Burns v Sunol

[2018] NSWCATAD 78

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Burns v Sunol [2018] NSWCATAD 78
Hearing dates:	14 November 2017, 9 January and 21 March 2018.
Date of orders:	10 April 2018
Decision date:	10 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	The Hon F Marks, Principal Member
Decision:	I make the following orders consequent upon the finding that the respondent has engaged in conduct as described in [91], [92] and [93] above that is capable of constituting contempt of this Tribunal; These proceedings are stood over to enable the respondent to provide such evidence and to make such submissions as he may wish at a further hearing as to whether the Tribunal should refer his conduct to the Supreme Court. The applicant may file and serve before 20 April 2018 any evidentiary material which he wishes to make available to the Tribunal limited to whether or not the respondent has complied with orders made by this Tribunal. Such evidence must be in sworn form, or, if not, the applicant must be prepared to be sworn as to its truthfulness at the next hearing. Any evidence which the respondent wishes to provide should be filed in the Registry before 4 May 2018 and served on the applicant. The proceedings are stood over for further hearing at 10 am on 11 May 2018.
Catchwords:	Contempt-application for referral to Supreme Court-additional material considered-history of failure to comply with Tribunal orders-publication of material disparaging of Tribunal members-held capable of constituting contempt- respondent asked to show cause why matters should not be referred to Supreme Court
Legislation Cited:	Civil and Administrative Tribunal Act
Cases Cited:	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 [2016] NSWCATAD 81 Burns v Sunol (No 2) [2017] NSWCATAD 236 Burns v Sunol [2017] NSWCATAD 215 Burns v Sunol (No 2) [2017] NSWCATAD 236 Burns v Sunol [2018] NSWCATAD 10 Attorney-General v Times Newspapers [1974] AC 273 Witham v Holloway [1995] HCA 3 A.M.I.E.U. v. Mudginberri Station Pty Ltd [1986] HCA 46 Mohareb v Palmer [2017] NSWCA 281
Category:	Principal judgment
Parties:	Garry Burns (Applicant) John Christopher Sunol (Respondent)
Representation:	Applicant self-represented Respondent self-represented
File Number(s):	201800016576

reasons for decision

Introduction and background

1. These proceedings have their genesis in an Application filed by the applicant Garry Burns on 17 October 2017. In that application the applicant sought a finding by this Tribunal pursuant to the provisions of section 73 of the Civil and Administrative Tribunal Act (“the Act”) that the respondent John Christopher Sunol was in contempt of this Tribunal. The basis of the application was a publication of certain material by the respondent on a website concerning a Principal Member of this Tribunal and which was alleged to have been published in connection with certain proceedings in this Tribunal being conducted by her between the applicant and the respondent.

2. The proceedings were amended pursuant to an order made by me with the consent of the respondent by which the applicant in lieu of seeking an order of contempt from this Tribunal sought an order that the proceedings be referred to the Supreme Court of NSW pursuant to the provisions of section 73 (5) of the Act.

3. Section 73 of the Act is in the following terms;

73 CONTEMPT OF TRIBUNAL

(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

Note : Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

(2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

(4) For the purposes of this section:

(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.

Note : Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

4. As will be readily seen, the applicant by the amended application sought that the question of whether the respondent was in contempt of the Tribunal should be determined by the Supreme Court of NSW.

5. In the course of the proceedings documentary evidence was tendered on behalf of both parties and both the applicant and the respondent gave oral sworn evidence. I shall refer to such parts of the evidentiary material as is relevant in the course of these reasons for decision.

The basis for the allegations of contempt by the respondent as contained in the application

6. The basis for the allegation that the respondent was in contempt of this Tribunal is contained within an Internet site by which the respondent published material from time to time, known as a blog.

7. A copy of material published on this Internet site became evidence in the proceedings. The applicant gave evidence that he accessed the site on 15 October 2017 at 10:42 am and on that date printed a copy of the material contained on the site which is in evidence. That material indicates that the site was known as johnsunol.blogspot.com and was hosted by webcache.googleuser.content.com. The respondent conceded for the purpose of these proceedings that he was the publisher of this Internet site, although, as will be seen, he denied personally placing the alleged contemptible material on the site.

8. The publication as searched by the applicant, and as attested to by the printed copy which is in evidence contained a number of references to a named Principal Member of this Tribunal bearing date 28 January 2017. Included within this material are the following matters;

1. a reference by name to the Principal Member “@NCAT NSW” as having “let’s trainee hitchhiker killer out of jail and run around a woman’s prison with AIDS AND RAPE”. Explanatory material states that the named Principal Member was the “NCATNSW judge who ruled (in effect) young boys who were pimped out to gay men by their lesbian mothers….. are doing hate speech by criticising their own life of being urged into child prostitution by their lesbian mothers…”

2. a repeat of the information contained above with a photograph of the Principal Member

3. a reference to a decision of the named Principal Member “that the June 25 case against John Sunol should not be appealed…..”

4. A reference to certain aspects of the employment engaged in by the named Principal Member prior to appointment to NCAT.

9. The printout also contains material placed in a margin under a heading entitled “The Link” to the effect that “vexatious litigation happened to me, Burns vs Sunol and Colikier vs Sunol. This is the definition of vexatious litigation which what happened to me on many occasions over the years I have been in and out of court. The battle lines have been drawn.”

10. I should immediately state that the conduct of the Principal Member described in paragraphs (1) and (2) is beyond any power or jurisdiction of this Tribunal. This Tribunal has no power to make orders allowing any prisoner to be released from prison. It is difficult to comprehend how anyone could make an assertion that a Member of this Tribunal could have engaged in any conduct of the kind described in this publication.

Characterisation of the published material

11. The applicant formulated a charge of Contempt for the purpose of the original application brought by him in which he described the statements published on the Internet site concerning the Principal Member as being “defamatory, insulting, pernicious and offensive.” Furthermore, they were said to be untrue, false and malicious and had the effect of discrediting and impugning the character of the Principal Member with a consequence that that Member “cannot be trusted and accepted as a person likely enable to fulfil” the duty of a Member.

12. The characterisation of the published material is not contentious because the respondent conceded that it was incorrect, was “totally abhorrent” and that there was no factual basis for the publication of that material. He spoke of the Principal Member as being a person who performs duties in a professional and appropriate manner and he said he did not condone in any way the publication of the material. I shall, however, returned to this apparent declaration of praise expressed by the respondent for the purpose of avoiding a referral of these proceedings to the Supreme Court.

Some further evidentiary material

13. For the purpose of determining these proceedings it is necessary that I make reference to some other matters concerning the relationship, or more accurately the lack of any relationship, between the applicant and the respondent. Unfortunately, there have been many proceedings before this Tribunal between these two parties conducted over several years. In his evidence the respondent said that since 7 March 2014 the applicant has lodged 18 complaints concerning his conduct to the Anti-Discrimination Board of NSW “resulting from material published directly on johnsunol.blogspot.com.au by him and another person whom he named as Luke McKee. He said that those 18 complaints, of which he provided details, had been referred to this Tribunal “for public hearings in which I was deemed responsible and made the respondent of the complaints.” He relied on those complaints as evidence of a course of harassment conducted against him by the applicant. Furthermore, he characterised the applicant as participating in vexatious litigation against him.

14. The respondent filed a document on 14 November 2017 which he described as being an “initial response” to the contempt application made by the applicant for the purpose of the directions hearing. A number of documents were annexed to this document including a spreadsheet listing all of the proceedings between himself and the applicant before this Tribunal and its predecessor. Other documents which were annexed referred to other proceedings between the same parties together with police proceedings initiated against the respondent alleged to have been instigated by the applicant. There is also annexed some historical material concerning the personal circumstances of the respondent.

15. One matter which pervades this documentation and which the respondent repeated on several occasions in his evidence and submissions in these proceedings was a claim that the bulk of the offending material was placed on his blog by Luke McKee without his knowledge and consent. I shall return to this matter later in these reasons for decision.

16. Annexed also was a statement made by the respondent on 22 June 2017 in relation to police proceedings brought against him. In that statement the respondent accused the applicant of colluding with a member of Parliament “and a certain very high officer in the NSW Police Force to get a criminal conviction on me because of what I know about the corruption in the administration of “homosexual vilification” antidiscrimination law in New South Wales…..” He also accused the President of the Anti-Discrimination Board of abusing his statutory obligation “in using and encouraging (the applicant) to produce so many complaints against me, to make case law……”

17. Importantly, for present purposes, the statement includes the following material;

23. Most of the case law under section 49 ZT of the Anti-Discrimination Act (Homosexual Vilification) comes from decisions made by biased panels in the many Burns v Sunol cases when I was unrepresented in front of the panels and unable to coherently defend my comments in the public interest (there is then a reference to a spreadsheet of the several decisions). The problem is that the NCAT panels are hand-picked to have on them people who either support the homosexual agenda as a result of their political convictions or support the homosexual agenda due to their minority sexual orientation. Either way they will always substantiate homosexual vilification complaints from Garry Richard Burns because they are referred by the President of the Anti-Discrimination Board. He (or the acting President see at the present time) are not asking NCAT to dismiss the complaints. They want them legally substantiated in order to deepen and strengthen homosexual vilification case law in line with the homosexual agenda.

23. The homosexual vilification panels at NCAT do not serve the interests of the respondent’s human rights, in dealing with the torrent of complaints by Garry Richard Burns, but serve the interests of the President of the Anti-Discrimination Board. And the Anti-Discrimination Board is the spearhead of the homosexual agenda in New South Wales, Australia.

I shall refer to this material further.

