Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Burns v Sunol (No 2) [2018] NSWCATAD 120 Hearing dates: 21 February 2018 Date of orders: 04 June 2018 Decision date: 04 June 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member
J Newman, General MemberDecision: Pursuant to s 108(2)(a) of the Anti-Discrimination Act 1997 (NSW), Mr Sunol must pay Mr Burns the sum of $2,500 within 28 days.
Catchwords: HUMAN RIGHTS — remedies — compensation for loss or damage — assessment of damages Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Criminal Code Act 1995 (Cth)Cases Cited: Alexander v Home Office [1998] 1 WLR 968
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2017] NSWCATAD 215
Burns v Sunol (No 2) [2017] NSWCATAD 236
Burns v Sunol [2018] NSWCATAD 10
Carter v Brown [2010] NSWADT 109
Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Hall v Sheiban (1985) ALR 503
Henville v Walker (2001) 206 CLR 459; [2001] HCA 52
Margan v Taufaao [2017] NSWCATAD 216
Margan v Manias [2014] NSWCATAP 16
Smith v Department of Education and Communities [2013] NSWADT 162Texts Cited: N Rees, S Rice and D Allen, Australian Anti-Discrimination Law (Federation Press, 3rd ed, 2018) Category: Principal judgment Parties: Garry Burns (Applicant)
John Sunol (Respondent)Representation: In Person (Applicant)
In Person (Respondent)
File Number(s): 2017/00100865 Publication restriction: Non-Publiction order applies in respect of psychological report referred to at [12] of these reasons.
REASONS FOR DECISION
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In a decision made in January 2018, we found substantiated part of a complaint made by Garry Burns to the President of the Anti-Discrimination Board, alleging unlawful homosexual vilification and victimisation: Burns v Sunol [2018] NSWCATAD 10. We concluded that the statement made by John Sunol, the respondent in these proceedings, “I ain’t paying a child molesting faggot $50,000 …” (the offending Statement) had the capacity to incite hatred towards and serious contempt for Mr Burns on the ground of homosexuality. Contained in a five minute video entitled “Message to Gary Richard Burns over my $55,000 Debt” (the Video), the offending Statement was made by Mr Sunol and posted on a website he operated and controlled. In addition, we found that by posting the Video on his website Mr Sunol had victimised Mr Burns. The Anti-Discrimination Act 1977 (NSW) makes homosexual vilification and victimisation unlawful: ss 49ZT and 50.
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These reasons address a claim made by Mr Burns for compensation. In Points of Claim filed in 19 April 2017, Mr Burns claimed compensation for “suffering and hurt” in the sum of $100,000. He later reduced the claimed amount to $5,000. (See Points of Claim filed on 16 January 2018).
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Mr Sunol urges the Tribunal not to award compensation to Mr Burns. He argues that Mr Burns’ claim of suffering hurt feelings after viewing the Video, is disingenuous. In addition,…
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- AGLC
- Burns v Sunol (No 2) [2018] NSWCATAD 120
- Case
- [2018] NSWCATAD 120
- Decision Date
CaseChat Overview and Summary
The central legal issue was the appropriate assessment of damages for the alleged breach of the Anti-Discrimination Act. The Tribunal was required to determine the extent of the damage suffered by Mr Burns and the appropriate amount of compensation to be awarded. Additionally, the Tribunal needed to consider whether the compensation should be adjusted based on the Human Rights (Anti-Discrimination) Act 1998 (NSW).
The Tribunal determined that Mr Sunol had breached the Anti-Discrimination Act by engaging in discriminatory conduct. The Tribunal assessed the extent of the damage caused to Mr Burns and found that the appropriate compensation was $2,500. The Tribunal took into account relevant factors, including the nature and impact of the discriminatory conduct, and the need to provide an effective remedy to Mr Burns. The Tribunal also considered the provisions of the Human Rights (Anti-Discrimination) Act, which permits the adjustment of compensation to ensure that it reflects the seriousness of the breach and the need for deterrence.
The Tribunal ordered Mr Sunol to pay Mr Burns the sum of $2,500 within 28 days, in accordance with section 108(2)(a) of the Anti-Discrimination Act. The Tribunal emphasised the importance of providing an effective remedy to victims of discrimination and the need to uphold the principles of the Anti-Discrimination Act.
Orders
Orders of the court
Pursuant to s 108(2)(a) of the Anti-Discrimination Act 1997 (NSW), Mr Sunol must pay Mr Burns the sum of $2,500 within 28 days.
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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