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 his readers to view that content and, as a consequence, its publication constitutes a “public act” of Mr Sunol.

3. These reasons address the application made by Mr Sunol for orders that each complaint be dismissed under s 102 of the Act on the grounds that:

1. the President failed to discharge his statutory functions making the referral of the complaints to the Tribunal “void”

2. the offending content “did not exist” at the time it was investigated by the President and later when referred to the Tribunal

3. the complaints of vilification are misconceived and lacking in substance because:

1. there is “no evidence” that Mr Burns is a homosexual person

2. there is “no evidence” that the offending material has ever existed

3. there is “no evidence” that the publication of the offending content was his “public act”

4. the proposition that the offending content had the capacity to incite hatred towards, serious contempt for, or severe ridicule of Mr Burns or homosexual persons as a group, is untenable.

4. the conduct complained of does not constitute unlawful vilification because the exception in s 49ZT(2)(c) applies

5. the complaints are vexatious because Mr Burns is a “serial complainant”

6. the complaints of victimisation are misconceived and lack substance.

4. For the reasons discussed below I have decided not to exercise the power to dismiss the complaints in part or whole.

The power to dismiss a complaint

5. Section 102 of the Act provides that the Tribunal may, at any stage in proceedings, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under ss 92(1)(a)(i) or (ii) or (b). Section 92 relevantly provides:

(1) If at any stage of the President’s investigation of a complaint:

(a) the President is satisfied that:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

…

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint.

6. The discretion to dismiss a complaint summarily, i.e. without full hearing, under s 102 (formerly s 111(1) of the Act) must be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]; Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73.)

7. As the Tribunal commented, in Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36], the need for caution in dismissing a complaint is even more apparent in cases where the application to have the complaint dismissed is made prior to the adducing of the applicant’s evidence at the substantive hearing.

8. Consistent with the approach taken by the authorities, in deciding whether to exercise the power to dismiss the complaints, or part of the complaints, summarily, I have taken the approach of taking the facts on which Mr Burns relies at their highest and asking whether they reveal an arguable case to which Mr Sunol should answer: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]–[26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].

Outline of the complaints

Complaint 1: 1410195

9. Lodged with the President on 14 March 2014, Mr Burns stated in this complaint that material posted on Mr Sunol’s website between 5 March and 7 March 2014, amounted to “homosexual vilification and serious homosexual vilification”.

10. The material the subject of this complaint includes comments published on Mr Sunol’s website, purportedly written by Luke McGee, and a link to a website, “Right Wing America”. Mr Burns contends that content vilifies homosexual men because it conveys the message that homosexual men are child molesters.

Complaint 2: 1410218

11. Lodged with the President on 17 March 2014, in this complaint Mr Burns alleged that material appearing on Mr Sunol’s website on 14 March 2014 contains a link to a YouTube clip purportedly prepared by Luke McKee, which included the statement, “Gay men are three times more likely to rape children”. In addition, Mr Burns alleges that comments published on Mr Sunol’s website suggest that he has acted inappropriately with children.

12. In this complaint Mr Burns also alleges that Mr Sunol has victimised him by, among other things, publishing a statement that he is corrupt.

Complaint 3: 1410717

13. Lodged on 8 September 2014, in this complaint Mr Burns asserted that material appearing on Mr Sunol’s website on 5 September 2015 constitutes both homosexual vilification and victimisation. With respect to the material said to constitute homosexual vilification Mr Burns points to statements such as, “Stop Gary Burns criminalising dissent of ‘Gay Dads’ Baby Rape”.

Ground 1: Failure by President to exercise his statutory duty to consider argument

14. Mr Sunol asserts that the President “mindlessly flicked” on the complaints to the Tribunal without any proper consideration of their merits and, in so doing, failed to exercise his “statutory duty to consider”. He asserts the President failed to among other things:

1. consider what “ameliorative steps” he had taken to address Mr Burns’ concerns

2. address whether the elements necessary to establish a complaint of homosexual vilification were established

3. make a determination on the “material facts”

4. seek to resolve the complaints by conciliation.

15. He asserts that as a consequence the President’s referral of the complaints to the Tribunal was “invalid” and must be “thrown out”. He seeks orders that all complaints be remitted to the President for “management plan”.

16. To put Mr Sunol’s argument in context it is necessary to briefly outline the statutory functions of the President and the Tribunal.