18. In the course of his submissions and evidence in these proceedings, the respondent repeated his assertion that the material about which the complaint is made in these proceedings was published by Luke McKee. However, he could not provide any evidence to substantiate this assertion, and was unable to provide any evidence about any steps taken by him immediately upon becoming aware of that publication. Indeed, some of the respondent’s evidence was to the effect that he was not looking at the website regularly, but when he had occasion to do so he eventually closed it down and started another one. Again, he was unable to provide any evidence to substantiate these assertions. Nevertheless, the respondent acknowledged that because the material had been published on “his” website he had ultimate responsibility for any adverse consequences.

19. During the course of his submissions I asked the respondent, having regard to his concession that the published material was abhorrent, whether he intended making an apology. The respondent was granted an adjournment to enable him to formulate an apology in his own words. That apology, with minor amendments which I have made for the purpose of its publication in these proceedings, is in the following terms;

1 The material that was complained about on (the named Principal Member) is totally abhorrent, disgusting and of serious defamation. It lies within the reach of criminal defamation and for this to be put on my blog for the public to see and read without evidence meets the criminal threshold of serious vilification – defamation, – this if it does not meet criminal standards in my mind it should. I see no use of this part to attack a member of the public Judiciary but without evidence as anything but to attack the common law and other members in the public. This (Member) is a hard-working member of the discrimination tribunal who does not deserve this.

2 Whilst I do not accept being the writer of this and ethically I do not accept responsibility, I understand that with me being the owner of the blog and the fact that the blog was in my own name, I have to accept legal responsibility as a publisher of a news media does about the articles written on their media outlets.

Whilst I had no real knowledge of this article until after it was published I still offer my apology to (the named) Tribunal member and take responsibility of this only being under my name whilst I am not the author of the so-called post.

3 I will in future keep a check on my blog every day – never write such articles that disparage people like this article and not allow such vilification/defamation/slander on my blog again. I will also check on this blog and delete any such comments as well to other articles that other people put on the blog.

Conclusion

I do not attack people – I debate ideas and philosophies only.

20. I observe that the respondent has emphasised in this form of apology his respect for judicial and Tribunal members and his abhorrence concerning the type of criticism contained in the published material which is at the heart of the applicant’s application. However, I observe also that the respondent personally engaged in similar scurrilous criticism of members of this Tribunal in the material which he made available during the course of this hearing which I have extracted in [17] above. The named Principal Member who is referred to in the material published on the respondent’s blog was a member of the Tribunal which determined a number of the proceedings brought against the respondent by the applicant. There must be considerable doubt about the sincerity of the respondent and the genuine nature of his apology in this regard. Moreover, as will be seen, the respondent has previously been ordered by this Tribunal to make apologies to the applicant on many occasions and, whether or not given, has continued to persist with the same conduct.

The prior proceedings

21. As I have previously indicated, the respondent invited me to have regard to the prior proceedings involving himself and the applicant for the purpose of demonstrating that he was in reality the victim of a campaign of harassment and vilification being directed to him by the applicant. Whilst there was no discussion concerning those matters during the course of the hearing, I did have regard to them in the course of preparing these reasons for decision. The contents of the various published decisions made by this Tribunal and its predecessors are instructive in determining the appropriate approach to take in disposing of these proceedings. In order to demonstrate this, I shall make reference to them to varying degrees as I consider appropriate for present purposes. I should add that in many of the matters conducted by this Tribunal it was constituted by persons other than the Principal Member named in the publication about which complaint is made by the applicant in these proceedings.

Burns v Sunol [2012] NSWADT 246 (28 November 2012)

22. This is a decision of the former Administrative Decisions Tribunal. The Tribunal found that the respondent had published or was responsible for the publication of the following material;

1. [111024: Context not indicated; appearing on a website not maintained by Mr Sunol]. 'I am not anti gay but anti gay Mardi Gras in Sydney as it is full of criminals... The gay Mardi Gras is a con job and is out to deceave the Australian people. It is full of drugs ect. (Initially published on 4 October 2002, but still accessible on 4 March 2011)

2. [111024: Referring to Westbro Baptist Church Group]. 'Westbro are very right in what they preach, it is just the way they preach it I am in dissagreeance with. They are fighting a very wicked and evil enemy in which they talk about what God really thinks of Fags.' (26 February 2010)

3. [111024: Under the heading 'Thread: who is your Hero today, Mr Magoo or John Christopher Sunol'] 'I speak the truth of these events as these people running Mardi Gras are very very evil and drugs, child pedophilia and else are involved in this event.' (4 October 2010)

4. [111024: Referring to a brief report of a Supreme Court case in the USA, involving one Fred Phelps and said to raise issues of free speech] 'This is an identical case to what I have in Australia in the NSW supreme court. While I might not fully agree with his methods, He is a brave man in attacking these evil people in the Homosexual lobby. I know about Mathew Shepard and from what I found out about from the Homosexual Rainbow groups, Fred is 100% right, Mathew Shepard was a living piece of hojmosexual garbage that got what he deserved when he went and attacked really evil groups, the KKK.' (7 October 2010)

5. [111024: Referring to a newspaper article about 'Greens leader Bob Brown'] 'I am quite dismayed to read such an article on such a wicked and evil man. I believe that this man is going to destroy Australia rather than uplift it and he will bring persecution to the church. I think next he is going to try and take away religious exemption to the Anti vilification laws to make it illegal for the churches and religious organization to refuse to accept gays and lesbians from working inside their organization and joining their congregations.

Henry Collier who attacked me unjustly wanted such and look what happened to this man, he has a heart attack and died. That is Gods answer to such evilness.' (15 October 2010)

6. [111024: Referring to a lecture by Father Frank Brennan entitled 'Reconciling religion, politics and human rights] 'I know as I was framed by a Henry Collier, told lies against and set up for to get my name registered as a homophobia. I will not accept it now and not give in speaking about the wickedness and criminality behind the Sydney Gay and Lesbian Mardi Gras. Henry is now dead so I do not have to worry about him and that Rod S is to much of a gutless to do anything to try and stop me.' (4 November 2010)

7. [111024: Referring to a newspaper report that nine men in the UK had been arrested over claims that they had 'groomed teenage girls for sex'] 'This is dreadful and those who are grooming minors for sex need to be locked away for a mighty long time. Just as the poofs groom young boys for sex in the Gay Mardi Gras in Sydney and they need to be shut down as well.' (12 January 2011)

8. [111024: A publication on a web page maintained by Mr Burns, headed 'One Response to BURNS SOUNDS WARNING ON "HITLER STYLE" GAY MARDI GRAS THREAT'] 'This man is very evil...The Mardi Gras is a very wrong event and it is run by child pedophiles and criminals who sell pornography. To put little children in such an event is evil.' (8 February 2011)

9. [111024: Referring to a proposal by Mr Burns for a comprehensive anti-homophobia campaign]. 'Gary Burns calls for a comprehensive national homophobia campaign. The article is just plainly and simply wrong and wicked in the eyes of God. The man who wrote it, Gary Burns, is very repressive and would if he could try to get the Federal Government to legislate to have all the deemed homophobes put on a register... The man would make a homophobic register to the same if not more degree as a child pedophile register.' (11 February 2011)

10. [111043: No specific context]. 'I am working tonight and am not going to Gay and Lesbian Mardi Gras in Sydney. I have reasons for this which are: I am not in favour of this event. It is a perverted piece of living garbage and very defamatory against people in public - also a national security risk of territory attack as Islamic terrorist put their suicide bombers on this kind of activity. This has been set up for use by the criminal elements that help run it.They are drug dealers,They are pedophiles They deal with pornography and xxx material, and put little children in this.They are blasphemers and a national security risk for the whole of Australia most of all they are not only looking for money as they are mega wealthy, and money means nothing to them, it is power to take over the world with alternative legislation which was once frowned up. Most of all they are criminal and evil people It also has political objectives of bringing in unwanted, uneeded and socialy bad legislation to Australia and else where through its enormous marketing capability They use one very good method to shut up people like myself from telling the truth so they can keep their lies going.and that is The use of vilification and equal opportunities legislation...' (5 March 2011)

11. [111024: The statement attributed to Mr Sunol in the Newcastle Herald article]. 'What I'm saying is, the Mardi Gras is run by drug dealers and paedophiles, not all homosexuals [are drug dealers and paedophiles]. I've seen men with no pants on marching down Oxford Street in Sydney, which is repugnant. If they'd done that in Iran, if they'd done that in Iraq, they'd be murdered. I'm speaking out against it because the homo-nazis and femi-nazis are taking away our right to speak against them.' (8 March 2011)

12. [111120: Referring to a radio news report of Derryn Hinch being sentenced to home detention] 'Those in corruption will be exposed (as well as the Mardi Gras leaders as they are wicked people and criminals).' (22 July 2011)

13. [111120: Republication of part of an email composed by Mr Sunol in 2003 and appearing on a website called 'Trephination'- access obtained through clicking onto the words 'Missing Wives and the War on Freemasonry' on one of Mr Sunol's websites - these words on his site were preceded by the statement 'NB: this is cut and pasted material taken from online which is written by me to others some seven to eight years ago around 2003'] 'I will use these cheap rail fares of $3.30 to anywhere... to spread anti Mardi Gras material and... material inciting people to speak out against the Femenist agenda and the Gay agenda. I will not stop ever until I get locked up and then I will just incite those others inside to dissobey the law concerning villification of gays and other evil laws ect... I am also an eternal enemy to the femenist equal opportunity agenda and this will remain and not ever change. You all loose, I win so forget it sister.' (24 July 2011)

14. [111120: As in 13, but a different email by Mr Sunol] 'Dogwomble you are a trouble making bastard of a dirty and filthy minded faggot and poof. I refuse to state anything else.' (24 July 2011)

23. The Tribunal discussed the relevant legislative provisions and included within its decision the following;

The provisions of the Act making homosexual vilification unlawful in certain circumstances are sections 49ZS and 49ZT. At all relevant times, these were in the following terms:-

49ZS Definition

In this Division:

public act includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.

