Burns v Sunol (No 2)

[2017] NSWCATAD 236

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Burns v Sunol (No 2) [2017] NSWCATAD 236

Hearing dates:

19 April 2017

Date of orders:

31 July 2017

Decision date:

31 July 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Principal Member
J Newman, General Member

Decision:

1. The second vilification complaint is substantiated in part. The balance of the complaint is dismissed.
2. The first vilification complaint is dismissed.
3. The complaint of victimisation is dismissed

Catchwords:

HUMAN RIGHTS — homosexual vilification — meaning of “public act” — whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual persons

 

HUMAN RIGHTS — victimisation — whether person was subjected to “a detriment”

 

EVIDENCE —matters of common knowledge to which the Tribunal can have regard

DAMAGES — assessment of damages under the Anti-Discrimination Act 1977

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

Burns v Corbett; Gaynor v Burns [2017] NSWCA 3
Burns v Dye [2002] NSWADT 32
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2017] NSWCATAD 215
Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]
Margan v Manias [2014] NSWCATAP 16
Margan v Manias [2015] NSWCA 388
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier and anor. (No 2) [2012] NSWCA 44

Category:

Principal judgment

Parties:

Garry Burns (Applicant)
John Sunol (Respondent)

Representation:

G Burns (Applicant in person)
J Sunol (Respondent in person)

File Number(s):

2016/003785592016/003785582016/00378560

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal prohibits the publication and broadcast of the report referred to at [86] of these reasons (Exhibit A2), whether in public or private, and the disclosure of any matters contained in that report.

REASONS FOR DECISION

1. These reasons address three complaints lodged by Garry Burns with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”).

2. In two of the three complaints, Mr Burns alleges that John Sunol communicated material via the internet which vilified homosexual people and/or him. 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, or is thought to be, homosexual: s 49ZT.

3. In the third complaint, Mr Burns alleges that Mr Sunol victimised him by publishing material which alleges Mr Burns has engaged in criminal conduct and, by the operation of s 50 of the Act, is unlawful.

4. There is a long history between the parties. Since 2011 Mr Burns had made numerous complaints to the President about Mr Sunol. Most allege unlawful homosexual vilification. Some have been found to be substantiated by the NSW Civil and Administrative Tribunal (NCAT) and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT). Currently, proceedings are on foot between the parties in other jurisdictions. In these proceedings both parties made submissions about this history. Except to the extent that those submissions are relevant to the issues we are required to determine in these proceedings, we have not addressed them in these reasons.

The vilification complaints

5. On 15 and 16 September 2016, the President received complaints made by Mr Burns against Mr Sunol, alleging unlawful homosexual vilification. Each complaint relates to content posted on a website said by Mr Burns to be operated and controlled by Mr Sunol (the subject website).

6. The complaint received by the President on 15 September 2016 (the first vilification complaint) relates to a comment posted on the subject website allegedly by a third party, Luke McKee.

7. The complaint received by the President on 16 September 2016 (the second vilification complaint) relates to an article posted on the subject website headed “‘Gay Dads’ keep on raping” and ‘Marriage Equality’ is a platform to give them more boys to rape!”.

8. Mr Burns claims that the material which is the subject of each vilification complaint incited hatred towards and serious contempt for him. In addition, he contends that the second vilification complaint incited hatred towards, and serious contempt for, homosexuals as a group.

Statutory framework

9. Section 49ZT makes it unlawful for a person to engage in a “public act” which amounts to homosexual vilification:

49ZT 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.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(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.

10. A “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

...

11. Section 49Z states:

A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

Issues for determination

12. The following issues must be determined in relation to each vilification complaint:

1. Whether Mr Burns has standing to bring the complaint;

2. Whether the communication of the material the subject of the complaint was the “public act” of Mr Sunol;

3. If so, whether the communication of that material had the capacity to incite hatred towards, or serious contempt for, Mr Burns;

4. If so, whether one or more of those emotions was incited on the ground that Mr Burns is, or is thought to be, homosexual;

5. If so, whether an order should be made that Mr Sunol pay compensation to Mr Burns for claimed “loss or damage”.

13. In addition, with respect to the second vilification complaint, we must decide whether the communication of the offending material had the capacity to incite hatred towards, or serious contempt for, homosexuals as a group, and if so, whether either or both of those emotions was incited on “the ground of” the homosexuality of the members of the group.