17. Part 9 of the Act sets out the respective functions of the President and the Tribunal in relation to complaints. Contained in Part 9, s 87A provides that a complaint may be made by a person(s) that another person(s) has contravened a provision of the Act. The complaint must be made in writing and lodged with the President (ss 89, 89A). The President must determine whether or not a complaint is to be accepted or declined, in whole or in part (s 89B). Section 89B(2) provides that the President may decline a complaint if:

Acceptance or declining of complaints by the President

…

(a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or

(b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or

(c) the conduct complained of could amount to a contravention of a provision of this Act (not including section 20D, 38T, 49ZTA or 49ZXC) for which a specific penalty is imposed, or

(d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or

(e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint.

…

18. Section 93C of the Act lists the circumstances where the President “is to refer the complaint to the Tribunal”:

93C Other referral of complaints to Tribunal

If the President:

(a) is of the opinion that a complaint cannot be resolved by conciliation, or

(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or

(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal, or

(d) is satisfied that all parties wish the complaint to be referred to the Tribunal and that it is appropriate in the circumstances to do so,

the President is to refer the complaint to the Tribunal.

Note : The President may also refer a complaint to the Tribunal under section 90B (5).

19. As Mr Sunol correctly points out, on receipt of a complaint the President is required to do a number of things. He or she must decide whether to accept or decline the complaint (s 89B) and to investigate the complaint (s 90). The President may require the complainant or the person against whom the complaint is made to provide information (s 90B). The President may also, at his or her discretion, endeavour to resolve the complaint by conciliation (s 91A).

20. Mr Sunol has not identified any provision in the Act which would permit the Tribunal to refuse to determine a complaint referred under s 93C where the Tribunal had formed the view that the President failed to undertake one or more of things listed above or that none of the matters listed in para (a) to (d) of s 90B were satisfied. Nor has Mr Sunol identified any provision of the Act or any legislation which gives the Tribunal oversight responsibilities or powers in relation to the President or the Board. The Tribunal does not have, contrary to what Mr Sunol believes, an inherent power to decline a complaint, even if it found there had been some defect in the manner in which the President discharged his/her statutory functions in relation to that complaint. The Tribunal is a creature of statute and its powers are limited to those conferred by Parliament.

21. For these reasons it is not open to me to dismiss the complaints on this ground. Nor do I have the power to remit the matter to the President “for management”.

Ground 2: Offending content “did not exist at time of decision”

22. Mr Sunol contends that Complaint 3 must be struck out because when the President referred that complaint to the Tribunal the offending content “no longer existed”. While not entirely clear if Mr Sunol makes the same claim in relation to Complaints 1 and 2, for current purposes, I will assume but not decide that, at the time of referral to the Tribunal, the offending content in relation to all complaints had been removed from Mr Sunol’s website and relevant third party websites.

23. Mr Sunol argues that the decision by the President to refer the complaints in circumstances where the offending material has been removed provides yet another example of the President’s failure to properly discharge his statutory functions. Mr Sunol contends that, in determining whether there has been a contravention of ss 49ZT and 50, the Tribunal must be satisfied of the “time of application” and “time of decision” criteria. By this, I understand Mr Sunol to mean that the Tribunal must be satisfied that the offending content is in existence at the time it determines the complaint.

24. This argument is misconceived. There is the nothing in the Act that restricts the President from referring to the Tribunal, or the Tribunal from determining, a complaint where the alleged contravention of the Act has ceased. The only provision in the Act to imposes a temporal requirement for the making of a complaint is s 89B(2)(b), which provides that the President may decline a complaint if the whole or part of the conduct complained about occurred more than 12 months before the making of the complaint.

Ground 3: The complaints of unlawful vilification are misconceived and lacking in substance

25. Mr Sunol contends that the complaints of unlawful homosexual vilification lack substance because there is no evidence to support each of the elements necessary to establish a contravention of s 49ZT of the Act. Specifically, he contends that there is no evidence that:

(a) Mr Burns is a homosexual person

(b) the offending material was ever in existence

(c) the publication of the offending content is his “public act”.

26. In addition, he argues that the proposition that the offending material had the capacity to incite hatred towards, serious contempt for, or severe ridicule of Mr Burns or homosexual people is untenable.

(i) No evidence that Mr Burns is a homosexual person

27. As Mr Sunol correctly points out, a complaint of vilification can only be made by a person who, to use the language of s 88 of the Act, “has the characteristic that was the ground for the conduct that constitutes the alleged contravention”. In short, to bring a complaint of homosexual vilification Mr Burns must have the relevant characteristic, namely being a homosexual person.

