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Burns v Sunol

Burns v Sunol

Case [2015] NSWCATAD 131 25 June 2015

Defamation

Unconscionable Conduct

Restraining Order

Anti-Discrimination Law

Defamation

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Sunol [2015] NSWCATAD 131
Hearing dates: 7 October 2014
Decision date: 25 June 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Wakefield, Senior Member
J Schneeweiss, General Member
M O’Halloran, General Member
Decision:
In this order, “the material” means:
(a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil.
I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker.
I will not be raped to death in jail while he watches as he says in his threats to me.
(b) Rape little boys, this is same sex marriage.
If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage.
This is the end results of same sex marriage.
Sit back and enjoy yourself whilst this goes on.
(c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring.
(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.
(e) Everybody with common sense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt.
(f) Gay marriage is child abuse.
(2) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.
Catchwords: ANTI-DISCRIMINATION - Homosexual vilification- Public Act- Incitement – Remedies – Restraining Order
Legislation Cited: Anti-Discrimination Act 1977 NSW ss 49ZS, 49ZT, 88, 104, 108
Civil and Administrative Tribunal Act 2013 ss 3(d), 45
Cases Cited: Burns v Corbett [2013] NSWADT 227
Burns v Dye [2002] NSWADT 32
Burns v Sunol [2012] NSWADT 246
Collier v Sunol [2005] NSWADT 261
Collier v Sunol [2008] NSWADT 339
Sunol v Collier (EOD) [2006] NSWADTAP 51
Sunol v Collier (No 2) [2012] NSWCA 44
Category: Principal judgment
Parties: Garry Burns (Applicant)
John Christopher Sunol (Respondent)
Representation: G Burns (Applicant in person)
J C Sunol (Respondent in person)

File Number(s): 1410384

Reasons for decision

Introduction

By these proceedings, Mr Burns makes three complaints that the publication of certain material on his website by Mr Sunol constitutes homosexual vilification in breach of s 49ZT of the Anti-Discrimination Act 1977 NSW. For the reasons which follow the Tribunal finds that Mr Burns’ first two complaints are substantiated and that the third complaint is partly substantiated.

Procedural History

On 24 March 2014, Mr Burns lodged his three complaints with the President of the Anti-Discrimination Board. The President’s delegate accepted the complaints for investigation under s 89B of the Anti-Discrimination Act. The President received further information from Mr Burns on 24 March 2014.
The complaints accepted…

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 [2015] NSWCATAD 131
Case: [2015] NSWCATAD 131
Decision Date: 25 June 2015

CaseChat Overview and Summary

The court presided over a case between Burns and Sunol, addressing the issue of anti-discrimination, specifically homosexual vilification. The matter involved public acts of incitement, with Sunol accused of publishing defamatory material online targeting Burns. The case was heard in the Federal Court of Australia. The legal issues before the court centred on whether Sunol's online publications constituted a public act of incitement and whether these acts were vilifying towards Burns due to his sexual orientation. The court had to determine if the content was indeed discriminatory and if so, whether it was protected under freedom of speech or if it warranted a restraining order.

In delivering the judgment, the court examined the nature and content of Sunol's publications, focusing on their vilifying effect on Burns. The court found that the material published by Sunol contained derogatory and offensive terms directed at Burns based on his sexual orientation. It was determined that these publications were not only discriminatory but also intended to incite hatred towards Burns. The court considered the impact such content could have on the targeted individual and the broader community, finding that it promoted intolerance and could incite harm. Consequently, the court ruled that the material was indeed vilifying and breached anti-discrimination laws.

The court ordered Sunol to refrain from publishing the identified material or similar content in the future on any website. This decision was based on the findings that the publications were discriminatory and incited hatred. The court also emphasised the importance of protecting individuals from such targeted harassment, ensuring that such acts do not go unpunished. The restraining order was seen as a necessary measure to prevent further harm and vilification. The judgment underscored the court's commitment to upholding anti-discrimination laws and protecting individuals from hate speech.

Orders

Orders of the court

In this order, “the material” means:

(a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil.

I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker.

I will not be raped to death in jail while he watches as he says in his threats to me.

(b) Rape little boys, this is same sex marriage.

If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage.

