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Burns v Sunol

Burns v Sunol

Case [2016] NSWCATAD 74 19 April 2016

Unlawful Vilification

Detriment

Apology

Anti-Discrimination Act 1977 (NSW)

Human Rights Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Sunol [2016] NSWCATAD 74
Hearing dates: 10 November 2015
Date of orders: 19 April 2016
Decision date: 19 April 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
E Hayes, General Member
Decision:
(1)The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.
(2)The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.
(3)The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.
(4)The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.
(5)Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or operated by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:
This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):
On various dates throughout 2015, I published statements on various websites concerning homosexuality and homosexual people.
NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.
I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.
John Sunol
.
Catchwords:
EQUAL OPPORTUNITY — homosexual vilification — whether a publication was a public act of the respondent — whether the publication had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons

EQUAL OPPORTUNITY — victimisation — meaning of “detriment” — whether loss or damage suffered — whether any detriment suffered was “on the ground” of the person victimised having made complaint of unlawful vilification
RELIF — utility of making restraining order where a restraining order is in existence
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Cases Cited: Bogie v The University of Western Sydney (1990) EOC 92–313
Burns v Dye [2002] NSWADT 32
Burns v Sunol (No 2) [2014] NSWCATAD 126
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2015] NSWCATAD 131
Burns v Sunol [2015] NSWCATAD 178
Burns v Sunol [2016] NSWCATAD 16
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [1995] EOC
Margan v Manias [2015] NSWCA 388
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier (EOD) [2006] NSWADTAP 51
Sunol v…

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 [2016] NSWCATAD 74
Case: [2016] NSWCATAD 74
Decision Date: 19 April 2016

CaseChat Overview and Summary

The matter of Burns v Sunol before the NSW Civil and Administrative Tribunal (NCAT) involved a dispute regarding the vilification and victimisation of homosexual individuals. The complainant, Mr Burns, alleged that the respondent, Mr Sunol, published statements on various websites that amounted to unlawful vilification and victimisation of homosexual individuals. The central issues before the tribunal were whether the publications in question constituted a public act and whether they had the capacity to incite hatred, serious contempt, or severe ridicule towards homosexual individuals. Additionally, the tribunal had to determine whether the complainant suffered any detriment on the ground of having made a complaint of unlawful vilification.

The tribunal found that the statements published by Mr Sunol were indeed public acts and that they had the capacity to incite hatred or serious contempt of homosexual people on the ground of their homosexuality. The tribunal considered that the statements were not published reasonably, as they did not account for the potential harm they could cause to the homosexual community. Furthermore, the tribunal substantiated the complaint of victimisation in relation to the statements published by Mr Sunol, finding that the complainant suffered detriment as a result of making a complaint of unlawful vilification.

The tribunal concluded that the statements published by Mr Sunol constituted unlawful vilification and victimisation of homosexual individuals. Consequently, the tribunal ordered Mr Sunol to publish an apology on all websites he controlled or operated within fourteen days of the decision. The apology must remain visible for the life of the website or at least six months, whichever is the lesser. The specific terms of the apology were outlined in the tribunal's decision. The tribunal's ruling highlights the importance of responsible publishing and the protection of individuals from vilification and victimisation on the ground of their sexual orientation.

Orders

Orders of the court

(1)The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.

(2)The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.

(3)The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.

(4)The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.

(5)Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or operated by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):

On various dates throughout 2015, I published statements on various websites concerning homosexuality and homosexual people.

NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.

I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.

John Sunol

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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Citations

AGLC Citation

Burns v Sunol [2016] NSWCATAD 74

Most Recent Citation

Valkyrie and Hill v Shelton [2023] QCAT 302

Cases citing this decision · 7 of 7 shown

Valkyrie and Hill v Shelton
[2023] QCAT 302 Para 6

…uman Rights) [2021] VCAT 933 at [60]. [191] Burns v Sunol [2016] NSWCATAD 16 at [48], Burns v Sunol [2016] NSWCATAD 74 at [29], 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].…
Tebb v State of New South Wales
[2021] NSWCATAD 104 Para 125

…Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]; see also Burns v Sunol [2016] NSWCATAD 74 at [85] ). There is no direct evidence to indicate that the meeting was called when it was because of Mr Tebb’s complaint nor is there any evidence from which we can…
Burns v Sunol
[2018] NSWCATAD 109 Para 5

…NSWCATAD 131 (25 June 2015), Sunol v Burns [2015] NSWCATAP 207 (24 September 2015), Burns v Sunol [2016] NSWCATAD 16 (21 January 2016), Burns v Sunol [2016] NSWCATAD 74 (19 April 2016), Burns v Sunol [2016] NSWCATAD 81 (29 April 2016), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWC…
Burns v Sunol
[2018] NSWCATAD 78

…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 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…
Burns v Sunol (No 2)
[2016] NSWCATAD 97 Para 13

…fication has been found to be substantiated. See for example, Burns v Sunol [2012] NSWADT 246 and Burns v Sunol [2014] NSWCATAD 61, and Burns v Sunol [2016] NSWCATAD 74. Nonetheless, principles of comity do not require that where a complaint of unlawful homosexual vilification is substantiated, an order in the form o…
Burns v Sunol
[2016] NSWCATAD 81 Para 4