28. Mr Sunol contends that there is no evidence that Mr Burns is a homosexual person and therefore he lacks standing to bring the complaint.

29. The so-called “no evidence” test was considered by an Appeal Panel of one of the predecessors of the Civil and Administrative Tribunal of New South Wales (NCAT), the NSW Administrative Decisions Tribunal (ADT), in Margan v University of Technology, Sydney [2003] NSWADTAP 65 (which dealt with the earlier version of s 102). The Appeal Panel observed (at [11]):

Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of `taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.

30. The issue of how a Tribunal should approach the task of determining whether there is some evidence to support the facts on which a complaint rests was also examined in Z (No. 3) v University of A [2001] NSWADT 182. That decision concerned an application to join persons to proceedings involving complaints of unlawful discrimination. No evidence had been filed at the time the application was considered and the only material before the Tribunal was the President’s Report and Points of Claim. After examining (at [45]–[47]) decisions where it had been necessary to have regard to "evidence" relied on by the complainant in the early stages of proceedings, the Tribunal concluded that the proper approach was to ask “…Taking the complainant’s case at its highest, are his assertions [of unlawful discrimination] capable of being converted into evidence?”. I will adopt that approach in this decision.

31. In Points of Claim filed in respect of each complaint, Mr Burns claims he is a homosexual person. That assertion is capable of being converted into evidence. For that reason I reject the proposition that at this stage of the proceedings there is “no evidence” that Mr Burns has standing to bring the complaints.

(ii) No evidence that the offending material existed at the time(s) alleged by Mr Burns

32. Mr Sunol contends that is simply “no evidence” that, in respect of any of the complaints, the offending material existed at the times Mr Burns claimed to have viewed it.

33. In Complaint 3, Mr Burns claimed that he viewed the offending material on 5 September 2014. In addition, he provided the President with a copy of the offending material, which he claims to have printed from Mr Sunol’s website or relevant third party websites, at the time of, or shortly after viewing that material. He repeated those claims in his Points of Claim. Mr Burns made similar claims in the complaints lodged with the President and Points of Claim filed with the Tribunal, in respect of Complaints 2 and 3.

34. It may ultimately be, as Mr Sunol contends, that none of the offending material existed as claimed by Mr Burns. However, for the purpose of the dismissal application it cannot be said there is “no evidence” of its existence. The claims made by Mr Burns in his complaints to the President and Points of Claim, is material capable of being converted into evidence.

(iii) No evidence that the publication of the offending material was a “public act” of Mr Sunol

35. Mr Sunol contends that the publication of the offending material was not his public act but the public act of other people. It follows, he argues, that for the purpose of s 49ZT(1) of the Act he is not responsible for the publication of that material. Mr Burns disagrees.

35. Section s 49ZT(1) provides:

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.

..

37. The term ”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

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.

38. In respect of each complaint, the offending material broadly falls into two categories: (i) material published on Mr Sunol’s website, which he contends he published on behalf of another person(s) (the website content); (ii) material published on third party websites, in circumstances where a link to those websites had been placed on Mr Sunol’s website (third party content).

39. To put Mr Sunol’s argument in context, reproduced below is an extract of the offending material relating to Complaint 2. While there are differences between that content and the content the subject of Complaints 1 and 3, it illustrates the distinction between what I have termed “website content” and “third party content”.

40. extract (26.1 KB, pdf)

41. With respect to the statement appearing on Mr Sunol’s website “Proof a gay man is three times more likely to rape children! ...” (see above), Mr Sunol contends that the publication of that statement is not his public act, because he merely reproduced that statement at the request of Mr McKee.

42. In relation to the third party content, which Mr Sunol apparently concedes was able to be accessed via links posted on his website, Mr Sunol contends he is not responsible for its publication. He points out that that material is not dependent on his website for its existence. He argues that he has “absolutely no control” over that content or its publication. Furthermore, he contends that any statement appearing on his website in relation to either the website content or third party content is “nothing more than a direction to the reader to go to another website not of [his] making ‘for all to read’ ”.