This is the end results of same sex marriage.

Sit back and enjoy yourself whilst this goes on.

(c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring.

(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.

(e) Everybody with common sense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt.

(f) Gay marriage is child abuse.

(2) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Burns v Sunol [2015] NSWCATAD 131

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 8

…urns v McKee [2017] NSWCATAD 66 at [75], and it has been ‘borne in mind’ in Burns v Sunol [2012] NSWADT 246 at [16] and Burns v Sunol [2015] NSWCATAD 131 at [50] (not questioned in an appeal).…
Burns v Sunol
[2018] NSWCATAD 109 Para 5

…e pursuant to order made on 25 June 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal. Burns v Sunol [2015] 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] NSWCA…
Burns v Sunol (No 2)
[2017] NSWCATAD 236 Para 86

…tribunal made orders enjoining Mr Sunol from continuing to publish material which amounts to unlawful homosexual vilification: Burns v Sunol [2015] NSWCATAD 131). Since that time, Mr Sunol has published material found to constitute unlawful homosexual vilification, see for example, Burns 2017 .)…
Burns v McKee
[2017] NSWCATAD 66

…2015] NSWCATAD 158 Burns v Sunol [2012] NSWADT 246 Burns v Sunol No 2 [2012] NSWADT 247 Burns v Sunol [2014] NSWCATAD 2 Burns v Sunol [2015] NSWCATAD 131 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 Collier v Sunol [2005] NSWADT 261 Corbett v Burns [2014] NSWCATAP 42 Dow Jones and Co…
Burns v Sunol (No 2)
[2016] NSWCATAD 97 Para 13

…in existence enjoining Mr Sunol from continuing to publish material of a type, we found to constitute unlawful homosexual vilification: Burns v Sunol [2015] NSWCATAD 131.…
Burns v Sunol
[2016] NSWCATAD 81 Para 34

…In contrast, in Burns v Sunol [2015] NSWCATAD 131 (Burns 2015) , the Tribunal concluded (at [40]) that comments posted by Mr Sunol on his website “had the effect of directing viewers to the subject publication via the link”:…
Burns v Sunol
[2016] NSWCATAD 74 Para 96

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

View all 7 citing cases →

Cases cited in this decision · 33 of 33 shown

Burns v Corbett
[2013] NSWADT 227 Para 28

…r Burns has standing before the Tribunal. Mr Burns in earlier proceedings before the Tribunal has claimed to be a homosexual man; see Burns v Corbett [2013] NSWADT 227 at [25]. He repeated the claim before us. There is no sufficient reason to doubt this claim and so we find the requirement for standing to be satisfi…
Burns v Sunol
[2012] NSWADT 246 Para 30

…Other publications by Mr Sunol on the internet were considered in some detail by the Tribunal in Burns v Sunol [2012] NSWADT 246 which said at [20]:…
Sunol v Collier (No 2)
[2012] NSWCA 44 Para 12

…concern evidence of his intention regarding publication. This is not a necessary element of a contravention of s 49ZT; see Sunol v Collier (No 2) [2012] NSWCA 44 per Bathurst CJ at [41] and Basten JA at [79]. Additionally, it would have been unfair to Mr Burns to allow late evidence of which he had not had notice…
Wotton v Queensland
[2012] HCA 2 Para 32

…]-[45] and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton v The Queen [2012] HCA 2 at [32]. 60 The text of s 49ZT reflects an attempt by Parliament to weigh the policies of preventing vilification and permitting appropriate avenues of fre…
Burns v Cunningham
[2011] NSWADT 240 Para 24

…pra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. 31 Neither party at the hearing suggested that that approach was incorrect. I am prepared to proceed on this basis without finally deciding the issue. It is consistent with the approach taken by the High Court in Water…
Aid/Watch Inc v Commissioner of Taxation
[2010] HCA 42

…ing Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[45] and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton…
Collier v Sunol
[2008] NSWADT 339

…13] NSWADT 227 Burns v Dye [2002] NSWADT 32 Burns v Sunol [2012] NSWADT 246 Collier v Sunol [2005] NSWADT 261 Collier v Sunol [2008] NSWADT 339 Sunol v Collier (EOD) [2006] NSWADTAP 51 Sunol v Collier (No 2) [2012] NSWCA 44 Category: Principal judgment Parties: Garry Burns (Applicant) John Christopher Sunol (Respond…
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police
[2008] HCA 4 Para 11

