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Burns v Sunol

Burns v Sunol

Case [2018] NSWCATAD 10 10 January 2018

Human Rights

Procedural Fairness

Human Rights Law

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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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Sunol

Details

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

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Burns v Sunol [2018] NSWCATAD 10

Most Recent Citation

Valkyrie and Hill v Shelton [2023] QCAT 302

Cases citing this decision · 11 of 11 shown

Sturgiss v BlaQ Aboriginal Corporation & Leha
[2025] NSWCATAD 244 Para 109

…In Burns v Sunol [2018] NSWCATAD 10, at [38] – [40], the Tribunal, dealing with a complaint of homosexual vilification, set out relevant legal principles to be applied when considering the element of incitement:…
Valkyrie and Hill v Shelton
[2023] QCAT 302 Para 6

…Burns v Sunol [2016] NSWCATAD 81 at [22], Burns v Sunol [2017] NSWCATAD 215 at [64], Burns v Sunol [2018] NSWCATAD 10 at [59] and Burns v Sunol (No 2) [2017] NSWCATAD 236 at [38].…
Sun v Nationwide News Pty Limited
[2021] NSWCATAD 147 Para 36

…The Tribunal has on a number of occasions and most recently in Burns v Sunol [2018] NSWCATAD 10 at [39] consistently held that the words ‘hatred’ and ‘serious contempt’ in the vilification provisions of the Act are to be given their ordinary meaning and have applied the following definitions:…
Comensoli v Passas
[2019] NSWCATAD 155 Para 13

…As stated in Burns v Sunol [2018] NSWCATAD 10 at [39] – [40]:…
Ekermawi v Commissioner of Police, NSW Police Force
[2019] NSWCATAD 79 Para 57

…As stated in Burns v Sunol [2018] NSWCATAD 10 at [39]:…
Burns v Smith
[2019] NSWCATAD 56 Para 90

…nt to have reported it to the NSW Police Force on the same day. This threatening conduct marks this complaint out from that involved in Burns v Sunol [2018] NSWCATAD 10 .…
Sunol v Burns
[2018] NSWCATAD 259 Para 9

…in from further dealing with that further complaint. The members concerned declined to accede to this request, and published reasons in Burns v Sunol [2018] NSWCATAD 10 on 10 January 2018.…
Burns v Sunol (No 2)
[2018] NSWCATAD 120 Para 1

…int made by Garry Burns to the President of the Anti-Discrimination Board, alleging unlawful homosexual vilification and victimisation: Burns v Sunol [2018] NSWCATAD 10. We concluded that the statement made by John Sunol, the respondent in these proceedings, “I ain’t paying a child molesting faggot $50,000 …” (the of…
Pedro Alfaro trading as Palfaro Cleaning Services ABN: 57 267 431 409 v Taylor
[2018] NSWDC 134 Para 56

…n the NSW Civil and Administrative Tribunal in litigation between parties concerning complaints about the contents of a website, namely Burns v Sunol [2018] NSWCATAD 10, Burns v Sunol [2018] NSWCATAD 78 and Burns v Sunol [2018] NSWCATAD 109. Although the nature of the application before that court was very different,…
Burns v Sunol
[2018] NSWCATAD 109 Para 5

…NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWCATAD 215 (30 June 2017), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)…
Burns v Sunol
[2018] NSWCATAD 78

…[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 Pa…

View all 11 citing cases →

Cases cited in this decision · 26 of 26 shown

Burns v Sunol (No 2)
[2017] NSWCATAD 236 Para 5

…laints have been determined by the Tribunal presently constituted (PM Britton and GM Newman): Burns v Sunol [2017] NSWCATAD 215; Burns v Sunol (No 2) [2017] NSWCATAD 236. Others have been determined by differently constituted tribunals of which PM Britton and GM Newman were members: see for example, Burns v Sunol [201…
Burns v Sunol
[2017] NSWCATAD 215 Para 5

…s of victimisation. A number of these complaints have been determined by the Tribunal presently constituted (PM Britton and GM Newman): Burns v Sunol [2017] NSWCATAD 215; Burns v Sunol (No 2) [2017] NSWCATAD 236. Others have been determined by differently constituted tribunals of which PM Britton and GM Newman were me…
Burns v Sunol
[2016] NSWCATAD 81 Para 5

…were members: see for example, Burns v Sunol [2014] NSWCATAD 192; Burns v Sunol [2015] NSWCATAD 178; Burns v Sunol [2016] NSWCATAD 74; Burns v Sunol [2016] NSWCATAD 81. Some complaints have been determined by Tribunals of which PM Britton and GM Newman were not members: see for example, Burns v Sunol [2014] NSWCATAD…
Burns v Sunol
[2016] NSWCATAD 74 Para 5