49ZT Homosexual vilification unlawful

(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 good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

Reference should also be made to sections 88 and 104, which state as follows:

88 Vilification complaints

A vilification complaint cannot be made unless each person on whose behalf the complaint is made:

(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or

(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.

104 Proof of exceptions

Where by any provision of this Act or the regulations conduct is excepted from conduct that unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent.

24. In discussing the question of vilification in the context of any order in the nature of injunctive relief, the Tribunal said in part;

In a decision to which we have already referred, Collier v Sunol [2005] NSWADT 261, the Tribunal held that Mr Sunol had unlawfully vilified homosexuals through posting on the internet publications closely resembling those that we have held to amount to unlawful vilification. On appeal by Mr Sunol (see again Sunol v Collier (EOD) [2006] NSWADTAP 51), this decision was upheld as to liability, but the Tribunal's orders by way of relief were set aside and different remedies ordered. The orders made by the Appeal Panel included injunctive orders in the following terms:-

3(a)... Within fourteen (14) days of the date of this decision, Mr Sunol is to remove from every website controlled by him, the following material: ... [the specific statements found to have amounted to unlawful vilification were quoted here]

and all material to the same or similar effect concerning homosexual men, lesbians, homosexuality or the gay lobby.

3(b)... Mr Sunol is to refrain from publishing the material referred to in order 3(a) above, including statements to the same or similar effect, on any website whether or not controlled by him.

As indicated in a later decision to which we have already referred (see Collier v Sunol [2008] NSWADT 339 at [29 - 39]), Mr Sunol did not obey the latter order. This provides no grounds for declining to make an order of a similar nature in these proceedings.

25. The Tribunal ordered that;

1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him:

(a) the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of the decision; and

(b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality.

2. The Respondent is to refrain from publishing the material described in Order 1 on any website, whether or not controlled by him.

3. Within fourteen (14) days of the date of this decision, the Respondent is to post the following apology, attributed to him, on every website controlled by him: -

This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 28 November 2012.

On various dates between 26 February 2010 and 24 July 2011, I published statements on various websites concerning homosexuality and homosexual people.

On 28 November 2012, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT 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. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest.

I apologise for publishing these statements. I acknowledge that, although I have no issue with homosexual people or homosexuality, 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.

4. The Respondent is to pay to the Applicant the sum of $3,000 as compensation for the harm caused to him by the publication, amounting to homosexual vilification, of the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of this decision.

5. In addition to the amount stipulated in Order 4, the Respondent is to pay to the Applicant the sum of $3,500 as compensation for the harm caused to him by the publication, amounting to victimisation, of the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision.

6. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders.

(personal details of the applicant omitted)

The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 28 November 2012 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.

7. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision.

26. It follows from the extract of this Decision that the respondent has a long history of publishing unlawful material. Significantly, also, he could not claim that he was a stranger to the relevant legislative framework or the concept of tendering an apology. However, more significantly is the reference in this decision to the fact that the respondent had previously breached an order dating back to 2005 requiring him to refrain from publishing such unlawful material. As will be seen, the decisions to which the respondent referred me contain several examples of breaches of orders of this Tribunal and its predecessor by the respondent.

Burns v Sunol (No 2) [2012] NSWADT 247 (28 November 2012)

27. The following extracts from the Decision of the Administrative Decisions Tribunal assist in gaining some understanding of the proceedings with which it was dealing;

The publications for which Mr Sunol was responsible

The text of the five remaining publications on Mr Sunol's website that, according to Mr Burns, vilified homosexuals unlawfully was set out in his complaints to the Board and in printouts from the internet that he attached to these complaints.

We will now reproduce them in chronological order, together with the relevant file number, some additional material indicating the context of their publication and the dates on which they were published or on which Mr Burns gained access to them. Misspellings and typographical errors are not corrected:-

1. [121050: Under the heading 'Homosexuality is a choice, it is NOT GENETIC' - this passage includes the first of the two linking statements discussed above] 'I will not ramble on this very much at all, but homosexuality is a choice, a human choice and it is sin against God. Condemns this as with this choice it brings evilness upon the Human race and destruction.

Homosexuality is a Behavioural disorder brought on by the social conditioning of mankind

It is sin, nothing else and nothing more but plain straight out disobedience to God our Maker and Savior

When you sin in such a way you leaver yourself open for Demons to oppress you and it mixes in with witchcraft.

These are the reasons we MUST NOT ACCEPT THIS SINFUL BEHAVIOUR AND GAY MARRIAGE IS WICKEDNESS, I do not believe in or will accept homosexual rights as they have no rights for their sinful choice in society.

This is all I will state on this but homosexuals need deliverance from their sinful behaviour and the evil spirits oppressing them and repentance to the Lord. Repentance to the Lord and deliverance from this sinful and wicked behaviour is the ONLY WAY FOR SALVATION IF YOU ARE A PRACTISING HOMOSEXUAL. when one person has sex with the same sex they deliver evil spirits between one another, In a marriage to the opposite sex which is not blood related the Holy Spirit then takes over and goes between the two.' (28 January 2012)

2. [121058: Under the heading 'China's gays celebrate love on Valentine's day] 'this is not the part of Chinese culture, Original Chinese culture is very Nuclear family orientated and anti Gay - I blame this as part of that dirty filthy poof Henry Collier who has now since died. It is wicked in the eyes of God.' (15 February 2012)

3. [121070: On the day before the Mardi Gras parade, with the second sentence in large print] 'that dirty filthy faggots March is in Sydney tonight, I tell you keep me out of this. this Mardi Gras is a disgrace to Australia.' (3 March 2012)

4. [121070: Also on the day before the Mardi Gras parade, with the second sentence in large print and providing a link to the website of the Mardi Gras] 'Never put me in this child molesters and pedophiles event, Sydney gay mardi Gras. or all hell will break out. as this is just a child molesters and paedophiles Happy parade' (3 March 2012)

5. [121070: With a link from the word 'Mortein' to the website of Mortein, a brand of insecticide] 'Gary B and his poofy followers are Lui the fly and I will be the Mortein that cleans the world of this disease.' (8 March 2012)

28. In dealing with their conclusions concerning homosexual vilification the Members of the Tribunal said, in part;

In our opinion, publications 2 to 5 inclusive in the foregoing list satisfy the criteria to be considered in concluding that a 'public act' falls within section 49ZT(1) of the Act.

Each of these four publications contains one or more phrases that, read in context, has the 'capacity to incite', or the 'effect of inciting', feelings of 'hatred' and/or 'serious contempt' for the persons to whom the phrases refer amongst 'ordinary members' of the 'class to which the publication is directed'. The phrases in question do not merely convey these negative feelings, but urge readers of them to experience such feelings. The negative reaction that they incite is not merely dislike but hatred and/or serious contempt.

Examples of these phrases are 'dirty filthy poof' in no. 2, 'dirty filthy faggots' in no. 3, 'child molesters and paedophiles' in no. 4 and 'disease' warranting eradication (such as the product Mortein is claimed to achieve with flies and other pests) in no. 5.

The 'target' of the phrase or phrases that we have held to contravene section 49ZT is expressly identified as a homosexual person (e.g. Mr Collier) or a homosexual group, such as participants in the Mardi Gras. Furthermore, the 'ground' on which each publication incited hatred and/or serious contempt was the homosexuality of the person or group. The person's or group's homosexuality was 'a substantially contributing factor'.

We reach the opposite conclusion with regard to publication no. 1, even though it applies epithets such as 'sinful' and evil' to homosexual people. Our reason is that its principal message is that, in the opinion of the writer (Mr Sunol) if not also of other adherents to the Christian faith, homosexuality infringes doctrines of Christianity. To proclaim on a website that, according to some versions of Christian doctrine, homosexuality is a sin and homosexuals are sinners does not, in our opinion, incite hatred and/or serious contempt for homosexual people amongst 'ordinary members' of the 'class' (i.e., internet users) to which the proclamation is 'directed'. It is the reactions of 'ordinary' members of this 'class' that must be considered: see Sunol v Collier (No 2) [2012] NSWCA 44 at [41] and [61], and the discussion in the main decision at [11 - 16]. In making this finding, we take into account the possibility that many of the internet users who consult Facebook pages or 'blogspots' such as that maintained by Mr Sunol might have similar religious views to his.

For the same reasons as are outlined in the main decision at [60 - 62], we find that none of the four publications satisfying the criteria in subsection (1) of section 49ZT falls within the exception in subsection (2).

It follows that the dissemination by Mr Sunol of each of nos. 2, 3, 4 and 5 in the above list of publications, but not no. 1, was an act of unlawful vilification on the ground of homosexuality under section 49ZT of the Act.

29. In dealing with the question of victimisation, the Tribunal said, in part;

The publications about which Mr Burns complained

We will now reproduce in chronological order the ten publications that were identified in Mr Burns' complaints to the Board (i.e. those in category (a)), together with the relevant file number, some additional material indicating the context of their publication and the dates on which they were published or on which Mr Burns gained access to them. Misspellings and typographical errors are not corrected:-

1. [121050: Under the heading 'I have a court case corning up next Monday 31October 2011 NSW supreme courtt appeal'] 'I want to rid Australia of the Anti vilification laws which are not needed at aIl. If we can not rid Australia of unneeded and abused laws then a real modification is needed to protect all Australians from the abuses who use the Anti-Vilification legislation unethically.