…upra at [3], [147]-[158]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [11]. 26 I have set out the section above. The first question raised is what is meant by the word ”incite”. The meaning of the word has been considered both in the context of anti-discriminati…
Burns v Laws (No 2)
[2007] NSWADT 47 Para 49

…bunal in Burns v Sunol [2012] pointed out at [15] a different approach to the term ‘incite’ had been taken by the Tribunal in Burns v Laws (No 2) [2007] NSWADT 47, to which the Chief Justice in Sunol v Collier (No 2) referred at [110] –[112]. The Tribunal in Burns v Laws (No 2) had said:-…
Sunol v Collier
[2006] NSWADTAP 51 Para 92

…In Sunol v Collier (EOD) [2006] NSWADTAP 51 in substitution for an order that had been made by the Tribunal at first instance the Appeal Panel made an order that Mr Sunol was to refrain from publishing certain materials “Including statements to the same or similar effect, on any website whether or not controlled by h…
Collier v Sunol
[2005] NSWADT 261 Para 26

…As the Tribunal has identified in Burns v Dye [2002] NSWADT 32 at [14] and Collier v Sunol [2005] NSWADT 261 at [30], in order to succeed in a complaint of homosexual vilification in breach of s 49ZT the complainant must establish four elements being:…
Coleman v Power
[2004] HCA 39

…titutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[45] and by the operation of the Acts Interpre…
Bropho v Human Rights and Equal Opportunity Commission
[2002] FCA 1510

…uman Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105, French J as his Honour then was, in considering an equivalent provision (s 18D of the Racial Discrimination Act (Cth)) expressed the view that an act would be done reasonably in one of the protected activities in the section if it bore a…
John Fairfax Publications Pty Ltd v Kazak
[2002] NSWADTAP 35 Para 10

…of this or related sections: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. 31 Neither party at the hearing suggested that that approach was incorrect. I am prepared to proceed on t…
Jones v Toben
[2002] FCA 1150 Para 92

…ffect’ or which conveys certain imputations: Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 and Jones v Toben [2002] FCA 1150. There is evidence that Mr Sunol has continued to publish material that is similar to the material that the Tribunal found to be unlawful. Although it may be d…
R v Eade
[2002] NSWCCA 257

…red words which command, request, propose, advise or encourage. In R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390, Smart AJ (at [59]) cited what was said by both Stout CJ and Brooking JA with approval. 27 The word has received a similar construction in the context of anti-discrimination legislation: Catch the F…
Veloskey v Karagiannakis
[2002] NSWADTAP 18 Para 53

…As was further noted in Burns v Sunol [2012] at [18] the Appeal Panel in Veloskey v Karagiannis (EOD) [2002] NSWADTAP 18, in a matter determined under s.20C of the Anti-Discrimination Act which defines unlawful racial vilification and like s 49ZT(1) employs the phrase “incite hatred towards, serious contempt for or s…
Burns v Dye
[2002] NSWADT 32 Para 26

…As the Tribunal has identified in Burns v Dye [2002] NSWADT 32 at [14] and Collier v Sunol [2005] NSWADT 261 at [30], in order to succeed in a complaint of homosexual vilification in breach of s 49ZT the complainant must establish four elements being:…
Kazak v John Fairfax Publications Limited
[2000] NSWADT 77 Para 23

…he Fire Ministries supra at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102]. 28 Although it is clear from this review of the authorities that the word ”i…
Amalgamated Television Services v Marsden
[1999] NSWCA 319

…of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that “the ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read…
R v Massie
[1998] VSCA 82

…ulate, to urge, to spur on, to stir up, to animate” (at 854). In R v Massie [1998] VSCA 82; [1999] 1 VR 542, Brooking JA, with whom Winneke P and Batt JA agreed, said at 555 that the word covered words which command, request, propose, advise or encourage. In R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390, Sm…
Amalgamated Television Services Pty Ltd v Marsden
[1998] NSWCA 13

…Tribunal, following the test set out by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that “the ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can…
Brown v Classification Review Board
[1998] FCA 319

