Burns v Sunol

Case [2014] NSWCATAD 2


NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 2
Hearing dates:5 July 2013
Decision date: 22 January 2014
Jurisdiction:Administrative and Equal Opportunity Division
Before: Magistrate N Hennessy, Deputy President
Ms J Newman, General Member
Mr N Hiffernan, General Member
Decision:

1. The following complaints of homosexual vilification are substantiated: the first, second, third, fourth (paras 1 and 3), seventh, eighth (para 2), ninth and tenth publications.

2. The following complaints of homosexual vilification are not substantiated: the fourth (paras 2, 4 and 5), fifth, sixth, eighth (para 1) and eleventh publications.

3. The following complaints of victimisation are substantiated: the fourth (paras 2, 4 and 5), fifth (1st comment), sixth and seventh publication or comment.

4. The following complaint of victimisation is not substantiated: the fifth publication (2nd comment).

5. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect:

The first publication - set out at [30] above

The second publication - set out at [31] above

The third publication (YouTube clip) - set out at [32] above

The first and third paragraphs of the fourth publication - set out at [33] above

The seventh publication - set out at [37] above

The second passage in the eighth publication - set out at [38] above

The ninth publication - set out at [39] above

The tenth publication - set out at [40] above.

6. Mr Sunol is to refrain from publishing the material described in Order 5, or material to the same or similar effect, on any website, controlled by him.

7. 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 22/1/14.

On various dates between 9 November 2012 to 2 January 2013, I published statements on a website controlled by me: several comments concerning homosexuality and homosexual people.

On 22/1/14 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.

8. In default of compliance with Orders 5, 6 or 7, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

9. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,500 for the homosexual…

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Details
AGLC
Burns v Sunol [2014] NSWCATAD 2
Case
[2014] NSWCATAD 2
Decision Date

CaseChat Overview and Summary

In the case of Burns v Sunol, the NSW Civil and Administrative Tribunal examined a series of complaints brought by Mr Gary Burns against Mr John Sunol. The complaints related to various publications on Mr Sunol's website that Mr Burns alleged constituted racial vilification and victimisation under the Anti-Discrimination Act 1977. The Tribunal was tasked with determining the validity of these complaints and to make orders in respect of any substantiated claims.

The primary legal issues before the Tribunal were whether the publications made by Mr Sunol constituted racial vilification and victimisation as defined by the Anti-Discrimination Act 1977. This involved examining the meaning of "incite" within the context of the Act, assessing whether the publications had the effect of inciting hatred or serious contempt of homosexual people on the grounds of their homosexuality, and determining if Mr Sunol's actions constituted victimisation.

The Tribunal found that certain publications made by Mr Sunol did amount to homosexual vilification and victimisation. Specifically, nine out of eleven complaints of vilification were substantiated, while four out of five complaints of victimisation were upheld. The Tribunal detailed which publications were in breach and why they amounted to vilification or victimisation. It ordered Mr Sunol to remove specified material from his websites, refrain from republishing similar content, and post apologies. Additionally, Mr Sunol was ordered to pay damages to Mr Burns for the vilification and victimisation found. The matter was re-listed to ensure compliance with the orders.

In summary, the Tribunal substantiated several complaints of homosexual vilification and victimisation against Mr Sunol, mandating specific actions and financial penalties to address the breaches. Mr Sunol was required to remove certain content, refrain from similar future conduct, and pay damages to Mr Burns. Failure to comply with these orders would result in further penalties.

Orders

Orders of the court

1. The following complaints of homosexual vilification are substantiated: the first, second, third, fourth (paras 1 and 3), seventh, eighth (para 2), ninth and tenth publications.

2. The following complaints of homosexual vilification are not substantiated: the fourth (paras 2, 4 and 5), fifth, sixth, eighth (para 1) and eleventh publications.

3. The following complaints of victimisation are substantiated: the fourth (paras 2, 4 and 5), fifth (1st comment), sixth and seventh publication or comment.

4. The following complaint of victimisation is not substantiated: the fifth publication (2nd comment).

5. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect:

The first publication - set out at [30] above

The second publication - set out at [31] above

The third publication (YouTube clip) - set out at [32] above

The first and third paragraphs of the fourth publication - set out at [33] above

The seventh publication - set out at [37] above

The second passage in the eighth publication - set out at [38] above

The ninth publication - set out at [39] above

The tenth publication - set out at [40] above.

6. Mr Sunol is to refrain from publishing the material described in Order 5, or material to the same or similar effect, on any website, controlled by him.

7. 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 22/1/14.

On various dates between 9 November 2012 to 2 January 2013, I published statements on a website controlled by me: www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people.

On 22/1/14 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.

8. In default of compliance with Orders 5, 6 or 7, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

9. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,500 for the homosexual vilification.

10. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect:

The fourth publication (paras 2, 4 and 5) - set out at [33] above

The sixth publication - set out at [35] above

11. Mr Sunol is to refrain from publishing the material described in Order 10, or material to the same or similar effect, on any website, controlled by him.

12. 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 22/1/14 and 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

13. In default of compliance with Orders 10, 11 or 12, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

14. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $3,000 for the victimisation.

15. This matter is to be re-listed on 21 February 2014 at 9.30am 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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