They are abused by what I call as Internet thugs and legal abusers, as was done with me through deliberate abuse and misuse of the law in the Collier v Sunol case and now that Gary Burns is trying to do to me now.

Gary is carrying on the abuse that Henry did successfully to me which I am going to overturn for the benefit of all Australians and i am using the court systems to do just that.' (26 October 2011)

2. [121050: A comparatively long passage (from which the following extracts are sufficient), appearing under the heading 'I will not apologise to a Gary Burns over false villification complaints he has put agaisnt me to the ADT'] 'Gary! I notice you have put one more false complaint against me to the Administrative Decisions tribunal to me...

... it is very wrong that you are getting professionals to back me for nicks (or free) and very epensive and hight level, a QC with a barrister in the ADT. I know it is wrong very wrong...

I would rather go to prison than apologize to Gary and he will get nothing from me at all as I do not care if I am imprisoned of contempt of the law as I show no contempt of the law - this was and is only a political exerside by Gary...

I am not willing to apologize to Gary under any circumstance and would rather go to prison that do that as inside prison I can openly let all know that I am being prosecuted by those who want to bring to the world a one world government filled with corruption...

For Gary to get so high profile funding which he does not deserve there funding and I ask the question:

Who am I for a well known serial litigant and trouble maker Gary Burns to attack me since he normally only attacks high profile people like John Laws, Jeff Kennett and the Nine network footy show over gay vilification issues?

What do I have to make me so dangerous that this man has to get funding from senior legal people and why are they setting up such a high profile case.

There is no other reason I can accept behind the fact.

It is a political exercise to give this man a higher profile in amongst the homosexual lobby community and I have a huge potential to be very dangerous - these goons who are taking me on know this so i intend to keep going the way I am and not give in.' (17 December 2011)

3. [121050: under the heading: 'One topic I will not mention on this blog again, is that of the homosexual activist Gary Burns'] 'This man is unbelievable. He is taking me on for victimisation over answering some of his false complaints about me and eternal winging he does.

He is only a bad winger over nothing and a serial litigant who tells lies (blows a mountain out of a mole Hole).

I am going to pay him absolutely nothing and fight him through the courts and tribunals all the way (I will physically harm no one as this mongrel man is putting against me. I am not like that and never have been, instead I fight in the courts and use the legal system to answer my critics along with the web. I do not make abuse of the system as this man does either)

I never that I would physically harm him and this is a blatant lie. He fears for nothing from me as I am not like that and never have been

He deserves nothing from me at all except just a "kick in the ass" from the NSW courts system for blatant Skulduggery and the continual abuse of the courts system -

He is a waste of time as he manipuIates the legal system through his skulduggery to get his own way and steal money from others who have alot of publicity "eg Burns vs Laws (2UE)"

I can say no more due to legal reasons but when these cases are finished read my writings and you will see.' (31 December 2011)

4. [121050: Under the heading 'One message to all so desired trouble makers who want to take me to court on false accuastyions'] 'I have my house and most of my money tied up in family Trusts - There is no way anyone like that man taking me to the Tribunals again on false charges can touch my money or assets.

I have protected myself from thief's like you (Gary) as i put my house and assets in a family trust and others names so that thief's Like you can not get to me

So understand this buster.

You are a farmer who trodes around the paddock all day overturning dry Cow paddies and washing in the Old wet paddy you find underneath

This is all you are Gary"

as people like you dig up shit (as with the Cow Pazddies and swim in the shit) and they told lies about me and against me.' (25 January 2012)

5. [121050: Under the heading 'I am being persecuted by a trouble maker called Gary Burns', with the first sentence in large print] 'This man is full of skull duggery and interprets peoples writings in the worst light he can use by using lies and attack those who do nothing to him.

He is only out looking for notoriety to big note himself as one of the most wonderful homosexual activist in Australia

In reality he is NOT he speaks lies and defames people (like myself) with his misguided and deliberate false interpretations of the activities and writings in public.

similar to what he did in the (Laws vs Burns) famous case study for vilification

I refuse to give in to this Gary Burns on the pain of going to Prison for contempt of the courts as he has set it all up and interpret what I write wrongly to suit his own agenda.

So the case Gary Burns vs John Sunol is not a real case, is is a misuse of the Australian legal system to suit the whims of a trouble maker and those who abuse the civil courts systems all of the time are not real activist, they are only trouble makers who are serial litigants and should not be taken seriously.

I refuse to accept guilt and class Gary Burns in the same light as that of Henry Collier when he took me to court.

I do not vilify, I do not defame, I do not break the equal opportunity laws and most of all I do not hate gays. This is all a lie purported by this Gary Burns who is falsely accusing me of his own agemda.

This man is an evil man, as now he had even got another trouble maker (Helen Gow) from years ago who put false accusations against me at the NSW Tafe when I was going drug and alcohol studies back in 1994 that I was masturbating myself in class. This was proven wrong at this time as I challenge this lie those 18 years ago.

Gary is like a farmer who digs up dry Cow Paddies and fussels through the shit that comes out from underneath.

so

Gary: I will not give in. I will not change and I claim that you are the liar, and you are wrong and I refuse to give in or stop. You will stop this persecution of myself by your own skull duggery and I will not change one little iota.' (29 January 2012)

6. [121058: Under the heading 'Churches today are under serious persecution'] 'It wilI be that people like myseIf speak up against the evils of the New World order and other such situations wilI be put in front of the courts like Henry Collier did to me and Gary Burns is attempting to steaI money through the abuse of the Civil tribunals and courts then to have me made to shut up by the court orders.' (6 February 2012)

7. [121058: Under the heading 'I believe we are living in the last days before Christ returns'] 'These demonic forces knows that I am right and want to stop me - so they bring a trouble maker named Gary to attack me through the courts to try and stop me.

Then I tell this Gary I will not stop no matter how much you try and I have God on my side, you must leave your homosexuality and find Christ or your life is doomed When Christ does return which is going to happen. This has been fortold in the past and preached in the churches for many years.

Ok then I wiIl speak no moe on this Gary and if he continues putting in complainsts against me I will let it take its time and go trhough the courts system.

I do not care about this.

The only thing I ask is

PLEASE DO NOT LET THIS GET IN THE MEDIA AND MAKE ME A PUBLIC CASE LIKE THAT INFORTUNATE THING THAT HAPPENED TO DAVID HICKS AS IF BECAME NATIONWIDE NEWS PUBLIC FODDER IT WOULD SERIOUSLY EFFECT MY JOB (DRIVING TAXI) AS EVERYONE WOULD KNOW ME IN THE WRONG LIGHT and moe than likely I could not do it fully without trouble.

So Gary, You are a trouble maker and an evil homosexual man who is bell bent on abusing the Austrtailan legal sstems corruptly with no regard for humanity.

You do now know me I will not hurt you physicaly as you put this, but I need a forum to get out my knowledge and I use this as a forum with the You Tubes

So shut your mouth buster and go back to bed and stop telling lies.

You need Christ as we all do and the only saviour is Jesus Christ and no one else from any otehr relgiion as they ae all demonic.' (11 February 2012)

8. [121058: Within a comparatively long passage under the heading 'I am one of ther most highly qualified under employed and over qualified Taxi drivers in Australia'] 'No one would take notice due to my older age and the perceptions people Iike Henry Collier put on me by taking me to court unethically and now the Gary Burns who has taken over. These people are liars and I class them law abusers who manipulate the laws to please themselves.

So do NOT TAKE NOTICE TO GARY BURNS AS HE DOES NOT KNOW ME AT ALL and i will fight back.' (14 February 2012)

9. [121082: Under the heading 'I had my Taxi authority suspeded for so called inappropriate behaviour'] 'I had my taxi authority suspended for what was deemed inappropriate behaviour in speaking about Muslims and/or homosexuals.

I beg to differ over this and will appeal this decision vigorously as I need an income and this is where I get my income from, the taxi driving.

I REFUSE TO GIVE IN and that Gay who is fa sly attacking me but let be known

I will sit on the computer all day and every day now whilst I am not working writing what I want and he (Gary) can go and get stuffed if he wants me to stop as that is just not going to happen.

I do NOT VILIFY HOMOSEXUALS,NEVER HAVE AND HE (GARY) IS JUST A PLAIN STRAIGHT OUT TROUBLE MAKER AND LIAR...

I do not blame the officer I made a mistake - which I will accept, but with Gary making false complaints I blame Gay and his co-horts and also Rod Swift for making false complaints about me and setting me up as they hate my guts

They know I am right about the homosexuals and especially the Mardi Gras. I will not stop now or ever and never give in

I also refuse to apologise to that Gary under any circumstances, as far as I am concerned he can go and get stuffed: bring it on mate and we will fight before the courts and media as I will spend the time now online attacking the Mardi Gras all of the time no matter what He wants or does

YOURS DOING THIS IN DEFIANCE TO HIS ACTIONS - that is Gary.' (11 April 2012)

10. [121082: Under the heading 'I just wilI not accept where I went wrong over writings on the homosexual community'] 'I just will not accept that I am wrong.

I have been set up for a political purpose and this is orchestrated by Rod Swift, the Henry Collier in the past and now Gay Burns.

