NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 63 Hearing dates: 21 February 2014 Decision date: 14 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President
N Hiffernan, General Member
J Newman, General MemberDecision: 1. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching order 6 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.
2. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 11 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.
Catchwords: REMEDIES - respondent to proceedings under Anti-Discrimination Act 1977 in default of conduct orders - damages awarded in default of compliance with conduct orders - conduct orders breached - further damages awarded Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Burns v Sunol [2014] NSWCATAD 2 Category: Principal judgment Parties: Garry Burns (Applicant)
John Sunol (Respondent)Representation: G Burns (Applicant in person)
J Sunol (Respondent in person)
File Number(s): 131058
reasons for decision
Introduction
On 22 January 2014 the Tribunal made orders 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 1977, 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 for each breach: Anti-Discrimination Act, s 108(9). The matter was listed on 21 February 2014 to determine whether Mr Sunol had complied with the Tribunal's conduct orders.
Mr Sunol complied with the orders to apologise and to remove the material from websites controlled by him that was the subject of the substantiated complaints of homosexual vilification and victimisation. He has not complied with the orders to refrain from publishing further material "to the same or similar effect" which either victimises Mr Burns or amounts to homosexual vilification. We order that Mr Sunol pay damages totalling $5,000 for these two breaches.
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.
(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…
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- AGLC
- Burns v Sunol [2014] NSWCATAD 63
- Case
- [2014] NSWCATAD 63
- Decision Date
CaseChat Overview and Summary
The key legal issue before the Tribunal was whether Mr Sunol's breaches of the conduct orders warranted the award of further damages to Mr Burns. The Tribunal had to consider whether the breaches were significant enough to justify an award of damages, in addition to the conduct orders that had already been breached.
In determining the matter, the Tribunal examined the nature and extent of Mr Sunol's breaches of the conduct orders. It found that Mr Sunol's conduct was a clear and deliberate disregard of the orders, which had caused harm to Mr Burns. The Tribunal held that the breaches were serious enough to warrant the award of further damages to Mr Burns. Consequently, the Tribunal ordered Mr Sunol to pay Mr Burns the sum of $2,500 for each breach of the conduct orders, totaling $5,000.
The Tribunal also made orders for Mr Sunol to pay Mr Burns the sum of $2,500 for each breach of the conduct orders, totaling $5,000. These payments were to be made within 28 days of the date of the decision.
Orders
Orders of the court
1. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching order 6 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.
2. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 11 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.
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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