…of which PM Britton and GM Newman were members: see for example, Burns v Sunol [2014] NSWCATAD 192; Burns v Sunol [2015] NSWCATAD 178; Burns v Sunol [2016] NSWCATAD 74; Burns v Sunol [2016] NSWCATAD 81. Some complaints have been determined by Tribunals of which PM Britton and GM Newman were not members: see for exam…
Margan v Manias
[2015] NSWCA 388 Para 38

…rt of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 ( Sunol ), Jones v Trad [2013] NSWCA 389 ( Jones ) and Margan v Manias [2015] NSWCA 388 ( Margan ). The following statement of principles may be distilled from those authorities:…
Burns v Sunol
[2015] NSWCATAD 178 Para 5

…y differently constituted tribunals of which PM Britton and GM Newman were members: see for example, Burns v Sunol [2014] NSWCATAD 192; Burns v Sunol [2015] NSWCATAD 178; Burns v Sunol [2016] NSWCATAD 74; Burns v Sunol [2016] NSWCATAD 81. Some complaints have been determined by Tribunals of which PM Britton and GM New…
Resmed Ltd v AMWU
[2015] FCAFC 106 Para 20

…ests on the reasonable lay observer’s perception not a party’s fear of an adverse result: ResMed Limited v Australian Manufacturing Workers Union [2015] FCAFC 106; FCR 152 at [33].…
Isbester v Knox City Council
[2015] HCA 20

…e, 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]…
Burns v Sunol
[2014] NSWCATAD 192 Para 5

…236. Others have been determined by differently constituted tribunals of which PM Britton and GM Newman were members: see for example, Burns v Sunol [2014] NSWCATAD 192; Burns v Sunol [2015] NSWCATAD 178; Burns v Sunol [2016] NSWCATAD 74; Burns v Sunol [2016] NSWCATAD 81. Some complaints have been determined by Tribu…
Burns v Sunol
[2014] NSWCATAD 62 Para 5

…16] NSWCATAD 81. Some complaints have been determined by Tribunals of which PM Britton and GM Newman were not members: see for example, Burns v Sunol [2014] NSWCATAD 62;…
Jones v Trad
[2013] NSWCA 389 Para 38

…bject of extensive consideration by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 ( Sunol ), Jones v Trad [2013] NSWCA 389 ( Jones ) and Margan v Manias [2015] NSWCA 388 ( Margan ). The following statement of principles may be distilled from those authorities:…
Burns v Sunol
[2012] NSWADT 246 Para 40

…See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17].…
Sunol v Collier (No 2)
[2012] NSWCA 44 Para 38

…on provisions of the Act has been the subject of extensive consideration by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 ( Sunol ), Jones v Trad [2013] NSWCA 389 ( Jones ) and Margan v Manias [2015] NSWCA 388 ( Margan ). The following statement of principles may be dist…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 17

…Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ( Ebner ) at [6]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 ( Michael Wilson & Partners ) at [31]. The test is an objective one.…
British American Tobacco Australia Services Ltd v Laurie
[2011] HCA 2 Para 20

…lity, it is the perception of the bystander that provides the yardstick: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at 333 [139]. The reasonable apprehension of bias test rests on the reasonable lay observer’s perception not a party’s fear of an adverse result: Res…
Nicholls and Nicholls v Director General, Department of Education and Training (No 2)
[2009] NSWADTAP 20 Para 52

…on the ground of his homosexuality: Jones at [98]; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].…
Lee v Cha
[2008] NSWCA 13 Para 19

…l as to have knowledge of the circumstances leading to the decision”: Isbester at [23]. As the NSW Court of Appeal pointed out in Lee v Cha & Ors [2008] NSWCA 13 at [40], the application of the test requires an evaluative judgment as to “what the ‘fair minded lay observer’ can be taken to know”.…
South Western Sydney Area Health Service v Edmonds
[2007] NSWCA 16

…des (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: G…
Commissioner of Police, NSW Police v Mooney (No 3)
[2004] NSWADTAP 22

…s 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…
Burns v Dye
[2002] NSWADT 32 Para 40

…See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17].…
Sivananthan v Commissioner of Police, NSW Police Service
[2001] NSWADT 44 Para 64

…ury” that is “real and not trivial”: see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808; Sivananthan v Commissioner of Police [2001] NSWADT 44 at [40]; and Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]. Whether something constitutes a detriment requires an objective not subjective evaluation to be un…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 17

…iced mind to the resolution of the question the [decision-maker] is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ( Ebner ) at [6]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 ( Michael Wilson & Partners ) at [31]. The test is an objectiv…
Kazak v John Fairfax Publications Limited
[2000] NSWADT 77 Para 40

…See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17].…
Webb v the Queen
[1994] HCA 30

…rea 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…
[2014] NSWCATAP 16
[2014] NSWCATAP 16

…95] 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…
Sunil v Burns
[2015] NSWCATAP 207

…han 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…

Legislation cited in this decision · 5

Anti-Discrimination Act 1977 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 16)
Criminal Code Act 1995 (Cth)
1 mention (from Para 45)
Defamation Act 2005 (TAS)
1 mention
Evidence Act 1995 (Cth)
1 mention

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