43. Mr Sunol says that publication of a link on his website is not enough to establish that he is responsible for third party content. He argues that the test propounded by Mr Burns, “the encouragement test”, is not the correct test and “half a test is no test at all”. Citing in support the following passage from Burns v Sunol [2012] NSWADT 246, Mr Sunol argues that in determining whether he is liable for any third party content the Tribunal must, among other things apply the “responsibility test” and the “operation test”:

34.With regard to the first two publications in this group of three (nos. 13 and 14), this argument by Mr Sunol is not persuasive, for two reasons. The first of these is that the publications contained material that he himself composed. The second is that his website expressly invited users who had logged into it to click on the requisite phrase and thereby gain access to the publications. He directed users to the link by putting on his website the following statement (quoted above in the context of publication no. 13): 'NB: this is cut and pasted material taken from online which is written by me to others some seven to eight years ago around 2003.'

35.On the other hand, it is not clear from the evidence relating to publication no. 15 that any such invitation existed on a website maintained by Mr Sunol. Mr Sunol did not deny that he composed an email including the material in question, that this material was accessible on the internet on a website maintained by someone other than himself, or indeed that it was possible for internet users who had logged into his website to discover the link giving them access to the material. But we do not believe this to be enough to render Mr Sunol responsible for the 'public act' of communicating the material to the public by means of the internet.

44. With respect to the content which appears on Mr Sunol’s website, it is not immediately apparent how it can be maintained that there is “no evidence” that its publication was not his public act, even if it is accepted that he placed that content on his website at the request of Mr McKee or other persons.

45. However I accept that with respect to the third party content the issue of culpability is less straightforward. Determining whether that content is a public act of Mr Sunol, consistent with the approach taken by the Tribunal in Burns v Sunol [2012] NSWADT 246, requires consideration to be given to the context in which the impugned link appears, including any surrounding words and images.

46. In the interests of completeness, I note neither party addressed whether any third party content fell within par (c) of the statutory definition of “public act”. This requires consideration to be given to whether, by placing the relevant link on his website, Mr Sunol (i) was distributing or disseminating the relevant third party content, and (ii) had knowledge that the third party material promoted or expressed hatred towards, serious contempt for, or severe ridicule of, Mr Burns or homosexual persons.

47. I do not agree with the proposition advanced by Mr Sunol that there is “no evidence” that any part of the offending materiel was his public act. Whether he is liable for any part of the offending material is a question of fact and law and requires an assessment to be made of each public act. In my view it would be premature at this stage of the proceedings to dismiss the complaints on this ground.

(iv) Proposition that the offending material had the capacity to incite is untenable

48. Mr Sunol contends that the offending material neither incited nor had the capacity to incite hatred towards, serious contempt for, or severe ridicule of either homosexual persons or Mr Burns on the ground of their/his homosexuality. He contends that, contrary to the authority of Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207, Mr Burns “misstates the test” by suggesting that whether the offending content had the capacity to incite must be assessed by reference to his own reaction, as opposed to the reaction of the “ordinary reasonable person”.

49. The vilification provisions 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) and Jones v Trad [2013] NSWCA 389 (Jones). The following principles relevant to this matter may be distilled from those authorities:

(a) 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])

(b) “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])

(c) for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41])

(d) 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])

(e) 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])

(f) 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]).

50. Mr Sunol has made detailed submissions about the capacity of the offending material to incite. He correctly points out that s 49ZT requires an objective assessment to be made. In undertaking that assessment, the Tribunal must:

(a) identify those parts of the offending material said to constitute a “public act”

(b) identify the relevant audience or group to whom the act was directed

(c ) determine whether each public act had the capacity to incite one of the relevant reactions in the “ordinary” or “ordinary reasonable” member of the relevant audience or group. (As pointed out by the Tribunal in Trad v Jones (No 7) [2014] NSWCATAD 225 at [34] there is a divergence of opinion as to whether that assessment is to be made by reference to the "ordinary member” or “ordinary reasonable member” of the relevant audience or group.)

51. Whether any of the offending content has the capacity to incite one or more of the relevant reactions requires the making of an evaluative judgement after undertaking the steps referred to above. As is apparent reasonable minds may differ on whether a particular public act has the capacity to incite hatred towards, serious contempt for, or serious ridicule of homosexual persons in the “ordinary” or “ordinary reasonable” member of the relevant audience or group.

