Burns v Sunol

[2017] NSWCATAD 215

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Burns v Sunol [2017] NSWCATAD 215

Hearing dates:

20 February 2017

Date of orders:

30 June 2017

Decision date:

30 June 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Principal Member
J Newman, General Member

Decision:

(1) Complaint is substantiated.

Catchwords:

HUMAN RIGHTS — homosexual vilification — meaning of “public act” — whether communication to the public of material on a third party website is a “public act” of the alleged vilifier — whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual persons

 

PROCEDURE—bias — apprehended bias — actual bias

DAMAGES — assessment of damages under the Anti-Discrimination Act 1977

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Burns v Dye [2002] NSWADT 32
Burns v Sunol [2012] NSWADT 246
Burns v Corbett; Gaynor v Burns [2017] NSWCA 3
BY v Director General, Attorney General's Department [2002] NSWADT 79
Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]
Margan v Manias [2014] NSWCATAP 16
Margan v Manias [2015] NSWCA 388
Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
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

Category:

Principal judgment

Parties:

Garry Burns (Applicant)
John Sunol (Respondent)

Representation:

In Person (Applicant)
In Person (Respondent)

File Number(s):

2016/00378400

REASONS FOR DECISION

1. Since 2012, Garry Burns has lodged a number of complaints against John Sunol with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”). Central to each complaint is the allegation that John Sunol has communicated material via the internet which vilifies homosexual people. The Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for a person, by a “public act”, to incite hatred towards, serious contempt for, or severe ridicule of, a person on the ground that the person(s) is, or is thought to be, homosexual: s 49ZT.

2. 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.

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

Preliminary applications

4. Before considering the substantive issues raised in the Complaint, it is necessary to address two preliminary applications made by Mr Sunol seeking (i) that the Tribunal recuse itself from determining the Complaint, and (ii) that he be permitted to call Luke McKee to give evidence.

Should the Tribunal recuse itself from determining the Complaint?

5. In written submissions under the heading, “Apprehended bias”, Mr Sunol makes two submissions. The first appears to relate to the doctrine of precedent, the second to an allegation of actual and apprehended bias in the form of prejudgement.

The precedent argument

6. Mr Sunol contends that previous decisions made by the NSW Civil and Administrative Tribunal (NCAT), and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT), relating to complaints made under the Act by Mr Burns are unreliable because they are “tainted by proven apprehended bias shown by the Deputy President and division head of the Administrative and Equal Opportunity division [of NCAT]”.

7. Apart from listing a number of decisions made by NCAT and the ADT concerning complaints made by Mr Burns of unlawful homosexual vilification, Mr Sunol did not elaborate on the basis for his assertion of “proven apprehended bias” relating to the Deputy President. Nor did he elaborate on the basis for the assertion that the listed decisions were “unreliable”.

8. The claim of apprehended bias relating to the Deputy President is both unparticularised and unsupported, and therefore we are unable to consider it further. However, we deal with what we understand to underlie Mr Sunol’s concern — the belief that that this Tribunal is bound by findings of fact made by the Deputy President.

9. The Tribunal is obliged to follow a statement of legal principle of a court to which decisions of this Tribunal are appealable, relevantly the NSW Supreme Court, the NSW Court of Appeal and the High Court. While we are not bound to follow a statement of relevant legal principle by the Appeal Panel of NCAT or the Tribunal (constituted by the Deputy President), comity demands that we exercise caution before departing from a considered ruling or interpretation of law: BY v Director General, Attorney General's Department [2002] NSWADT 79 at [22] - [23].

10. However, the doctrine of precedent does not bind this Tribunal in respect of findings of fact made by other Tribunals, even where constituted by the Deputy President. Put simply, a finding of fact made by a differently constituted Tribunal that a complaint has been substantiated is irrelevant to our considerations. We must decide each case on its merits. We are required to make findings on the available evidence about the Complaint referred and apply the law to those facts.

The pre-judgement argument

11. Mr Sunol asserts that this Tribunal (constituted by Principal Member, A Britton and General Member, J Newman) has a “conflict of interest” because of its “involvement with prior Burns v Sunol hearings”. Each member of this Tribunal has determined complaints of unlawful vilification made by Mr Burns against Mr Sunol.

