Burns v Sunol - [2014] NSWCATAD 63

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 Member
Decision:
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…

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 63
Case: [2014] NSWCATAD 63
Decision Date: 14 May 2014

CaseChat Overview and Summary

Burns v Sunol involved a dispute between Mr Burns and Mr Sunol, which was heard by the Anti-Discrimination Tribunal. Mr Burns alleged that Mr Sunol had engaged in discriminatory conduct towards him, in violation of the Anti-Discrimination Act 1977. The Tribunal had previously issued conduct orders to Mr Sunol, which he failed to comply with, leading to the current proceedings seeking damages for the breaches.

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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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 Member
Decision:	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