I will accept nothing else than this

Gay Burns is totally and fully wrong and I just will not apologize, stop or give in now or ever

And I tell all this

GAY BURNS IS A POLITICAL ANIMAL

WHO IS TAKING ME TO COURT ON POLITICAL REASONING

IT IS NOT MY FAULT AND I WILL NEVER ACCEPT THIS OR BE WILLING TO APOLOGIZE TO THE MAN

And

If this Gary wins any money against me in the cases, He deserves not a brass Ra zoo and is only a thief who steals money off people by taking them to court on false pretenses and continual abuse of the court system on vilification and/or discrimination issues.

I refuse to accept that I am wrong.' (29 April 2012)

30. In the above extract, the respondent asserts in forceful terms that he will not engage in any form of apology to the applicant, nor will he pay any monies to the applicant in defiance of orders of the Tribunal. This is prima facie indicative of a contumelious disregard for the authority of that Tribunal.

31. The Tribunal framed its conclusions dealing with the question of victimisation in a considered fashion;

In our judgment, Mr Burns' claims of victimisation should be upheld in relation to six out of the ten publications of text that we have reproduced: namely, nos. 2 - 5 inclusive, 7 and 10.

In each of these publications, Mr Sunol used a number of abusive and highly derogatory terms with reference to Mr Burns. In no. 2, he called Mr Burns a 'serial litigant', accused him of wanting to 'bring to the world a one world government filed with corruption' and asserted that he had 'a huge potential to be very dangerous'. In no. 3, he used the phrase 'serial litigant who tells lies' and accused Mr Burns of 'skulduggery' and 'continual abuse of the court system'. In no. 4, he called Mr Burns a 'thief', accused him of 'making false charges' and likened him to a 'farmer' who digs up cow manure and swims in it. In No. 5, he repeated (in substance) almost all of the epithets used in nos. 3 and 4, adding the phrase 'evil man'. In no. 7, a lengthy attack on Mr Burns included the following sentence: 'So Gary, you are a trouble maker and an evil homosexual man who is bell bent on abusing the Australian legal system corruptly with no regard for humanity.' Finally in no. 10, having set out a number of accusations (some in capital letters) against Mr Burns, he described Mr Burns as 'only a thief who steals money off people by taking them to court on false pretences and continual abuse of the court system on vilification and/or discrimination issues'.

In varying degrees, these six publications, disseminated via the internet, were such, in our opinion, as to cause Mr Burns to feel offended, upset, alienated, angry and anxious (all of these being words used by Mr Burns in his written evidence to describe his reactions).

In conformity with the Tribunal's determination in Carter v Brown [2010] NSWADT 109 at [154], we are satisfied that they subjected Mr Burns to a 'disadvantage' which was 'not trivial' and which therefore amounted to a 'detriment' under section 50 of the Act.

We are also satisfied that in each of these publications Mr Sunol referred to the Tribunal proceedings instituted against him by Mr Burns in such a way as to demonstrate that one or more of these proceedings constituted 'at least one of the "real", "genuine" or "true" reasons' (to use the test laid down in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]) for his abusive and derogatory language regarding Mr Burns.

If there were any doubt on this matter, substantiation can be found amongst the email messages sent to Mr Burns by Mr Sunol during March and April 2012. More than once, Mr Sunol expressed hostility to Mr Burns in highly abusive language, on account of being compelled to defend Tribunal proceedings.

32. The Tribunal, in dealing with consequential relief and in particular, injunctive relief said;

In conformity with conclusions reached on very similar facts in the main decision at [103 - 105], we make orders in the nature of an injunction against Mr Sunol, in the following terms:-

1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him:

(a) the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of the decision; and

(b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality.

2. The Respondent is to refrain from publishing the material described in Order 1 on any website, whether or not controlled by him.

.

33. In addition, the Tribunal ordered the respondent to post an apology within 14 days in terms specified by it on any website controlled by the respondent, to pay the respondent a total of $4500 by way of compensation for harm, and to forward to the respondent a signed letter of apology in terms set out in its Decision. Furthermore, the respondent was required within a period of 14 days to remove the relevant material from all websites controlled by him.

Burns v Sunol [2014] NSWCATAD 2; (22 January 2014)

34. This is the first decision of this Tribunal and dealt with a number of publications of the respondent

The period of the complaint is 9 November 2012 to 2 January 2013. Mr Burns complains that several publications on a blog - and letters and emails Mr Sunol wrote, breach s 49ZT.

35. It is not necessary for present purposes to set out the content of those publications.

36. The Tribunal found a number of complaints of homosexual vilification proven and dismissed others. It ordered that the respondent remove specified material from every website controlled by him “and/or material to the same or similar effect.”

37. I observe that the respondent has subsequently breached the order to refrain from publishing material to the same or similar effect on many occasions, as will be seen from a consideration of the later Decisions, which I shall shortly discuss.

38. The Tribunal also ordered the respondent to post an apology on his websites and specified the form thereof, which was to be attended to within 14 days of the date of that decision. If he defaulted in complying with any of those orders the respondent was ordered to pay to the applicant the sum of $2500 for each breach. In addition, the respondent was ordered to pay the applicant $3000 for victimisation, such payment to be made within 28 days.

39. Significantly, for present purposes, the Tribunal said;

In the Tribunal's 2012 decision it found some aspects of Mr Burns' complaints of homosexual vilification and victimisation substantiated and ordered Mr Sunol to:

(1)   remove certain material from every website controlled by him;

(2)   refrain from publishing that material again;

(3)   post a specified apology on every website controlled by him with 14 days;

(4)   pay to Mr Burns $3,000 as compensation for the harm caused to him by the publications which were found to constitute homosexual vilification;

(5)   pay to Mr Burns $3,500 as compensation for the harm caused to him by the publications which constitute victimisation; and

(6)   write a letter of apology in specified terms to Mr Burns.

The Tribunal determined several other complaints of homosexual vilification and victimisation involving the same parties in Burns v Sunol (No 2) [2012] NSWADT 247. The orders in that matter were in similar terms to those summarised above except that Mr Sunol was ordered to pay Mr Burns $2,000 as compensation for the harm caused to him by the publications which constituted homosexual vilification and $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation. In total, Mr Sunol was ordered to pay Mr Burns $11,000.

According to Mr Burns, Mr Sunol has not complied with any of these orders.

Burns v Sunol [2014] NSWCATAD 61; (14 May 2014)

40. The Tribunal considered the following publications;

(1)   First publication - 12 November 2012

child abuse royal commission needs to go a lot further than just the Catholic church

Yes

If child abuse or sexual molestation is found in parts of the Roman Catholic church, they must be dealt with according to law.

But

I am afraid that this child abuse goes a lot further than just ther church

The church is only one institution I has occurred to on some occasions and this is not the only place

Let alone child abuse and drug dealing is rampart in other areas of lifestyle and events. Namely one organization much bigger and larger than the catholic church is that of Gay nad Lesbian Public events, such as the, Sydney Gay and Lesbian Mrdi Gras and the yearly sleazeball in October every year and all associated events. This is also run by brought about by drug dealers and pornography dealers into child sex port as well as other such thngs. Other areas such as the ex inustray legal and uillegal brothels and sex shops should also be inviestigatwed. These should also be investigated completely and when the purpentrators are found they should be brought to justice with there criminal acitivites closed down for good At least that repugnant sleaze ball. And all associated sex shops and brothels should be investigated as well. I will not shift from this as this is fact.

(2)   Second publication - 3 March 2013 blog post:

All parts of society and as all parades have a message to point out. I could easily see the message in this parade which I am disgusted at, all segments of society to accept diversity of ways and gay and lesbian sexuality. This is evil and a major security risk to Sydney.. . .

THAT IS DANGEROUS, VERY VERY DANGEROUS AS A BOMBING COULD EASILY BE CARRIED OUT ON THIS PARADE WHICH WOULD HAPPEN WITHOUT NOTICE.

Then you have near naked men and woman march down the parade, showing their bums at all, acting sexual behaviours, little children involved in this march and right at the very end two men masturbating each others on a float with gay marriage, and women acting sexjual acts with each other as well.

This was the last thing I could task as the end of the parade started to hype up into a sex orgy in the main streets of Sydney so I had to get out and when it finished I just walked away from this and went to central station to catch a train bus back to Broadmedow

This is evil as right at the end you practicably had ther parade participants get involved with sex with each other over a gay marriage float and for the Military and Police with other government departments and heads (such as clover Moore) go get involved with such, it is totally unacceptable/

and worst of all

Our authorities are now part of this degenerating and unacceptable behaviours as depicted in this march, Where is Western society leading, God will not tolerate this wickedness for ever.

(According to Mr Burns, by using different fonts, the applicant invites the reader to click on the links. In this case the link opens up to a page headed "Destination NSW" promoting the Sydney Mardi Gras.)

(3)   Third publication - 10 March 2013 blog post,:

To all whom think that I should be punished for vilification I do not do

Also i am making it my goal to rid Sydney of this Mardi Grad which is also a major danger of terrorist attack upon this city.

(4)   Fourth publication - 14 March 2013 blog post,:

Jesus is NOT gay

The only thing is to stop parade in case of potential terrorism in 2014 because of the soft target and the controversial nature of the parade.

If a terrorist done a bombing on this or a suicide bombing we could not possibly stop them, nor could the police and they would be blown up in it I state better to stop this parade to keep the terrorist away. If I was able to creep in unnoticed so could anyone and so could a potential suicide bomber. this is a bad ting and must be stopped this year, and put into the annuls of Sydney's history.

