nicholls v Director General, Department of Education and Training (No 2)
[2009] NSWADTAP 20 Para 1

…jected was 'on the ground of' one of the matters in s 50(1). In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37], the Tribunal decided that one of the things listed in s 50(1)(a) to (d) must be at least one of the "real", "genuine" or "true" reasons for…
Collier v Sunol
[2005] NSWADT 261 Para 1

…In Collier v Sunol [2005] NSWADT 261, the Tribunal held that a public act will incite hated, serious contempt for or severe ridicule of a person or group if it contains "strong epithets, derogatory labels and serious allegations, put forward as reasons why other people should develop such feelings."…
Damiano v Wilkinson
[2004] FMCA 891

…d Carter v Brown [2010] NSWADT 109 at [145]. This test has also been applied by the Federal Magistrates Court, as it then was, in Damiano v Wilkinson [2004] FMCA 891.…
Burns v Radio 2UE Sydney Pty Ltd & Ors
[2004] NSWADT 267 Para 1

…re usually used in a derogatory sense unless in conversations between homosexual people: (cf the discussion in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [30 - 31]). In this publication, the word 'fag' is used in a derogatory sense.…
Jones v Toben
[2002] FCA 1150 Para 1

…the public without the need for a password. Publications 1-5 are a form of 'communication to the public' and constitute a 'public act': Jones v Toben [2002] FCA 1150 per Branson J at [73] - [75].…
Dutt v Central Coast Area Health Service
[2002] NSWADT 133 Para 244

…e Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244] and Carter v Brown [2010] NSWADT 109 at [145]. This test has also been applied by the Federal Magistrates Court, as it then was, in Damiano…
Borg v Commissioner, Department of Corrective Services & Anor
[2002] NSWADT 42

…Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244] and Carter v Brown [2010] NSWADT 109 at [145]. This test has also been applied b…
Sivananthan v Commissioner of Police, NSW Police Service
[2001] NSWADT 44 Para 41

…in such use." The Tribunal adopted this construction of the word "detriment" in Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244]…

Legislation cited in this decision · 3

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 1)
Defamation Act 2005 (TAS)
1 mention

Medium Neutral Citation:	Burns v Sunol [2014] NSWCATAD 62
Hearing dates:	13 November 2013
Decision date:	14 May 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President A Lowe, General Member M Nasir, General Member
Decision:	1. The following publications constitute homosexual vilification: (a) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol: "Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it." (b) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. " (c )the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and (d) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..." (2) The following complaints of victimisation are substantiated: The passages in bold set out at 36 above. The passages in the letters dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013 reproduced as [37]. (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 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 orders of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014. On 11 August 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…