12. Mr Sunol has not identified the nature of the “interests” said to give rise to a relevant conflict. It appears he is in fact alleging actual bias or apprehended bias in the form of prejudgement.

13. Apprehended bias arises where a “fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question the [decision-maker] is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6]; Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Michael Wilson & Partners) at [31]. The test is an objective one.

14. The application of the apprehension of bias principle involves a two-step process. The first is the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits. The second is an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner at [8] and Michael Wilson & Partners at [63]. In Michael Wilson & Partners, the plurality stated at [63]:

The bare assertion that a decision-maker appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.

15. Mr Sunol has done nothing more than make the “bare assertion” that because each member of this Tribunal has previously determined complaints made by Mr Burns of unlawful homosexual vilification, this gives rise to an apprehension of bias. He failed to articulate the connection between previous decisions which we have each made and the alleged appearance of bias. Without more, we could not be satisfied that the “fair-minded lay observer”, in possession of the relevant information, might reasonably apprehend that we might not bring an impartial and unprejudiced mind to the determination of the Complaint.

16. Mr Sunol appears also to allege actual bias in the form of pre-judgement. Actual bias requires an assessment of the state of mind of the decision-maker(s): Michael Wilson & Partners at [33]. Actual bias in the form of pre-judgement will be established if the decision-maker’s mind is “[S]o committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [75]; Michael Wilson & Partners at [33].

17. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Hayne J outlined at [185], several distinct elements which underlie the assertion that a decision-maker has prejudged or will prejudge an issue:

The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

18. An allegation of actual bias must be distinctly made and clearly proved; cogent evidence is required; a finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].

19. Apart from referring to the fact that each member of this Tribunal has been a member of Tribunals constituted to determine complaints of unlawful homosexual vilification made by Mr Burns, Mr Sunol has provided no information to assist us to evaluate whether there is some basis for the allegation of actual bias.

20. Mr Sunol has failed to establish either actual bias or a reasonable apprehension of bias. Therefore the application that we recuse ourselves is refused.

Should Mr Sunol be permitted to call Mr McKee to give evidence?

21. Prior to the hearing, Mr Sunol applied for leave to call Mr McKee to give evidence by phone. Mr McKee apparently resides in Vietnam. At a directions hearing held on 7 February 2017, the Tribunal (PM Britton) made orders to the effect that Mr McKee would be permitted to give evidence by phone, if, after considering the issue at the substantive hearing, the Tribunal was satisfied that Mr McKee is likely to be able to give evidence relevant to the matters that are required to be determined in the Complaint.

22. On the day of the hearing after receiving further submissions from the parties, we decided not to give Mr Sunol leave to call Mr McKee to give evidence. In making that decision we had regard to the following issues. First, the fact that there is no dispute between the parties about a number of key factual matters including the fact that the offending passage was written and posted on Mr Sunol’s website by Mr McKee. Second, Mr Sunol’s failure to identify any areas of factual contest about which Mr McKee would be able to give evidence.

23. Mr Sunol’s submission was, in effect, that leave should be given to him to call Mr McKee because Mr McKee was better placed to explain why the offending passage did not constitute unlawful discrimination. He stated that the Tribunal would benefit from hearing from Mr McKee about the “legal and political history about the Sydney homosexual movement, including the formation of the Gay and Lesbian Liaison officers within the NSW Police”.

24. Mr McKee’s views about same sex marriage, the history of the Sydney homosexual movement and associated issues may be of interest to him and others but are not relevant to the issues we are required to address. Our task is not to conduct a wide-ranging review into matters of interest to the parties but to consider whether the Complaint of homosexual vilification made against Mr Sunol is or is not substantiated.

25. We concluded that Mr McKee was unlikely to be able to give any relevant evidence about the matters in dispute and we refused the application.

The complaint of unlawful homosexual vilification

26. On 12 August 2016, Mr Burns lodged a complaint with the President about material he claimed to have read on Mr Sunol’s website on or about 30 July 2016. Attached to the Complaint was a three-page document which Mr Burns claimed had been downloaded and printed from Mr Sunol’s website. The document bore the date 10 August 2016.

27. In Points of Claim filed in NCAT on 16 November 2016, Mr Burns identified the subject of the Complaint as the passage in the downloaded document which was circled by hand appearing under the heading, “Some interesting things will happen”.