(5)   Fifth publication - 1 April 2013 blog post

I Declare Jihad

I declare Jihad against the all LGBT groups and the atheist as they are deluded deceiving the people.

i also agree with Fred Phelps over the GLBT groups which in themselves are very evil and wicked groups that God will destroy eventualy

(6)   Sixth publication - 14 April 2013 blog post:

I do not hate gays and or lesbians as he accuses, I do not like the Sydnety Gay and Lesbian Mardi Gras as it is totally inappropriate for the streets of Sydney.

Open target for terrorist attack

Besides that it draws big crowds in an event in Australia which has got troops overseas fighting Islamic extremists and extremists else where and this leaves a huge danger to Sydney of an easy terrorist attack and terrorist suicide bombing.

This event is extremely controversial, extremely large crowds of people gather in very difficult to protect if the authorities can at all from a terrorist attack, and would give very wide publicity for the terrorist group who done the bombing

It should be stopped immediately without delay before something very nasty happens or it will come upon us by surprise, just like the London Bombings, (7 July 2005) Madrid train bombings (7th March 2004) and Most all which is now infamous 9/11 September 11 2001 in New York

(7)   Seventh publication - 7 May 2013 blog post, with hyperlink to a YouTube clip of Westboro Group Church, with the following statements:

The best of Fred Phelps - I do not agree full but he is better that the LGBD and rainbow groups - You Tube

Fred Phelps You Tubes

I do not think that this is appropriate in all circumstances but Fred Phelps is a far better man than the leaders of the GLBT or rainbow groups which are very evil and they are a extremely nasty piece of garbage

Watch and Enjoy understanding I back this rather than the GLBT groups or the rainbow groups

41. In discussing the question of publication, the Tribunal said, in part;

What is the relevant act and is that act a "public act" of Mr Sunol's?

Mr Sunol agrees that he published the material set out above on an internet site controlled by him that is accessible to any member of the public without a password. Such publications 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].

Publication 7 contains a hyperlink to a YouTube video about the teachings of the Westboro Baptist Church. The video shows a person making extremely derogatory remarks about homosexual people and engaging in anti-homosexual campaigning. Providing the hyperlink to this video is a form of communication to the public. By posting the hyperlink on his website Mr Sunol was publishing the content of the video to internet users at large.

In summary, all seven publications are public acts of Mr Sunol.

42. The Tribunal found that;

1. The following publications constitute homosexual vilification: Publication 1 (bold font), Publication 5, Publication 7 (excluding the publication of the YouTube video).

2. The following complaints of victimisation are substantiated: Publication 1 and Publications 3-11.

43. The Tribunal ordered, inter alia that

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 including Facebook 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.

44. Furthermore, the respondent was ordered to post an apology in a specified form on every website controlled by him, and in default of compliance with any of the orders made was to pay the applicant the sum of $2500 for each breach. In addition, the respondent was ordered to pay to the applicant $1000 for homosexual vilification and $2000 for victimisation. Finally, the respondent was required to forward a written apology to the applicant in a specified form. He was required to pay the applicant the sum of $2500 for any breach of these latter orders.

Burns v Sunol [2014] NSWCATAD 62; (14 May 2014)

45. The Tribunal described the publication which is the subject of these complaint proceedings in the following terms;

Sunday, 11 August 2013

One of these videos is going to be used against me in a court of law on October 4, 2013.

Watch this and know that I do not think this can be done today but it was back in History but this is what happened in History. This is taken from Fred Phelps site God hates fags on the Westerbury Baptist church and this is what Gary Burns is going to use against me on October 4, 2013.

I do not think this can or should be done today as we are living in the times of grace and not the law.

But this is going to be put forwards that I want to do in a court hearing on October 4, 2013 and I challenge Gary over this 100%.

(Hyper link to you Tube clip entitled "Anti-Christ in Chief" with a graphic of a man sodomising another man on the cover of the video)

Thank God for Russia's fag law (video News)

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

I agree with Fred over this, let's thank God that the Russian people have got this right

more

I agree with Fred over this, let's 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.

(Link to YouTube clip entitled DEATH PENALTY 4 FAGS)

Death Penalty for Fags (sign movie)

All nations should follow God in requiring the death penalty for sodomy.

I do not agree that this is for today, it was done in Biblical history but today we are living in the times of grace that through Jesus Christs death we are taken from the law and put under Grace, this might have been relevant in Biblical times but not to go on a murderous rampage as it can easily be taken out of context. It was used against me that I want to go on this in a court case coming up October 4, 2013 but that is not truth.

This man taking me is a trouble maker, liar and abuse of the law all of the time, habitually tells lies to courts to obtain money.

This is the video that I am being accused of supporting to go on a murderous rampage and kill gays, those taking me to court and use this video to accuse me of serious vilification.

This is far from the truth: whilst I agree with this in history I do not agree that to kill gays today is relevant at all. I would be no better than a raging lunatic if I did that and it would be right for the authorities to lock me up for murder or attempted murder

This is what is coming up on October 4th and I am willing to speak to any media that wished to speak to me over this.

I am willing to speak to any media that wants to contact me over this case coming up on October 4 as I am going to fight this fully. The man who is taking is a continual and habitual court abuser.

(Hyperlink to you Tube clip entitled "God H8S FAG MARRIAGE")

God's love (audio)

Parody of "Same Love." Too late to pray, now that you've let fags marry. Have you read "Remember Lot's Wife" lately? - this I agree with as God not only hates gay marriage, gay marriage is an abomination to him and will end up in his wrath coming upon all who marry such a way.

You are deceived and deluded by Satan when you believe anything else.

(Hyperlink to you Tube clip entitled Vine of Sodom and grapes of gall.)

I agree but No comment.

Deuteronomy 32:32 for their vine is of the vine of Sodom, and os the fields of Gomorrah: their grapes are grapes of gall, their clusters are bitter.

morehink that this is for today but in Biblical history this was done

John Sunol

46. In referring to the case being prosecuted by the applicant, the Tribunal said;

Mr Burns is not relying on the content of the video clips which are linked to Mr Sunol's blog as constituting homosexual vilification. He did not tender those videos in evidence. He is relying only on the depiction of the titles of the videos, the graphic of a man sodomising another man on the cover of the "Antichrist in Chief" video and Mr Sunol's commentary. In particular, Mr Burns highlights the following parts of the publication:

(1)   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."

(2)   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. "

(3)   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

(4)   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 ..."

We will refer to these publications as Publications 1-4.

47. The Tribunal described the allegations of victimisation brought by the applicant in the following terms;

Complaints of victimisation

The allegedly victimising conduct is publications of text on Mr Sunol's blog on 19 August 2013 and five letters Mr Sunol wrote to Mr Burns during the period 29 July to 16 September 2013. There is no dispute that Mr Sunol wrote these comments. Mr Burns' case is that Mr Sunol subjected him to a detriment by making these publications and that the reason he did so was because he lodged complaints against him under the Anti-Discrimination Act.

The relevant parts of the publications are set out below, in chronological order. We have re-produced the publications verbatim and put the allegedly offending matters in bold font.

Gary Burns is a theif

man has taken me to court on number of occasions set up on false accusations and lies,

this man is full of fraud and he tells big lies about me, as he done to the ADT in these cases.

This man also is very political and this is another piece that he writes on.

To me Tony Abbott has no need to listen to this clown as he does not need to apologise to any gay whatsoever, he like me has done nothing wrong

Gary is full of skulduggery and political lobbying so all need to have an all Gary altogether

this is only a political attack upon Tony Abbott as like me he is degusted with gay marriage

I saw an article in the Newcastle Herald today has made me feel sick of two men being married in New Zealand

he did not even pay the $4000 he owed to my solicitor when he lost an AVO case in wave at 10 on 5 August 2011. He told straight out lies that I am going to harm him and I am a very dangerous man.

Gary told straightout lies and made up a load of bull shipped stories that I am going to hurt him, he was very afraid of me and put me to the expense of bringing a solicitor to defend myself. He knew this was a load of crap and when he lost this AVO and did not get it, he was told to pay my solicitor $4000 but he did not even do that, he disobeyed court orders openly knowingly and contemptuously - then when he won $11,000 off me by fraud in the ADT in 2012 he demanded the money straight away when I did not have it. He was even going to send a debt collectors around.

I tell this "ass hole" and Internet plug and a liar, go to hell as I am not going to pay you buster even if you win these last cases I will fight you and your kind write very end as you are the troublemaker, you are the liar and you are the abuse of courts. You are very wrong and a very evil man.

I am a fighter and do not give into thugs like yourself I have never given into thugs like you or curtailed to show restraint in any sense. Also you do not preter me buster, I do not get frightened, I just fight you back knowing that you are a very evil man who tells lies to get what you want and I am right and the victim in this case as with all my cases against you Burns.

You tell lies to the court, when caught out you will not pay but you expect me to pay you straight away when you're lies win in a civil tribunal

will then go to hell buster as this is not going to happen I am not going to pay you one red cent, I will fight you to the very end. Take me to the Supreme Court, have to be prisoned, I do not care but when I am right and thugs like you is attacking me I do not give in or sway one little iota

you are just as bad as those criminals that run that Mardi Gras held in March each year in Sydney

I will never pay you one red cent and you cannot and will not get this from me.

I do not vilified, I do not harass anyone and I do not victimise like you accuse me of.

That is all "bullshit" and "lies" made up out of your own mind to get money from me by the abuse of the courts system and fraudulent activity by yourself.

You are a very evil man as I have never touched you and never will. All I do is to defend myself and others from an Internet thug and court abuser like yourself and the others working with you from the GL S BT and/or rainbow groups.

A heal of bull crap, I have never hurt anyone or would: this man is a plain straight out liar and a con artist he wants to steal off you by telling lies and city you up on false accusations.