52. There may be complaints alleging unlawful vilification where the proposition that the impugned public act had the capacity to incite is “manifestly groundless” making it appropriate to exercise the power to dismiss the complaint summarily. Examples may include where the impugned public act neither explicitly nor implicitly refers to the person or group allegedly to be vilified. I am not persuaded that the public acts about which Mr Burns complains fall into that category and therefore decline to exercise the power to dismiss the complaints at this stage.

Ground 4: The exception in s 49ZT(2)(c) applies

53. Mr Sunol contends that the offending material is not unlawful by reason by s 49ZT(2)(c) which provides:

(2) Nothing in this section renders unlawful:

…

(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.

54. He asserts that each offending publication was done reasonably, in good faith and in the public interest, to encourage debate about matters of public importance.

55. Mr Sunol bears the onus of establishing that this exception applies (s 104 of the Act). At this stage of the proceedings he has adduced no evidence which could support a finding that any of the alleged public acts were done reasonably, in good faith and in the public interest. Accordingly, it would be inappropriate to exercise the power to dismiss the complaints at this stage of the proceedings.

Ground 5: The complaints are vexatious

56. Mr Sunol contends that Mr Burns is a “serial complainant” and has embarked on a vendetta against him by making a “conveyor belt” of complaints. He argues that if, as claimed, Mr Burns was genuine in wanting to stop the publication of allegedly vilifying material placed on third party websites, he would have lodged complaints about the “ultimate author” of that material. He claims that Mr Burns’ true motive for making complaints about him is to extract payment “under threat of complaint going through to full process”. He claims that Mr Burns’ conduct in making complaints about him is vexatious, spiteful and nothing more than a personal attack on him.

57. In Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 an Appeal Panel of the ADT considered the meaning of the word “vexatious” in s 111(1) of the Act (the earlier version of s 102). The Appeal Panel stated that this bases for dismissal was concerned with the objective character of the complaint, describing a vexatious complaint as one which has no foundation in fact. The Appeal Panel went on to state (at [31]) that proceedings can, however, be vexatious if:

1. they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless." Attorney-General v Wentworth (1988) 14 NSWLR 481, per Roden J at 491.

The Panel went on to observe (at [32]) that it is clear from these authorities that the complainant’s motives may also be relevant in determining whether a complaint is vexatious.

58. For the reasons discussed above it could not be said that any of complaints fall within the third category nominated by the Appeal Panel in Crewdson. Nor on the basis of the submissions made by Mr Sunol and on the available evidence could I be satisfied that the complaints were made for the purpose of annoying or embarrassing Mr Sunol, or for some collateral purposes. That conclusion should not be read to mean that in my view the number and frequency of complaints is irrelevant to the determination of whether a complaint can be characterised as “vexatious”.

Ground 6: The complaints of victimisation lack substance

59. In Complaints 2 and 3, Mr Burns alleged that Mr Sunol had victimised him within the meaning of s 50 of the Act. Section 50 of the Act provides:

50 Victimisation

(1) It is unlawful for a person (

"the discriminator" ) to subject another person (

"the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

60. To succeed in his complaints of victimisation, Mr Burns must establish:

First, that he did one of the things listed in s 50(1)(a) to (d).

Second, that Mr Sunol caused him to experience something.

Third, that he suffered some consequential “detriment”.

Fourth, that detriment must have occurred “on the ground” that he did one of the things listed in s 50(1)(a) to (d).

61. In Complaint 2 Mr Burns alleged that, by identifying him and providing links to published decisions relating to complaints he had lodged about Mr Sunol, Mr Sunol subjected him to “a detriment”.

62. In Complaint 3 Mr Burns alleges that Mr Sunol subjected him to a detriment by publishing statements on his website which state, or when read together with third party content convey the meaning, that:

he is corrupt

by making complaints he is abusing the courts

63. As best I can understand, Mr Sunol appears to contend that there is “no evidence” to support each of the elements necessary to establish a complaint of victimisation. I also understand him to argue that the statement that Mr Burns is corrupt and is abusing the courts is not false and therefore the defence contained in s 50(2) of the Act applies.

64. At this stage of the proceedings I could not be satisfied that there is “no evidence” to support each of the elements necessary to ground a complaint of victimisation.

Form of orders sought by Mr Burns

65. Mr Sunol has made detailed submissions about the form of orders sought by Mr Burns. It is not necessary to address those submissions for the purpose of his dismissal application.

Orders

66. The application to dismiss Complaints 1, 2 and 3 (1410717, 1410218, 1410195), is dismissed.

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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: 25 August 2015