28. As the offending passage contains obscene and indecent content, we have decided not to reproduce it in these reasons.

Statutory framework

29. Section 49ZT makes it unlawful for a person to engage in a “public act” which amounts to homosexual vilification:

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.

30. A “public act” is defined by s 49ZS to include:

(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

...

31. Section 49Z states:

A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

Issues for determination

32. Mr Burns claims that the offending passage had the capacity to incite hatred towards, and/or serious contempt for him. The Complaint raises the following issues for determination:

1. Whether Mr Burns has standing to bring the Complaint.

2. Whether the communication of the offending passage was the “public act” of Mr Sunol.

3. If so, whether the communication of the offending passage had the capacity to incite hatred towards, or serious contempt for, Mr Burns.

4. If so, whether one or more of those emotions was incited on the ground that Mr Burns is, or is thought to be, homosexual.

5. If the complaint is found to be substantiated, whether an order should be that Mr Sunol pay compensation to Mr Burns.

33. Mr Burns bears the burden of proving, on the balance of probabilities, each of the above matters

Does Mr Burns have standing to bring the Complaint?

34. In written submissions Mr Sunol alleged that Mr Burns is not a homosexual person and therefore cannot bring a complaint of homosexual vilification.

35. Section 88 of the Act states:

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.

36. Mr Burns testified that he is a homosexual person. At the hearing, Mr Sunol neither challenged nor provided any evidence to contradict that claim.

37. Without some evidence to the contrary, there is not sufficient reason to doubt Mr Burns’ claim to be homosexual. The contention that Mr Burns does not have standing to bring the Complaint is rejected.

Was the publication of the offending passage a public act of Mr Sunol?

38. Mr Sunol contends that, because he neither wrote nor posted the offending passage, the act of communicating the passage via the internet was not his public act. He argues that by making the Complaint against him, and not the “true author” of the passage, Mr Burns is using him as a “useful idiot to manufacture case law”. Citing Burns v Corbett; Gaynor v Burns [2017] NSWCA 3, he asserts that the reason Mr Burns is targeting him rather than Mr McKee is that the Tribunal lacks jurisdiction to entertain a complaint brought against Mr McKee because he resides in Vietnam.

39. Mr Sunol does not dispute that the offending passage was posted on a website that at the relevant time, and to this day, he operated and controlled — Nor is it in contest that the website was available to the public or members of the public on the internet. However, he denies giving Mr McKee permission to put the offending passage on the website.

40. Mr Burns disputes that claim pointing to the comment posted on Mr Sunol’s website on 8 September 2016. Appearing under a link to a youtube clip, apparently prepared and posted by Mr Sunol, that entry reads:

I am very angry that I have been complained about for the 76th time to the Anti-Discrimination Board

Published on Sep 8, 2016

Over articles that I did not write. They were written by Luke McKee from Vietnam whom I gave my password to. Luke is also a victim of the cyberbullying and bullying by [Mr Burns] …

41. 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”.

42. 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.

Consideration

43. It is not in issue that the publication of material on the internet that is accessible without a password is a “form of communication to the public” and constitutes a “public act” within the meaning of s 49ZS(a) of the Act. Nor is it in issue that the offending passage was authored and posted by Mr McKee. The issue between the parties is whether it was Mr Sunol’s “public act”.

44. 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.

45. 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.

46. 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.

43. We find the communication to the public of the offending material was a “public act” of Mr Sunol.

Did the offending passage have the capacity to incite?

48. Mr Burns submits that the offending passage had the capacity to incite hatred towards, and serious contempt for him. He contends that the plain meaning carried by the passage is that he has sexual intercourse with male prostitutes under the age of 18, a claim he strenuously denies.

49. Mr Sunol dismisses as “nonsense” the claim that the offending passage has the capacity to incite hatred towards, or serious contempt for, Mr Burns. He argues that the complaint is misconceived and is in fact an allegation of “criminal defamation” which Mr Burns should pursue in an appropriate jurisdiction.

50. Mr Sunol may be correct that Mr Burns has available a cause of action in defamation. The two concepts may overlap legally. However, the Act does not prevent a person from making a complaint of unlawful homosexual vilification where an action in defamation might be also available.