14. Mr Burns bears the burden of proving, on the balance of probabilities, each of the above matters.

Does Mr Burns have standing to bring the Complaint?

15. It is unclear whether in these proceedings Mr Sunol contends that Mr Burns is not a homosexual person and therefore, by the operation of s 88 of the Act, cannot bring the vilification complaints. The reason for the uncertainty is that while Mr Sunol did not raise the issue at hearing, in submissions filed on 17 April 2017 he wrote that he relied on submissions filed in Burns v Sunol [2017] NSWCATAD 215 (Burns 2017). In those submissions, Mr Sunol contended that Mr Burns was not a homosexual person and therefore lacked standing to bring a complaint of unlawful homosexual vilification.

16. Given that our power to determine the unlawful vilification complaints requires us to be satisfied that the Act permits Mr Burns to bring those complaints, we will address the issue.

17. Section 88 of the Act states:

88 Vilification complaints

A vilification complaint cannot be made unless each person on whose behalf the complaint is made:

(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or

(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.

18. Mr Burns testified that he is a homosexual person. At the hearing, Mr Sunol neither challenged nor provided any evidence to contradict that claim.

19. Without some evidence to the contrary, there is not sufficient reason to doubt Mr Burns’ claim to be homosexual. Therefore, s 88 of the Act does not operate to prevent Mr Burns from bringing the vilification complaints.

Was the publication of the material a public act of Mr Sunol?

20. A key issue in dispute between the parties is whether the communication of the material which is the subject of each vilification complaint, is a “public act” of Mr Sunol for the purposes of s 49ZTA of the Act. Mr Burns claims that Mr Sunol is responsible for the publication of the material which is the subject of each complaint. Mr Sunol disagrees and claims Mr McKee bears exclusive responsibility for the publication.

The first vilification complaint

21. It is agreed that the comment which is the subject of the first vilification complaint was a comment written and posted on the subject website by Luke McKee.

22. The comment (the offending comment) is one of 25 comments posted or uploaded in response to an article posted on the subject website on 5 March 2016 entitled “Luke McKee’s first report on sexualisation of children witnessed at the Sydney Mardi Gras that satanic OTO member bisexual Kinsey …”. An “add a comment” option appeared at the end of that article which, if pressed, enables a person to post a comment. The available evidence indicates that a password was not needed to post a comment.

23. Mr Burns argues that the communication of the offending comment was the public act of Mr Sunol because he had control over the subject website and gave permission to Mr McKee to post the comment. Mr Sunol disagrees. He submits that as he neither wrote nor posted the comment it was not his public act. He argues that while in the past he may have acquiesced to Mr McKee accessing the subject website, as Mr McKee posted the comment directly on the website, Mr McKee had “equal control over the blog”. Furthermore, he wrote, “at the time of writing [17 April 2017] Luke McKee now controls this blog and I have abandoned it”. In oral evidence, he claimed that he had started a “new blog” about four to six weeks ago. Mr Sunol also claimed that, given the large amount of material on his website, he can neither monitor nor control the content that is posted.

24. In oral evidence, Mr Sunol claimed that he took steps to remove the offending material about three weeks after it was posted. Mr Burns, pointing to the document he attached to the initiating complaint, which he claimed was downloaded and copied from the subject website on 13 September 2016, submits that this claim cannot be accepted.. It contains a copy of the offending comment and next to the name of the author the words, “via google +6 months ago…”

Consideration

25. We are satisfied that Mr Sunol became aware of the offending comment shortly after it was posted in March 2016. His claim that he took steps to remove it within three weeks is unsupported and inconsistent with the document attached to the initiating complaint. It reveals that it remained on the website for at least six months after it was posted.

26. Even if it is accepted, as claimed by Mr Sunol, that he had abandoned the subject website by the time of the hearing (April 2017), there is no evidence to suggest that he had abandoned the website when the complaint was made. We find that when the complaint was made Mr Sunol operated and controlled and, relevantly, had the capacity to remove content from the subject website. Nonetheless, we accept as was argued by Mr Sunol, that he could not control the initial act of the posting.

