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Burns v Sunol (No 2)

Burns v Sunol (No 2)

Case [2018] NSWCATAD 120 4 June 2018

Remedies

Compensatory Damages

Human Rights Law

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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 Member
Decision:
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 162
Texts 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

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.
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).
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,…

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 (No 2)

Details

AGLC: Burns v Sunol (No 2) [2018] NSWCATAD 120
Case: [2018] NSWCATAD 120
Decision Date: 04 June 2018

CaseChat Overview and Summary

The matter before the court was a dispute between Mr Burns and Mr Sunol, concerning an alleged breach of the Anti-Discrimination Act 1997 (NSW). Mr Burns sought compensation for loss or damage caused by Mr Sunol’s discriminatory conduct. The case was heard in the Anti-Discrimination NSW Tribunal.

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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Citations

AGLC Citation

Burns v Sunol (No 2) [2018] NSWCATAD 120

Most Recent Citation

Burns v Smith [2019] NSWCATAD 56

Cases citing this decision · 4 of 4 shown

Sun v Nationwide News Pty Limited
[2021] NSWCATAD 147 Para 19

…Principal Member Britton and General Member Newman in Burns v Sunol (2018) NSWCATOD 10 set out a useful discussion of the relevant principles to be applied when considering applications concerning vilification. We adopt their reasoning which is set out below:…
Comensoli v Passas
[2019] NSWCATAD 155

…ws (No 2) [2007] NSWADT 47 Burns v Smith [2019] NSWCATAD 56 Burns v Sunol [2012] NSWADT 246 Burns v Sunol [2018] NSWCATAD 10 Burns v Sunol (No 2) [2018] NSWCATAD 120 Carter v Brown [2010] NSWADT 109 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207 Jones v Trad [2013] NSWCA 389…
Ekermawi v Commissioner of Police, NSW Police Force
[2019] NSWCATAD 79 Para 67

…98]; Nicholls and Nicholls v Director General, Dept of Education and Training [No 2] [2009] NSWADTAP 20 at [28]; Burns v Sunol (No 2) [2018] NSWCATAD 120 at [52] – [53]; Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102; Burns v Dye [2002] NSWADT32).…
Burns v Smith
[2019] NSWCATAD 56 Para 43

…A 389 at [98]; Nicholls and Nicholls v Director General, Dept of Education and Training [No 2] [2009] NSWADTAP 20 at [28]; and Burns v Sunol (No 2) [2018] NSWCATAD 120 at [52] – [53]; Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102; Burns v Dye [20…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

Burns v Sunol
[2018] NSWCATAD 10 Para 1

…int 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 of…
Burns v Sunol (No 2)
[2017] NSWCATAD 236 Para 13

…ns has claimed to experience emotions of this kind as a result of similar statements published by Mr Sunol. See for example, Burns v Sunol (No 2) [2017] NSWCATAD 236 at [83].…
Burns v Sunol
[2017] NSWCATAD 215 Para 7

…e. This approach has consistently been followed by the ADT and NCAT. See for example, Margan v Manias [2014] NSWCATAP 16 at [39]; Burns v Sunol [2017] NSWCATAD 215 at [70]; Smith v Department of Education and Communities [2013] NSWADT 162; Carter v Brown [2010] NSWADT 109.…
Margan v Taufaao
[2017] NSWCATAD 216 Para 16

…Mr Burns contends that an award of $5,000 is fair and reasonable, citing in support the decision of Margan v Taufaao [2017] NSWCATAD 216. In that matter the Tribunal (differently constituted) found that an assault by Mr Taufaao on Mr Margan in a nightclub, accompanied by the statements “fuck off faggott” and “I’m goin…
Smith v Department of Education and Communities
[2013] NSWADT 162 Para 7

…example, Margan v Manias [2014] NSWCATAP 16 at [39]; Burns v Sunol [2017] NSWCATAD 215 at [70]; Smith v Department of Education and Communities [2013] NSWADT 162; Carter v Brown [2010] NSWADT 109.…
Burns v Sunol
[2012] NSWADT 246 Para 20

…This issue was considered in Burns v Sunol [2012] NSWADT 246. The Tribunal (differently constituted) noted at [112] that the general principles governing compensation in tort and contract cases provide that a party entitled to compensation has a duty to take reasonable steps to mitigate the damage or loss caused by…
Carter v Brown
[2010] NSWADT 109 Para 7

…WCATAP 16 at [39]; Burns v Sunol [2017] NSWCATAD 215 at [70]; Smith v Department of Education and Communities [2013] NSWADT 162; Carter v Brown [2010] NSWADT 109.…
Commissioner of Police, NSW Police v Mooney (No 3)
[2004] NSWADTAP 22 Para 6

…In Commissioner of Police, NSW Police v Mooney (No 3) (EOD)[2004] NSWADTAP 22 ( Mooney ) at [23]-[35], an Appeal Panel of one of NCAT’s predecessors, the Administrative Decisions Tribunal (the ADT ), examined the meaning of the phrase “loss or damage suffered by reason of the respondent’s conduct” in the then s 113 o…
Henville v Walker
[2001] HCA 52

…r 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] N…
Davern v Messel
[1984] HCA 34 Para 39

…ng placed in “double jeopardy” - that is, being convicted of the same crime in respect of the same conduct on more than occasion: Davern v Messel [1984] HCA 34; (1984) 155 CLR 21.…
[2014] NSWCATAP 16
[2014] NSWCATAP 16 Para 7

…contributed” to the claimed loss or damage. This approach has consistently been followed by the ADT and NCAT. See for example, Margan v Manias [2014] NSWCATAP 16 at [39]; Burns v Sunol [2017] NSWCATAD 215 at [70]; Smith v Department of Education and Communities [2013] NSWADT 162; Carter v Brown [2010] NSWADT 109.…
[1998] 1 WLR 968
[1998] 1 WLR 968 Para 23

…s, and humiliation “are not susceptible to mathematical calculation”, this is not a basis to ignore these items. In Alexander v Home Office [1998] 1 WLR 968 at 975, the English Court of Appeal cautioned against awarding minimal damages in discrimination cases, reasoning that “this would tend to trivialise or dimini…

Legislation cited in this decision · 4

Anti- Discrimination Act 1997 (NSW)
1 mention
Anti-Discrimination Act 1977 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Criminal Code Act 1995 (Cth)
1 mention (from Para 30)

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 Member
Decision:	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 162
Texts 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.