I have more cases coming up on 4 October in the ADT in Sydney so stay tuned and watch but Gary. Let me tell you this buster

I am not going to pay you even if you win as you, you mongrel with your skulduggery has told lies and stolen off me. I am not going to apologise to you or the gay community as I hurt know one will never hurt them or have I ever vilified.

I tell the truth and you tell lies which are made up by yourself in complete vindication.

Also when ever I answer you, you mongrel you state more lies that I am harassing you and victimising you.

Just to let you know this buster, I have no intention of paying you if you win the case on July 5 or this one on October 4, 2013 as you deserve nothing but a good kick in the bum by those authorities and the police for wasting their times with false cases and abuse of the legal system (which you habitually do).

In reality you are not getting victimised by me, but I am being victimised by you as you tell straight plane out lies in knowing what you are doing to receive money by fraud.

I will never change from this that I put on this blog, never give in and I will fight you all the way to death just know this.

The war between us is on, NOT OFF, and I will never bow down to a thief and court abuser like yourself.

So enjoy yourself fidgeting as it is going to stay on and not off as I am not going to give in in any time coming and will never recognise where I am wrong, also I will never pay you one red cent and if a debt collector pays you - that is his fault and I will refuse to pay him

I will state no more but this is my answer to a thug, court abuser, liar and thief like yourself.

You are very evil mate just know that.

I promise Gary and all others, I stand for truce and justice.

Not gay marriage which is nothing but evilness and makes me sick in the stomach to see two men or two women get married in God

this is totally blasphemous towards God, makes God very angry and will bring his judgement down on all who do such evil.

John Christopher Sunol.

48. The Tribunal said;

The letters which Mr Sunol wrote to Mr Burns are dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013. They make similar allegations against Mr Burns and refer to him in the same derogatory terms. The 29 July letter accuses Mr Burns of harassing him and telling lies about him to the 'courts'. In the 26 August 2013 letter Mr Sunol accuses Mr Burns of "continual abuse of the law and perverting the cause (sic) of justice." He also said he had given "false statement" to the ADT. In the letter of 2 September 2013 Mr Sunol calls Mr Burns a "liar" and a "trouble maker". In the letter of 4 September 2013, Mr Sunol writes that:

On 12 August 2016 Mr Burns lodged a further complaint with the Board (the Complaint) concerning material published on Mr Sunol’s website under the heading “Some interesting things will happen”. Suffice to say for current purposes, the material about which Mr Burns complains (the offending passage) states that Mr Burns hires teenage prostitutes. In addition it describes, in salacious detail, sexual acts which Mr Burns is alleged to have engaged in with a male minor.

For the reasons that follow, we find the Complaint to be substantiated.

70. The material about which the applicant complained was read by him on or about 30 July, 2016. I should add that the offending material was not reproduced in the Decision because it was said to contain “obscene and indecent content.”

71. In the course of the Decision the Tribunal had cause to comment on the asserted involvement of Mr McKee in publishing the offending material on the respondent’s website. This is the same line of reasoning which the respondent submitted in the proceedings before me which gave rise to an exculpatory explanation on his part. I note, however, that the factual material considered by the Tribunal was not consistent with the submission of the respondent in those proceedings concerning his conduct relating to the removal of offending material from his website. The Tribunal said;

At the hearing, Mr Sunol admitted that he had given Mr McKee the password to his website and that this enables content to be posted on the website. However, he claimed because of “all the trouble” Mr McKee had caused him, at some point in time he changed his password. He said he could not remember when he changed his password. He asserted that even without a password Mr McKee would be able to post material on his website because he is “very internet savvy”.

Mr Sunol stated he did not endorse the views expressed by Mr McKee in the offending passage that Mr Burns was a “child molester”. He said if he found comments such as that on his website he would “take it straight down”. When asked why the offending passage was still on his website on 18 February 2017, he stated that it had probably been missed. He claimed he had “so much stuff on my blog: I don’t have the time or ability to take it down”. He stated that he will not be held responsible for what another person, relevantly Mr McKee, writes.

Mr Sunol admits that he operates the website on which the offending passage was posted and that he has the ability to remove posted content. The offending passage had been on the website for 13 days when Mr Burns lodged the Complaint with the President. There is no evidence that Mr Sunol took steps to remove the offending passage during or after that period. As we noted, the offending passage had not been removed from Mr Sunol’s website seven months after it was posted.

Mr Sunol made the general claim that if he becomes aware of offensive material on his website he takes steps to remove it. However, with respect to the offending passage, he admits being aware of it and taking no steps to remove it. Given those facts, it is not necessary to determine whether when Mr McKee posted the offending passage he had access to the website by a password or some other means.

Mr Sunol is correct that by writing and posting the passage on the website, Mr McKee was responsible for its communication to the public. Nonetheless, in circumstances where Mr Sunol had actual knowledge that the offending passage had been posted and he took no steps to remove it from a website which he operated and controlled, and he took no steps to remove it, he is also relevantly responsible for its publication, or more correctly, repeated publication. A “public act” as defined by s 49ZS of the Act may be the act of more than one person.

Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017)

72. The following extract summarises the nature of the complaint being considered by the Tribunal, and its Decision;

The following article (the offending article) appeared on the Sunol website on 14 September 2016:

“Gay Dads” keep on raping, and “marriage Equality: is a platform to give them more boys to rape!”

The heading reads “Gay Dads” keep on raping, and “marriage Equality: is a platform to give them more boys to rape!’. The clear meaning conveyed is that the campaign for marriage equality is a ruse to give “gay dads more boys to rape”. The subject of the heading is “gay dads”. In our view, the words used, together with the intemperate tone of the heading, have the capacity to incite hatred of and contempt towards “gay dads” in the ordinary member of the group. In addition, we find at least one of the real reasons for the offending passage having the capacity to incite hatred towards, contempt of “gay dads” is their sexuality.

Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)

73. The following extract summarises the nature of the complaint being considered by the Tribunal;

Mr Burns alleges that comments made by Mr Sunol in a YouTube video posted on Mr Sunol’s website amount to unlawful homosexual vilification.

Entitled, “Message to Gary Richard Burns over my $55,000 Debt”, the video is just over five minutes in length. In the video, Mr Sunol voices his displeasure with Mr Burns’ pursuit of complaints against him made under the the Act and, in particular his recent attempts to enforce a judgement debt said to be in the sum of $55,000. After stating that the complaints of homosexual vilification brought by Mr Burns were based on “hyped up rubbish” and a “bunch of lies” and should be thrown out, Mr Sunol goes on to say:

I ain’t paying a child molesting faggot $50,000 for a bunch of cases, which on balance of probabilities are substantiated on fraud, false lies, which I refuse to recognise ... I refuse to pay and all the other child molesting faggots, that’s all they are child molesting fags ... they will decide they have been vilified... they will want money as well ... they will put me through more court cases.

Mr Sunol goes on to claim that Mr Burns’ actions will result in him being declared bankrupt. Looking directly to camera he says “I totally refuse to apologise ... I totally refuse to pay you anything ... I’m going hard line”. The video ends with Mr Sunol saying:

On another issue it’s [the complaints made by Mr Burns] nothing to do with same sex marriage. It’s all politics. Blatant cold hard Marxist politics ...

Mr Sunol devotes a significant proportion of the video to outlining the steps he has taken to protect his assets in the event he is again declared bankrupt. Apparently Mr Sunol has recently been discharged from bankruptcy.

The trigger for making and posting the video was the commencement of recovery proceedings by Mr Burns in respect of money orders made by NCAT and one of its predecessor tribunals, the Administrative Decisions Tribunal (the ADT) under the Anti-Discrimination Act. In October 2016, Mr Burns filed a certificate issued by the NCAT Registrar, certifying that Mr Sunol owed him $49,500 in the NSW Local Court. As a result a judgement debt in the amount of $55,000 (which apparently includes a component for interest) was created: s78(3) of the NCAT Act. In late 2016, a sheriff of the NSW Local Court arrived at Mr Sunol’s home seeking to enforce the judgement.

74. Prima facie, the material published on the website is indicative of an acknowledgement by the respondent that he has not paid any of the monies ordered by this Tribunal and its predecessor to be paid by him to the applicant in the course of the many proceedings initiated by the applicant against him. Whilst the date of publication is not apparent, it may be assumed it occurred some time in late 2016.

75. Relevantly for present purposes, the Tribunal determined that;

That part of the complaint of homosexual vilification relating to Statement 1 is substantiated. The balance of the complaint of homosexual vilification is dismissed. The complaint of victimisation is substantiated.

Conclusions based on the several Decisions of the Tribunal extracted above

76. I should stress that the last published Decision to which the respondent referred me was Burns v Sunol (Number 2) [2017] NSW CA to a 236. The remaining decisions were referred to him by name, but had not been published as at the date that he had prepared the schedule of decisions. I have located the subsequent published decisions during the course of preparation of these reasons for decision.

77. As I perused the decisions which I have referred to above, a number of matters became clear, the totality and extent of which had not been revealed during the course of the hearing before me. These were;

1. there are many instances where the respondent has breached orders of this Tribunal (I shall disregard any breaches of orders of its predecessor).

2. those breaches have persisted over a long period of time.