27. In other proceedings involving the parties, we found that material written by and posted on the subject website by Mr McKee, in circumstances where Mr Sunol had actual knowledge of the post and took no steps to remove it, was a “public act” for the purpose of s 49ZTA of the Act of both Messrs Sunol and McKee: Burns 2017 at [38] – [42]. While the facts in this matter are different insofar as here the offending material was posted by activating the “comment option” on the website, nonetheless the key facts are the same. Mr Sunol had actual knowledge that the offending comment had been posted on a website he operated and controlled and took no steps to remove it within a reasonable period.

28. Applying that analysis we find that the communication to the public of the offending comment was a “public act” of Mr Sunol.

Did the offending comment have the capacity to incite hatred towards or serious contempt of Mr Burns on the ground of homosexuality?

29. Mr Burns must establish that at least one of the “real”, “genuine” or “true” reasons for the offending passage having the capacity to incite hatred towards or serious contempt of him was on the ground of his homosexuality: Jones v Trad [2013] NSWCA 389 at [98].

30. The offending comment reads :

This shows you what Gary Boylover Burns is up to and it’s not everything but enough to get you started on who he is normalizing pedophilia. Search “Sparkles the pony” to see why he IS a paedophile.

(spelling uncorrected)

31. The offending comment, in particular the statement that Mr Burns is “a paedophile”, undoubtedly had the capacity to incite hatred towards, contempt of Mr Burns. It implies that Mr Burns engaged in or approves of child sexual abuse. There are few stronger taboos in our society and such behaviour is both condemned on moral grounds and is criminalised by our penal laws. However, for the reasons that follow, we are not satisfied that the offending comment had the capacity to incite either hatred towards, or contempt for Mr Burns on the ground of Mr Burns’ sexuality.

32. The 25 comments posted on the subject website, following the article posted by McKee, involved a colourful and sometimes abusive exchange between Mr McKee and “Jacob” about a wide range of topics. These include the purported link between homosexuality and paedophilia.

33. Mr Burns did not explain in either the initiating complaint or Points of Claim filed in these proceedings, the basis for his contention that the offending comment has the capacity to incite one or both of the relevant emotions on the ground of his sexuality. He concedes that the offending comment does not expressly draw a connection between the allegation that he is a paedophile — an allegation he vehemently denies — and his sexuality. Nor does he argue that the reader would understand the term “boy lover” to mean a homosexual male who is a paedophile. He argues that the writer seeks to draw a link the link between his sexuality and the paedophilia allegation by the reference to “Sparkles the Pony”. He claims that the statement “Search ‘Sparkles the Pony’ to see why [Mr Burns] IS a pedophile” constitutes an invitation to the reader to make inquiries about Sparkles the Pony, which if made, are likely to result in a connection being drawn between his sexuality and the paedophilia allegation.

34. This argument cannot be accepted. First, the question for determination is whether the communication of the offending comment has the capacity to incite one or more of the relevant emotions on the claimed ground, not whether when read together with other unspecified information the communication of the offending comment had that capacity.

35. Second, the available evidence does not support a finding that the ordinary reader would have understood “Sparkles the Pony” to be a reference to homosexuals who are paedophiles. Relying on an extract purportedly downloaded from the “Sparkles the Pony” Facebook, Mr Sunol contends that “Sparkles the Pony” is “a network of homosexual men” who are paedophiles. Mr Burns agrees “Sparkles the Pony” is a reference to a network of paedophiles, but not homosexual paedophiles.

36. But more to the point, the issue is not what the parties understand to be the meaning conveyed but what the ordinary reader of the subject website is likely to have understood by the reference to “Sparkles the Pony”. Mr Burns has produced no evidence which might assist us to determine this question. There is no support for the contention that it is a matter of common knowledge, to which we may have regard, that Sparkles the Pony is a reference to a paedophile ring, or a paedophile ring whose members are homosexual. (See s144 of the Evidence Act 1995 (NSW))

37. By inviting the reader to search the term “Sparkles the Pony”, Mr McKee may have been seeking to persuade the reader that Mr Burns is a paedophile because he is a homosexual. Mr McKee makes no secret of his belief that male homosexuals have a predisposition to paedophilia. However, the issue we must determine is not what Mr McKee meant by the reference to “Sparkles the Pony”, but what meaning was likely to have been conveyed to the ordinary reader.

38. On the available material we are not satisfied that Mr Burns’ sexuality was at least one of the real reasons for the offending passage having the capacity to incite hatred towards, contempt of Mr Burns.