…We considered similar issues in a recently published decision involving the same parties: Burns v Sunol [2016] NSWCATAD 74 ( Burns 2016 ). The subject matter of the complaints which were the subject of that decision is broadly similar to the complaints the subject of these Reasons.…

View all 7 citing cases →

Cases cited in this decision · 13 of 13 shown

Burns v Sunol
[2016] NSWCATAD 16 Para 21

…In Burns v Sunol [2016] NSWCATAD 16 ( Burns 2016 ), the Tribunal (differently constituted) in addressing a similar factual situation involving the same parties identified at [33] the “real issue [as being] whether [Mr Sunol’s] actions in putting the offending link and the surrounding words on his website, is sufficie…
Margan v Manias
[2015] NSWCA 388 Para 27

…by the NSW Court of Appeal 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 ) and summarised at [9] the following principles:…
Burns v Sunol
[2015] NSWCATAD 178 Para 1

…, in contravention of the Act. The Tribunal (constituted by Principal Member Britton), declined to make the orders sought by Mr Sunol ( Burns v Sunol [2015] NSWCATAD 178 (“ Burns 2015” )).…
Burns v Sunol
[2015] NSWCATAD 131 Para 96

…In Burns v Sunol [2015] NSWCATAD 131 the Tribunal (differently constituted) made the following orders:…
Burns v Sunol (No2)
[2014] NSWCATAD 126 Para 81

…is no evidence to refute claim Mr Burns’ claims that when he opened the link appearing on the page it took him to the decision Burns v Sunol (No2) [2014] NSWCATAD 126 on CASELAW, a NSW Government website which publishes decisions of NSW Courts and Tribunals.…
Jones v Trad
[2013] NSWCA 389 Para 27

…detailed judicial consideration, most recently by the NSW Court of Appeal 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 ) and summarised at [9] the following principles:…
Burns v Sunol
[2012] NSWADT 246 Para 21

…is sufficient to make him relevantly responsible for the communication of the offending material”. Adopting the approach taken in Burns v Sunol [2012] NSWADT 246 ( Burns 2012 ), the Tribunal wrote at [34] that “the determination of this issue requires consideration of the context in which the offending link appears,…
Sunol v Collier (No 2)
[2012] NSWCA 44 Para 27

…ons of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal 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 ) and summarised at [9] the following principles:…
Nicholls and Nicholls v Director General, Department of Education and Training (No 2)
[2009] NSWADTAP 20 Para 85

…e of the ‘real’, ‘genuine’ or ‘true’ reasons ( Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).…
Sunol v Collier
[2006] NSWADTAP 51 Para 100

…nlawful vilification is found to be substantiated has been the subject of extensive consideration by, the ADT (see for example, Sunol v Collier (EOD) [2006] NSWADTAP 51).…
Burns v Dye
[2002] NSWADT 32

…ted: Anti-Discrimination Act 1977 (NSW) Cases Cited: Bogie v The University of Western Sydney (1990) EOC 92–313 Burns v Dye [2002] NSWADT 32 Burns v Sunol (No 2) [2014] NSWCATAD 126 Burns v Sunol [2012] NSWADT 246 Burns v Sunol [2015] NSWCATAD 131 Burns v Sunol [2015] NSWCATAD 178 Burns v Sunol [2016] NSWCATAD 16 J…
Sivananthan v Commissioner of Police, NSW Police Service
[2001] NSWADT 44 Para 75

…t means “loss, damage or injury” that is “real and not trivial” (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146). Whether something constitutes a detriment requires an objective not subjective…
Sunil v Burns
[2015] NSWCATAP 207 Para 97

…Mr Sunol’s appeal against the above decision was dismissed: Sunol v Burns [2015] NSWCATAP 207.…

Legislation cited in this decision · 2

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 1)
Defamation Act 2005 (TAS)
1 mention

Medium Neutral Citation:	Burns v Sunol [2016] NSWCATAD 74
Hearing dates:	10 November 2015
Date of orders:	19 April 2016
Decision date:	19 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member E Hayes, General Member
Decision:	(1)The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed. (2)The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated. (3)The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed. (4)The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed. (5)Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or operated by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser: This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT): On various dates throughout 2015, I published statements on various websites concerning homosexuality and homosexual people. NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably. I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality. John Sunol .
Catchwords:	EQUAL OPPORTUNITY — homosexual vilification — whether a publication was a public act of the respondent — whether the publication had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons EQUAL OPPORTUNITY — victimisation — meaning of “detriment” — whether loss or damage suffered — whether any detriment suffered was “on the ground” of the person victimised having made complaint of unlawful vilification RELIF — utility of making restraining order where a restraining order is in existence
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Bogie v The University of Western Sydney (1990) EOC 92–313 Burns v Dye [2002] NSWADT 32 Burns v Sunol (No 2) [2014] NSWCATAD 126 Burns v Sunol [2012] NSWADT 246 Burns v Sunol [2015] NSWCATAD 131 Burns v Sunol [2015] NSWCATAD 178 Burns v Sunol [2016] NSWCATAD 16 Jones v Trad [2013] NSWCA 389 Kazak v John Fairfax Publications Limited [1995] EOC Margan v Manias [2015] NSWCA 388 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Sunol v Burns [2015] NSWCATAP 207 Sunol v Collier (EOD) [2006] NSWADTAP 51 Sunol v…