Burns v Sunol

Case [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

  1. Before considering the substantive issues raised in the Complaint, it is necessary to address two preliminary applications made by…

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Burns v Sunol [2017] NSWCATAD 215
Case
[2017] NSWCATAD 215
Decision Date

CaseChat Overview and Summary

The case of Burns v Sunol was heard in a relevant Australian court, where the plaintiff, Burns, alleged that Sunol had engaged in acts of vilification against him on the basis of his homosexuality. The primary dispute centred around the interpretation of certain terms in the Anti-Discrimination Act 1977, specifically regarding what constitutes a "public act" and whether the publication of material on a third-party website could be considered such an act. Additionally, the case examined whether the publication had the potential to incite hatred or serious contempt towards homosexual individuals. The court was also tasked with determining if there was any bias in the proceedings that would necessitate a change in the composition of the panel.

The central legal issues revolved around the interpretation of statutory language and the potential impact of the alleged vilification. The court had to ascertain if the publication of defamatory material on a third-party website constituted a "public act" within the meaning of the Anti-Discrimination Act. Furthermore, it was necessary to assess whether the publication had the capacity to incite hatred or serious contempt towards homosexual persons. The court also considered whether there was any actual or apprehended bias in the proceedings that might affect the fairness of the decision-making process.

In reaching its decision, the court found that the publication of the material on the third-party website did indeed constitute a "public act" under the Anti-Discrimination Act. The court held that the publication had the potential to incite hatred or serious contempt towards homosexual individuals, thereby satisfying the criteria for vilification. The court also found that there was no actual or apprehended bias in the proceedings. As a result, the complaint was substantiated.

The court ordered that the complaint against Sunol was substantiated, and it directed the parties to take such actions as were necessary under the Anti-Discrimination Act to address the vilification. The court did not order any further specific actions beyond confirming the substantiation of the complaint.

Orders

Orders of the court

(1) Complaint is substantiated.

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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