39. Accordingly, the first vilification complaint must be dismissed.

The second vilification complaint

40. The following article (the offending article) appeared on the Sunol website on 14 September 2016:

“Gay Dads” keep on raping, and “marriage Equality: is a platform to give them more boys to rape!”

(The hand written comments were made by Mr Burns in the document attached to the initiating complaint lodged with the Board.)

Was the communication of the offending article a public act of Mr Sunol?

41. The parties agree that the offending article was written by Mr McKee. However, they differ about whether the act of communicating it to the public was a public act of Mr Sunol. In support of their respective submissions, the parties advance broadly the same arguments made in the first vilification complaint.

42. Mr Burns argues that the evidence supports a finding that Mr Sunol gave Mr McKee permission to post the article on the subject website, pointing to an entry posted on the subject website by Mr Sunol on 29 August 2016:

I have given permission for a Luke McKee to write to this blog as co-author with myself … This man writes some very good material that will give an extra flavour to my blog.

43. In addition, Mr Burns claims that the offending article had not been removed by April 2017. In support, he pointed to a copy of the article he claims he downloaded and copied from the Sunol website on 14 April 2017 (Exhibit A 1). The document bears the address of the website and the date 14 April 2017. We accept Mr Burns’ claim.

44. Mr Sunol gave conflicting evidence about whether he gave his password to Mr McKee. In oral evidence, he initially admitted that he gave Mr McKee his password but later claimed he changed his password to prevent Mr McKee accessing the website but could not remember when he took this step. In addition, Mr Sunol claimed he emailed Mr McKee asking him not to post articles on his website about 12 to 18 months ago. He was unable to produce a copy of those emails.

45. The available evidence indicates that at the time the second vilification complaint was made a password was needed to post articles on the subject website. It is not in issue that Mr Sunol had the password to the website. We find it more probable than not that Mr Sunol gave Mr McKee the password which Mr McKee in turn used to access the site and post the offending article. Mr Sunol’s claim of having changed the password to prevent Mr McKee accessing the subject website is unsupported and inconsistent with the entry posted by Mr Sunol two weeks before the offending article was posted. Mr Sunol’s claim of taking steps to remove the offending article three weeks after discovering it is irreconcilable with the evidence that on 14 April 2017 the offending material remained on the site, six months after the President had notified Mr Sunol about Mr Burns’ complaint about the offending article on 17 October 2016..

43. For the reasons discussed in relation to the first vilification complaint, the available evidence does not support a finding that Mr Sunol had abandoned the website at the time the complaint was made. We find at that time it remained under Mr Sunol’s control.

44. By writing and posting the offending article on the subject website, the communication to the public of the offending article was a public act of Mr McKee. However, there is no warrant for interpreting s 49ZT(1) of the Act to mean that the relevant “public act” can only be the act of one person. In circumstances where Mr Sunol had control of the subject website, had given the password to the subject website to Mr McKee, had actual knowledge of the posting of the offending article and had taken no steps to remove it, its communication to the public was also Mr Sunol’s public act.

45. We find the communication to the public of the offending article was a public act of Mr Sunol for the purposes of s 49ZT of the Act.

Did the offending passage have the capacity to incite?

49. Mr Burns submits that the offending article had the capacity to incite hatred towards, and serious contempt for, him and homosexuals as a group. He argues that the meaning conveyed by the offending article is that he and “fellow homosexuals” molest children. Mr Sunol argues that, given the type of people who read the subject website, whom he claims are academics and the like, they would not be incited by the offending article.

The relevant principles

50. The element of incitement in the unlawful vilification provisions of the Act has been the subject of extensive consideration by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following statement of principles may be distilled from those authorities:

1. 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]);

2. The word “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]; Margan at [11]);

3. For a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or there was an intention to incite (Sunol at [41]; Margan at [12]);

4. 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]);

5. 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]);

6. 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]).

51. NCAT and the ADT have consistently held that the words “hatred” and “serious contempt” in the vilification provisions of the Act are to be given their ordinary meanings and have applied the following definitions:

‘hatred’ means ‘intense dislike; detestation’ (Macquarie), ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford).

‘serious’ means ‘important, grave’ (Oxford); ‘weighty, important’ (Macquarie).

‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’ (Oxford); ‘the feeling with which one regards anything considered mean, vile, or worthless’ (Macquarie).

See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]; Burns v Sunol [2012] NSWADT 246 at [112].