The relevant principles

51. The element of incitement in the unlawful vilification 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 distilled from those authorities:

1. An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])

2. The word “incite” in s 49ZT means “to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement” (Sunol at [41]; Margan at [11])

3. For a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or there was an intention to incite (Sunol at [41]; Margan at [12])

4. It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons. It must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])

5. The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])

6. In making that assessment, the particular class to whom the act is directed, the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]).

52. NCAT and the ADT have 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:

‘hatred’ means ‘intense dislike; detestation’ (Macquarie), ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford).

‘serious’ means ‘important, grave’ (Oxford); ‘weighty, important’ (Macquarie).

‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).

See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]; Burns v Sunol [2012] NSWADT 246 at [112].

Identification of the relevant audience

53. The relevant audience consists of persons who use the internet and visit Mr Sunol’s website. Apart from Messrs Burns, McKee and Sunol, we have no information about the identity of the persons who viewed the offending passage.

54. Mr Sunol claims that numerous people visit his website. He stated that this claim is based on the number of hits received by the site, which Mr Sunol estimates to be in the thousands, and numerous comments which he has received through his Twitter account about material posted on the website. Mr Sunol claims that some of his “followers” share his views about subjects such as same sex marriage (which he opposes), but many are “just interested in the issues”. He also claims to be followed by cyberbullies such as Mr Burns.

55. Based on Mr Sunol’s evidence, we find that the people who accessed the offending passage on Mr Sunol’s website were not a homogenous group but probably held a diversity of views about homosexuality, ranging from favourable to unfavourable.

Ordinary or ordinary reasonable member of the audience?

56. In Sunol at [32] Bathurst CJ observed that there is a divergence of opinion surrounding the question of whether the assessment of the capacity of the subject public act to incite should be made by reference to the "ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience. The Chief Justice expressed a preference for the question to be answered having regard to the effect of the subject act on an “ordinary member” of the relevant group, reasoning (at [34]):

[T]hat, in my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation.

57. In Jones, Ward JA at [53] referred to, but did not determine, the issue characterising the test as the “ordinary member (or perhaps an ordinary reasonable member)” (at [61], [62]).

58. More recently in Margan, the Court of Appeal appeared to endorse the approach taken by Bathurst CJ in Sunol, stating (at [76]) that the assessment should be made by reference to the ordinary member of the audience to whom the public act is directed, not the ordinary reasonable member.

59. Having regard to the facts of this case, we consider it appropriate to adopt the approach taken by Bathurst CJ in Sunol at [34] and evaluate the capacity of the offending passage to incite by reference to their effect on the notional “ordinary member” of the relevant group to whom the act is directed, namely visitors to Mr Sunol’s website.

Consideration

60. To put the offending passage in context, we reproduce below the immediately preceding passage appearing on the website:

“What if the NSW Anti-Discrimination Act was modified to actually add a proper definition for homosexuality - then my problems would be solved!”

The definition needs to be changed to. A homosexual is a person who does sexual acts with the member of the same sex, and only ever to those people over the legal age of consent for sex or prostitution. This is clearly a better definition that what we have now: "A homosexual is a [male or female] homosexual" leaves what just is a homosexual and what they aren't undefined. This would also ensure children can’t legally be homosexuals because they are too young to do gay sex acts or to be obsessed with wanting to do them.

This is a thought experiment, because though it's medically proven that paedophilia is more common among the gay demographic, lets pretend we put this legal fiction created by Garry himself that 'gays can never be paedophiles’ pushed into case law by the NSWADB enshrined in an amendment to the Anti-Discrimination act and see what will happen when we enforce the legal fiction fairly considering the body of case law paedophilia normalization activist Garry Burns has created under the gay rights banner.

61. As noted we have decided not to reproduce the offending passage. It is necessary, however, to summarise its contents. It states that Mr Burns:

1. Is “ineligible” to sue anyone under the Act because “we are in possession” of leaked emails that Mr Burns hires underage “teen prostitutes”.

2. Sponsors Sri Lankan gay men as partners to apply for visas to live in Australia.

3. Had sex with a teenage boy and treated him as a “piece of meat”.

4. Spammed the author with photographs of his penis.

5. Uses a gay dating website between “rent boy interludes”.

62. The plain meaning conveyed by the passage is that, among other things, Mr Burns uses under-age prostitutes. Read in context, the ordinary reader is also likely to have understood that Mr Burns made false representations to the Department of Immigration that he is the partner of gay male visa applicants from Sri Lanka. For the purpose of the Complaint we understand Mr Burns to complain about this part of the offending passage.