…ecognising the high value that the common law (and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that res…
Lange v Australian Broadcasting Corporation
[1997] HCA 25

…ritory legislative power by the implied Constitutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[4…
Coco v the Queen
[1994] HCA 15

…(and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that restrict it. This approach is reinforced by t…
Waters v Public Transport Corporation
[1992] HCA 9

…the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments: “However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance…
Waters v Public Transport Corporation
[1991] HCA 49

…proach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments: “However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of part…
Australian Iron & Steel Pty Ltd v Banovic
[1989] HCA 56

…lly contributing factor’ and ‘a causally operative effect’. Her Honour used these clauses interchangeably. In Waterhouse v Bell (1991) 25 NSWLR 99 at p 106. Clarke JA used the phrase ‘an operative ground’. 64 In Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, the Appeal Panel used the phrase 'a substa…
Dhayakpa v Minister for Immigration and Ethnic Affairs
[1995] FCA 1653

…t of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556.”…
Islamic Council of Victoria v Catch the Fire Ministries Inc
[2005] VCAT 1159 Para 92

…material ‘to the same or similar effect’ or which conveys certain imputations: Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 and Jones v Toben [2002] FCA 1150. There is evidence that Mr Sunol has continued to publish material that is similar to the material that the Tribunal found to…
[1969] 2 QB 58
[1969] 2 QB 58

…at [60]; R v Assistant Recorder of Kingston-Upon-Hull ; Ex parte Morgan [1969] 2 QB 58 at 62; Veloskey v Karagiannakis supra at [25]; Catch the Fire Ministries Inc supra at [14]. 30 The next issue is whether an intention to incite is required for a contravention of s 49ZT. The Tribunal has consistently held that…
Young v Cassells
(1914) 33 NZLR 852

…d in the context of criminal offences involving incitement. In Young v Cassells (1914) 33 NZLR 852, a case concerning the charge of inciting persons to resist constables, Stout CJ described the word as meaning ”to rouse, to stimulate, to urge, to spur on, to stir up, to animate” (at 854). In R v Massie [1998] VSCA 82…
Bropho v Human Rights & Equal Opportunity Commission
[2004] FCAFC 16

…c). In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105, French J as his Honour then was, in considering an equivalent provision (s 18D of the Racial Discrimination Act (Cth)) expressed the view that an act would be done reasonably in one of the protected activities in the s…

Legislation cited in this decision · 6

Civil and Administrative Tribunal Act 2013 (NSW)
3(d), 45 3 mentions (from Para 8)
Acts Interpretation Act 1901 (Cth)
15A 1 mention
Anti-Discrimination Act 1977 (NSW)
1 mention
Defamation Act 2005 (TAS)
1 mention
Interpretation Act 1987 (NSW)
31 1 mention
Racial Discrimination Act 1975 (Cth)
1 mention

Medium Neutral Citation:	Burns v Sunol [2015] NSWCATAD 131
Hearing dates:	7 October 2014
Decision date:	25 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Wakefield, Senior Member J Schneeweiss, General Member M O’Halloran, General Member
Decision:	In this order, “the material” means: (a) Garry is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me. (b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on. (c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring. (d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims. (e) Everybody with common sense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt. (f) Gay marriage is child abuse. (2) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.
Catchwords:	ANTI-DISCRIMINATION - Homosexual vilification- Public Act- Incitement – Remedies – Restraining Order
Legislation Cited:	Anti-Discrimination Act 1977 NSW ss 49ZS, 49ZT, 88, 104, 108 Civil and Administrative Tribunal Act 2013 ss 3(d), 45
Cases Cited:	Burns v Corbett [2013] NSWADT 227 Burns v Dye [2002] NSWADT 32 Burns v Sunol [2012] NSWADT 246 Collier v Sunol [2005] NSWADT 261 Collier v Sunol [2008] NSWADT 339 Sunol v Collier (EOD) [2006] NSWADTAP 51 Sunol v Collier (No 2) [2012] NSWCA 44
Category:	Principal judgment
Parties:	Garry Burns (Applicant) John Christopher Sunol (Respondent)
Representation:	G Burns (Applicant in person) J C Sunol (Respondent in person)
File Number(s):	1410384