Burns v Sunol

[2015] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Burns v Sunol [2015] NSWCATAD 178
Hearing dates:	1 June 2015
Date of orders:	25 August 2015
Decision date:	25 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	The application to dismiss Complaints 1, 2 and 3 (1410717, 1410218, 1410195), is dismissed.
Catchwords:	PRACTICE AND PROCEDURE — dismissal of complaint under s 102 of the Anti-Discrimination Act 1977 — whether complaint is vexatious, misconceived or lacking in substance — meaning of expression “taking the evidence at its highest” 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:	Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Alchin v Rail Corporation NSW [2012] NSWADT 142 Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 Margan v University of Technology, Sydney [2003] NSWADTAP 65 Z (No. 3) v University of A [2001] NSWADT 182 Burns v Sunol [2012] NSWADT 246 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 Sunol v Collier and anor. (No 2) [2012] NSWCA 44 Jones v Trad [2013] NSWCA 389 Trad v Jones (No 7) [2014] NSWCATAD 225 Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4
Category:	Procedural and other rulings
Parties:	Garry Burns (applicant) John Sunol (respondent)
Representation:	Mr Burns (in person) Robert Balzola and Associates (Respondent)
File Number(s):	1410195, 1410218, 1410717
Publication restriction:	None

Reasons for decision

1. Mr Garry Burns has lodged three complaints (the complaints) with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) about Mr John Sunol, the respondent in these proceedings. The complaints relate to 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 thought to be homosexual. In two of the complaints Mr Burns also alleges that some of the content published by Mr Sunol amounts to victimisation within the meaning of s 50 of the Act.

2. The content about which Mr Burns complains (the offending content) was either published on a website operated by Mr Sunol or on websites operated by third parties (third party content). With respect to the third party content, Mr Burns contends that Mr Sunol invited…