63. As stated, the readers of the offending passage are likely to hold a range of views about homosexuality. The type of emotion (if any) that the passage was likely to have the capacity to invoke, in our view, turns primarily on whether the reader is likely to have accepted the allegations made about Mr Burns as true. While the reasonable ordinary reader might have dismissed those allegations as fantastic and implausible given the colourful and sensationist language used, the ordinary reader might not, especially given the claim of the existence of supporting material in the form of photographs and “leaked emails”.

64. Applying that analysis, the question posed is: did the offending passage have the capacity to incite feelings of hatred toward and/or severe contempt for Mr Burns in the ordinary member of the group. Having regard to the nature of the serious nature of claims made about Mr Burns — that he had sexual intercourse with minors and treated one “like meat” — taken together with the poor regard with which paedophiles are held within Australian society, we conclude that the offending passage had the capacity to incite not merely feelings of dislike or disdain for Mr Burns but feelings of hatred toward and/or severe contempt for him in the ordinary member of the audience.

65. We are satisfied that the offending passage had the capacity to incite each of the relevant emotions.

Did the offending passage have the capacity to incite hatred towards, contempt of Mr Burns on the ground of homosexuality?

66. The final question to be determined is whether at least one of the “real”, “genuine” or “true” reasons for the offending passage having the capacity to incite hatred towards, contempt of Mr Burns was his sexuality: Jones at [98].

67. The offending passage, read in the context of the immediately preceding paragraph, is likely to have the capacity to incite the relevant emotions on a number of grounds. These include Mr Burns’ alleged role in the “campaign” to create the “legal fiction” that gays can never be paedophiles; and his alleged action in having sex with minors and prostitutes. However, having regard to the assertion in the immediately preceding paragraph that homosexuals have a predisposition toward paedophilia, taken together with the express and implicit references littered throughout the passage to Mr Burns’ sexuality, we are satisfied that the offending passage had the capacity to incite hatred towards, contempt of Mr Burns on the ground of his sexuality.

Conclusion

68. The elements of s 49ZT(1) of the Act are established. Mr Sunol did not seek to argue that by the operation of s 49ZTA(2) his conduct was not unlawful. The complaint of unlawful homosexual vilification is substantiated.

Should an order for compensation be made?

69. Mr Burns seeks an order for compensation for non-economic loss, namely hurt and distress. Section 108(1)(a) of the Act states:

108 Order or other decision of Tribunal

…

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

70. In Margan v Manias [2014] NSWCATAP 16, an Appeal Panel of NCAT stated at [39] that damages under s 108(2)(a) of the Act are to be assessed on the basis that they are awarded to compensate the person for loss or damage suffered as a result of the unlawful act. The Appeal Panel noted that while the equivalent principles within tort and contract law provide a guide, they are not “controlling”, citing in support of that proposition Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [23]- [27], [48]). (For a more detailed exploration of the assessment of damages under the Act for non-economic loss, see Burns v Sunol [2012] NSWADT 246 at [111] – [133].)

71. In these proceedings, Mr Burns claimed that the publication over a long period by Mr Sunol of material which vilifies homosexuals and him has caused him great trauma and distress. He stated that he is exhausted from being the target of material placed on Mr Sunol’s website. He stated that he is sickened by the accusation of being a paedophile.

72. In addition, Mr Burns claims the offending passage has caused a reactivation of a post-traumatic stress disorder (PTTD).

73. Mr Sunol opposes the claim for damages. He claims that Mr Burns is a “drama queen” who enjoys the notoriety of making complaints of vilification. He claims Mr Burns has exaggerated his claim of distress and trauma for “mercenary purposes”.

Consideration

74. Both parties were directed to file written evidence which they intended to rely on in support of their respective cases. Mr Burns filed no evidence to support his claim for non-economic loss. Nor did he provide any medical evidence to support the claim that he has been diagnosed with PTSD, or that the condition was “reactivated” by the publication of the offending passage.

75. Mr Burns has failed to discharge the evidentiary onus of proving that any distress or trauma suffered was by reason of the conduct which is the subject of the Complaint. We decline to make an award for damages.

*********

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: 30 June 2017