Burns v Sunol

Case [2016] NSWCATAD 16


Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Burns v Sunol [2016] NSWCATAD 16
Hearing dates:15 July 2015
Date of orders: 21 January 2016
Decision date: 21 January 2016
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
M O’Halloran, Member
M Murray, Member
Decision:

1.   The complaint is substantiated.
2. Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined “on the papers”.
3.   Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined “on the papers”.

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
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Cases Cited: Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2015] NSWCATAD 40
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284
Jones v Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1
Jones v Trad [2013] NSWCA 389
Margan v Manias [2015] NSWCA 388
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1997) 194 CLR 355
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier and anor. (No 2) [2012] NSWCA 44
Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Category:Principal judgment
Parties: Garry Burns (Applicant)
Christopher Sunol (Respondent)
Representation: Solicitors:
G Burns (Applicant in Person)
R Balzola & Associates(Respondent)
File Number(s):1510181

Judgment

  1. In 2014 Garry Burns lodged a complaint with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) about John Sunol, the respondent in these proceedings. The complaint concerns content published on the internet, which Mr Burns contends vilifies homosexuals. Section 49ZT of 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.

  2. The material which is the subject of Mr Burns’ complaint was published on a website apparently operated by a third party, Luke McKee (the offending content). Mr Burns contends that Mr Sunol invited followers of his blog to view the offending content by placing on his blog a…

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Details
AGLC
Burns v Sunol [2016] NSWCATAD 16
Case
[2016] NSWCATAD 16
Decision Date

CaseChat Overview and Summary

The matter before the court was a complaint by the applicant, Burns, against the respondent, Sunol, for alleged homosexual vilification. The dispute centred on a publication by Sunol that Burns claimed was a public act under the Anti-Discrimination Act 1977 (NSW), and had the capacity to incite hatred, serious contempt, or severe ridicule towards homosexual persons. The case was heard by the Anti-Discrimination Board of New South Wales.

The primary legal issue was whether the publication by Sunol constituted a public act as defined by the Anti-Discrimination Act 1977 (NSW), and whether it had the capacity to incite hatred, serious contempt, or severe ridicule of homosexual persons. The court had to determine if the publication was indeed a public act and if it had the potential to incite the specified negative behaviours towards the homosexual community.

In addressing the issue, the court examined the nature of the publication and its potential impact on the public, particularly on homosexual individuals. It found that the publication by Sunol was indeed a public act as it was made available to a wide audience. Furthermore, the court concluded that the content of the publication had the capacity to incite hatred, serious contempt, or severe ridicule of homosexual persons. Consequently, the court substantiated the complaint.

The court ordered that the complaint be substantiated and directed the parties to file documents outlining any orders they sought, along with evidence and submissions, within 14 days of the decision. Additionally, the court instructed the parties to notify each other and the Tribunal of their consent to have the issue of orders determined "on the papers".

Orders

Orders of the court

1. The complaint is substantiated.

2. Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined “on the papers”.

3. Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined “on the papers”.

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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