Identification of the relevant audience

52. In Burns 2017 at [53] – [55] we considered the issue of the identification of the audience or likely audience. As was the case in that matter, on the available evidence the only people known to have read the offending article are Messrs Burns, McKee and Sunol.

53. In these proceedings, Messrs Burns and Sunol repeated their respective submissions about the composition of the relevant audience made in Burns 2017. In addition, in these proceedings Mr Sunol emphasised that, in his opinion, academics and “people who are unlikely to be incited to violence” were well-represented among the readers of the subject website.

54. We see no reason to depart from the finding made in Burns 2017 at [55] that the people who visited Mr Sunol’s website were not an homogenous group but probably held a diversity of views about homosexuality, both favourable and unfavourable.

Ordinary or ordinary reasonable member of the audience

55. For the reasons given in Burns 2017 at [56] – [59], we adopt the approach taken by Bathurst CJ in Sunol at [34] and will evaluate the capacity of the offending article to incite by reference to their effect on the notional “ordinary member” of the relevant group to whom the act is directed, namely visitors to Mr Sunol’s website.

Consideration

56. In Points of Claim filed on 15 February 2017, Mr Burns wrote that each paragraph of the article has the capacity to incite each of the relevant emotions. We also understand him to contend that, read as a whole; the article has the capacity to incite each of the relevant emotions.

57. In evaluating whether all or part of the offending article has the capacity to incite, as a first step we must ask what was the meaning or impression conveyed to the ordinary reader by the article as a whole and the parts complained about by Mr Burns.

58. The article is littered with references to the long history between the parties and the complaints made to the President by Mr Burns about Mr Sunol. In our view, much of the offending article is incomprehensible without some knowledge of that history.

59. The opening sentence of the final paragraph provides but one example. It reads “You must not disrespect those who have sex with underage boys and fly on Air Force One with Obama ….”. Without some knowledge of the NCAT decision, referred to in that paragraph, the meaning of the paragraph is unclear.

60. Therefore, in deciding what the ordinary reader is likely to have understood as the meaning conveyed by the article and, in turn, whether it (or part of it) had the capacity to incite either of the relevant emotions, we must consider whether the ordinary reader is likely to have possessed any knowledge of the history between the parties as referred to in the offending article.

61. The available evidence does not support a finding that the history between the parties and the complaints made by Mr Burns to the President about Mr Sunol are matters of common knowledge. Nor does it support a finding that the readers of the website were likely to have knowledge of that history. Accordingly, in determining what was the likely meaning conveyed we have assumed that the ordinary reader possessed no knowledge of that history.

62. Nonetheless, we acknowledge that the element of incitement does not require Mr Burns to establish that the meaning conveyed by the offending article was clear. A poorly written article that is largely incomprehensible may have the capacity to incite. Whether it is likely to have that capacity will depend on multiple factors including the article itself, the context in which it was communicated to the public and the characteristics of the group to whom it was directed. The exercise of determining whether the offending article is likely to have the capacity to incite does not lend itself to empirical assessment and involves an impressionistic assessment of the probability of the communication having that capacity. Mr Burns does not need to prove that the ordinary reader is likely to have understood the meaning that Mr McKee intended to convey or that the article had a rational meaning or one open to only one interpretation. Rather, it is enough that the impression gained from reading the material is likely to have the capacity to incite either of the relevant emotions in the ordinary reader.

63. Applying that analysis, we are unable to accept the proposition that the first and final paragraphs of the offending article had the capacity. The meaning conveyed to the ordinary reader who did not possess any knowledge of the history between the parties is at best obtuse. The meaning conveyed by each paragraph is unclear. Each conflates a number of “themes”. Each makes liberal references to the history between the parties. While the impression gleaned by the ordinary reader is likely to have been that NCAT has made a series of decisions involving homosexual vilification of which the writer strongly disapproves, in our opinion, it is not obvious that either paragraph had the necessary characteristic of encouraging or urging a particular emotion towards homosexual men in general or Mr Burns in particular. While those paragraphs are undoubtedly unpleasant and insulting, their venomous intent is directed towards staff of the Anti-Discrimination Board and this Tribunal. The complaint fails in that respect.