3. the respondent has indicated in publications made by him on his Internet site that he will decline to comply with many of those orders

4. contrary to the impression which he sought to make in the hearing which I had conducted, he has relied on many occasions on the fact that Luke McKee has had access to his website, has published material on it without his authority, and that he has removed that material immediately becoming aware of it. The findings by the Tribunal that the respondent has in fact permitted that material to remain on his website for varying periods, and that the publication of material on the website by Mr McKee occurred frequently must cast great doubt on the veracity of the evidence given by the respondent during the course of the hearing which I conducted

5. not only has the respondent failed to honour the very many orders imposed upon him restraining him from future publications of the same kind of unlawful material when coupled with the orders for the payment of monies, but his constant failure to honour the apologies rendered by him from time to time must cast considerable doubt on the sincerity of the apology which he tendered during the course of the hearing before me

6. the publication of the scurrilous and, as conceded by the respondent, abhorrent material about the Principal Member which was the subject of the application as originally brought by the applicant, is not an isolated event. So much can be gleaned by the material contained within the document which the respondent made available to me during the course of the hearing and which I have referred to in the course of paragraph [17] above.

78. Having regard to the above matters when considered in their totality, it appears to me, on my own view, that the respondent has conducted himself in a manner which is capable of constituting contempt of this Tribunal. The factual bases are established by the various extracts from the Decisions of the Tribunal as to the content of the publications, the orders made and the breach of those orders. I shall elaborate on the nature and extent of the contempt later in these reasons for decision.

79. It follows that I am empowered to refer such contempt to the Supreme Court for determination pursuant to the provisions of section 73 (5) of the Act. To the extent that I have reached such a conclusion extending as it does well beyond the application made by the applicant, it also follows that that application has been overtaken and subsumed within the conclusions which I have made. I stress that in determining whether to exercise the discretion to make such a referral, it is necessary that I afford the respondent an opportunity to make such submissions, and provide such evidentiary material as he wishes in opposition to the exercise of that discretion.

80. For the purpose of assisting the respondent who to date has been unrepresented in providing evidentiary material and making submissions, I intend to provide some brief observations concerning the fundamental principles which apply to the law of contempt, and to particularise the nature and extent of the contempt which has prima facie been established by reference to the subject matter of the application brought by the applicant and the other material to which I have referred. I do not wish to unduly disadvantage the respondent in any way, but I note from the material which he has provided to this Tribunal for the purpose of resisting this application that the respondent claims to have tertiary education qualifications consisting of a B Soc Sc from the University of Newcastle, a Post Graduate Certificate in Business Marketing Communications and a Master’s degree from Wollongong University. I will therefore assume an appropriate level of intelligence in applying himself to the material which I set out below.

The nature of contempt

81. Lest the respondent be in any doubt, I regard the provisions of section 73 of the Act as exposing a person who is guilty of relevant contemptible conduct to prosecution for an offence of contempt of this Tribunal in the same manner as would apply to contempt of the District Court of NSW.

82. A general description, as a starting point is the statement of Lord Diplock in the House of Lords in Attorney-General v Times Newspapers [1974] AC 273, commencing at 307. His Lordship said:

My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. 'Contempt of court' is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.

83. For present purposes, I am concerned with two forms of contempt. The first is conduct which consists of disparaging statements which have the effect of undermining the maintenance of public confidence in, in this case, this Tribunal by reference to the character, integrity, honesty and worth of its members. The publication of the material on the respondent’s website referred to in paragraphs [7], [8] and [9] above and the statement of the respondent referred to in paragraph [17] is such conduct. As such, it brings the members of this Tribunal into disrepute, and undermines public confidence in it and its decisions.

84. The second form of contempt is conduct which consists of a failure to comply with orders of this Tribunal.

85. Such conduct is capable of constituting contempt even though the relevant orders may have been secured by an individual for his or her own benefit. Such might arguably be the case concerning the breach of the several orders of this Tribunal made from time to time that the respondent pay monetary sums to the applicant. In Witham v Holloway [1995] HCA 3, Brennan, Deane, Toohey and Gaudron JJ in the High Court of Australia spoke of the dichotomy between proceedings in the nature of contempt taken in the public interest and the involvement of private individual interests in such proceedings in the following terms;

15. One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.

16. Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.

17. Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a "penal or disciplinary jurisdiction" may also be called into play. It has been held that the "penal or disciplinary" jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. Thus, in Canadian Transport v Alsbury, Sidney Smith JA rejected the submission that settlement precluded further proceedings saying:

"Are we to be told that after a party has defied a court, the court can still do nothing because the other party is willing to swallow the contempt? Nothing short of the clearest authority would convince me that that is the law; and there is no such authority and no such law."

And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown(35), their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri, that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed".

18. Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as "punitive" and others as "remedial or coercive". Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.

19. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.

(citations omitted)

86. The reference to Mudginberri in the above extract is a reference to A.M.I.E.U. v. Mudginberri Station Pty Ltd [1986] HCA 46 in the High Court. In a joint judgment Gibbs CJ, Mason, Wilson and Deane JJ described the ingredients of contempt constituted by a failure to comply with court orders as follows;

25. The correctness of the approach outlined in the preceding paragraph was endorsed by the House of Lords in Heatons Transport, at p.109; their Lordships explicitly citing Steiner and Mileage Conference as precedents for the imposition of a fine in a case of disobedience to an order which is more than casual, accidental or unintentional. This endorsement was evidently based on the reasoning in the decisions to which we have referred, including an appreciation of the unsatisfactory consequences which would flow from the adoption of the view that there is no power to fine in such cases. To those reasons we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional. It is immaterial that the existence of the power to impose a fine for wilful disobedience to a court order may not have been explicitly recognized in 1903.

87. Non-compliance with orders will constitute wilful disobedience unless such non-compliance is “casual, accidental or unintentional.” The nature and extent of that non-compliance are matters which may be taken into account in determining whether the non-compliance is deliberate. Of course, in circumstances where a person such as the respondent publishes material expressing a readiness to defy compliance with orders of this Tribunal it may more readily be concluded that any non-compliance is deliberate.

88. I should add for completeness that it is arguable that the several orders of this Tribunal restraining the respondent from further publication of unlawful material do not fall into the category of private rights. Once made, those orders have a more compelling public purpose with concomitant greater concern to ensure, in the interests of the administration of justice, that they are complied with.

89. Finally, I refer to observations of Basten JA (Sackville AJA agreeing) in the NSW Court of Appeal in Mohareb v Palmer [2017] NSWCA 281. The fundamental question to be determined is whether the conduct which is the subject of the allegations is “capable of amounting to contempt.” The determination of this question involves a consideration of the relevant factual matters coupled with a requirement to afford the respondent an opportunity to address the Tribunal about whether or not the matter should be referred to the Supreme Court. I shall proceed accordingly.

An analysis of the conduct of the respondent

90. I now proceed to consider the conduct of the respondent which I have outlined above in the context of whether I can be satisfied that it appears to me on my own view that the respondent is guilty of contempt of the Tribunal so that the respondent may be given an opportunity of considering and addressing the Tribunal about whether a referral of that conduct should be made to the Supreme Court.

91. It appears to me that the respondent’s conduct constituted by the remarks made by him in the publication referred to in paragraphs [7], [8] and [9] and in the statement referred to in paragraph [17] is capable of constituting contempt. I have described this conduct earlier in [83].

92. It appears to me that the respondent’s conduct which is outlined below is capable of constituting contempt of this Tribunal;

1. the failure of the respondent to make payment of the monies ordered to be paid on 22 January, 2014 as set out in paragraph [38] above

2. the failure of the respondent to refrain from publishing further material “to the same or similar effect” by order of the Tribunal made on 22 January 2014 as found in paragraph [50] above

3. the failure of the respondent to refrain from publishing materials to the same or similar effect on any website controlled by him as ordered by the Tribunal on 14 May 2014 as set out in paragraph [43] above constituted by the publication of material identified in subsequent Decisions of the Tribunal

4. the failure of the respondent to make payment of the monies ordered to be paid on 14 May 2014 as set out in paragraph [44], [49] and [50] above

5. the failure of the respondent to refrain from publishing material as identified in paragraph [54] above pursuant to order made on 25 June 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal

6. the failure of the respondent to refrain from publishing material as identified in paragraph [56] above pursuant to an order made on 24 September 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal

93. For the purpose of further clarification of the conduct of the respondent which constitutes contempt of this Tribunal, I have noted that the first occasion on which this Tribunal made an order restraining further publication of the same material or material to similar effect was 22 January, 2014 as referred to in paragraph [50]. Evidence of breach of this order and subsequent orders to similar effect is provided by subsequent orders of this Tribunal made on 25 June, 2015 concerning publications on 21 and 23 March, 2014, the publication the subject of the order of 21 January, 2016 as referred to in [57], a publication on 14 March, 2014 as identified in paragraph [60], a publication made in May 2015 as identified in [64], a publication on 14 September, 2016 as identified in [66], a publication on 30 July, 2016 as identified in [70] and [72], and a publication made in late 2016 as identified in paragraph [73].

Orders

94. I make the following orders consequent upon the finding that the respondent has engaged in conduct as described in [91], [92] and [93] above that is capable of constituting contempt of this Tribunal;

1. These proceedings are stood over to enable the respondent to provide such evidence and to make such submissions as he may wish at a further hearing as to whether the Tribunal should refer his conduct to the Supreme Court.

2. The applicant may file and serve before 20 April 2018 any evidentiary material which he wishes to make available to the Tribunal limited to whether or not the respondent has complied with orders made by this Tribunal. Such evidence must be in sworn form, or, if not, the applicant must be prepared to be sworn as to its truthfulness at the next hearing.

3. Any evidence which the respondent wishes to provide should be filed in the Registry before 4 May 2018 and served on the applicant.

4. The proceedings are stood over for further hearing at 10 am on 11 May 2018.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 April 2018