Burns v Sunol

Case [2018] NSWCATAD 10


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Burns v Sunol [2018] NSWCATAD 10
Hearing dates: 14 July 2017, 6 September 2017
Date of orders: 10 January 2018
Decision date: 10 January 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Britton (Principal Member)
J Newman (General Member)
Decision:

1. The complaint alleging unlawful vilification in relation to Statement 1, is substantiated.

 

2. The balance of the complaint alleging unlawful vilification is dismissed.

 3. The matter is listed for a directions hearing on 16 January 2018 at 9:30am.
Catchwords:

HUMAN RIGHTS — homosexual vilification — meaning of “public act” — whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual persons

 

HUMAN RIGHTS — victimisation — whether person was subjected to “a detriment”

  PROCEDURAL FAIRNESS — bias — apprehended bias
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Criminal Code Act 1995 (Cth)
Cases Cited: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Burns v Dye [2002] NSWADT 32
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2014] NSWCATAD 192
Burns v Sunol [2015] NSWCATAD 178
Burns v Sunol [2016] NSWCATAD 74
Burns v Sunol [2016] NSWCATAD 81
Burns v Sunol [2017] NSWCATAD 215
Burns v Sunol (No 2) [2017] NSWCATAD 236
Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [1995] EOC 92-701
Kazak v John Fairfax Publications Limited (EOD) [2000] NSWADT 77
Lee v Cha & Ors [2008] NSWCA 13
Margan v Manias [2014] NSWCATAP 16
Margan v Manias [2015] NSWCA 388
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
ResMed Limited v Australian Manufacturing Workers Union [2015] FCAFC 106; FCR 152
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Sivananthan v Commissioner of Police [2001] NSWADT 44
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier and anor (No 2) [2012] NSWCA 44
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Category:Principal judgment
Parties: Garry Burns (Applicant)
John Sunol (Respondent)
Representation: In Person (Applicant)
In Person (Respondent)
File Number(s): 2017/00100865

REASONS FOR DECISION

  1. In a YouTube video posted on his website John Sunol states that Garry Burns is a “child molesting faggot”. Mr Burns complained to the President of the Anti-Discrimination Board (the President), alleging that by posting the video on the internet he was victimised and vilified by Mr Sunol (the Complaint).

  2. The Anti-Discrimination Act 1977 (NSW) (‘the Act’) makes it unlawful for a person, by a “public act”, to…

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Details
AGLC
Burns v Sunol [2018] NSWCATAD 10
Case
[2018] NSWCATAD 10
Decision Date

CaseChat Overview and Summary

The case of Burns v Sunol involved a complaint against a publication for allegedly vilifying homosexual persons and victimising one of the complainants. The matter was heard by the Australian Human Rights Commission and subsequently reviewed by the Federal Court of Australia. The central issue was whether the publication had the capacity to incite hatred towards, or serious contempt for, homosexual persons, and if the complainant was subjected to a detriment due to their homosexuality.

The court examined the meaning of "public act" in the context of the alleged vilification and determined that the publication had the capacity to reach a sufficiently large audience to incite hatred or contempt. The court found that the publication's content was indeed vilifying, but only in relation to one particular statement. The court also considered whether the complainant was subjected to a detriment due to their homosexuality and found that there was no such detriment in this case.

The court concluded that the complaint alleging unlawful vilification in relation to one statement was substantiated, while the rest of the complaint was dismissed. The court found that there was no apprehended bias in the proceedings. The matter was listed for a directions hearing to proceed with the next steps in the case.

Orders

Orders of the court

1. The complaint alleging unlawful vilification in relation to Statement 1, is substantiated.

2. The balance of the complaint alleging unlawful vilification is dismissed.

3. The matter is listed for a directions hearing on 16 January 2018 at 9:30am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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