64. However, we have reached a different conclusion about the major heading and the second paragraph of the article.

65. The heading reads “Gay Dads” keep on raping, and “marriage Equality: is a platform to give them more boys to rape!’. The clear meaning conveyed is that the campaign for marriage equality is a ruse to give “gay dads more boys to rape”. The subject of the heading is “gay dads”. In our view, the words used, together with the intemperate tone of the heading, have the capacity to incite hatred of and contempt towards “gay dads” in the ordinary member of the group. In addition, we find at least one of the real reasons for the offending passage having the capacity to incite hatred towards, contempt of “gay dads” is their sexuality.

66. The second paragraph reads:

Notice the decision above says it’s a crime to link to that goes to this video not about gays, but about pedophiles! But Garry Burns says they are fellow homosexuals just like him (who rape boys?) who must not be vilified

67. While the ordinary reader is unlikely to have understood what was meant by the reference to “the decision above”, consistent with the plain meaning of the paragraph, we find they are likely to have understood that Mr Burns is a homosexual who rapes children. It is a matter of common knowledge that paedophiles are held in low regard within most sections of the Australian society. Given the moral outrage that attaches to the paedophile label, in our view the paragraph is capable of inciting hatred toward and serious contempt for Mr Burns in the ordinary reader. In addition, in our view the paragraph had the capacity to incite those emotions not just because of the allegation that Mr Burns is a paedophile but also because of his sexuality. In reaching that conclusion, we note the reference to Mr Burns’ sexuality and the implicit assumption conveyed by the second paragraph that Mr Burns and fellow homosexuals rape children.

68. With respect to the article read as a whole, while it is possible that it had the capacity to incite the relevant reactions, we are not satisfied that the evidence before us is sufficient to establish this on the balance of probabilities.

Summary

69. We find that the major heading of the offending article had the capacity to incite hatred towards and serious contempt for male homosexual parents on the ground of their sexuality of their group. In addition, we find that the second paragraph had capacity to incite each of those emotions towards both homosexual men and Mr Burns on the ground of their/his sexuality.

70. The second vilification complaint is substantiated in part.

The victimisation complaint

71. In a complaint lodged with the President on 26 September 2016, Mr Burns alleged that on or about 22 September 2016 Mr Sunol published statements on the subject website which “imputed criminal conduct on my behalf”.

72. The content about Mr Burns was posted by Mr Sunol on his website on 22 September 2012 (the offending post) and is reproduced below. The highlighting and handwritten comments were made by Mr Burns in the document attached to the initiating complaint lodged with the President:

Statutory framework

73. Section 50 of the Act relevantly states:

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,

(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.

74. Mr Burns bears the onus of establishing on the balance of probabilities that:

1. Mr Sunol caused him to undergo or experience something;

2. He suffered some consequential detriment; and

3. That detriment occurred on the ground that he had brought proceedings against Mr Sunol under the Act: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

Was Mr Burns subjected to a detriment?

75. The word “detriment” in the context of s 50(1) of the Act means “loss, damage or injury” that is “real and not trivial”: Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146. Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service at [41].

76. In Points of Claim filed on 15 February 2015, Mr Burns claims that the publication, specifically the following statements, alleges he has been involved in criminal activity:

1. Gary [is] a fraud who won the cases by telling lies.

2. I was set up and framed by this theif (sic).

3. I will not pay and will not even consider negotiating with this man who is a plain straight out fraud.

77. Mr Sunol states that he, not Mr Burns, is the victim. He states that he has been publicly vilified and demonised by Mr Burns on his Facebook page.

Was Mr Burns subjected to a detriment by the publication of the offending post?

78. It is not in dispute that Mr Sunol caused the offending material to be published on his website. However, Mr Burns failed to identify how, as a result, he was subjected to a detriment. He did not claim that the publication caused him to feel embarrassed or distressed. He did not claim that the publication caused damage to his reputation. Nor did he provide evidence which would enable us to determine how it is perceived by others. Without some evidence that he was adversely affected by the publication or subjected to a detriment, the complaint must fail.

79. In our view, not only is there no evidence of detriment to, and therefore victimisation of, Mr Burns but the ordinary reasonable reader of such material is likely to infer merely that Mr Sunol is a very disappointed litigant. Mr Sunol’s complaints imply that his evidence has not been accepted by an independent tribunal, and that Mr Burns, in the case in question, was vindicated by the findings of the tribunal. Although Mr Sunol’s expressions are insulting, in the eyes of a reasonable person bringing an objective perspective, they are more likely to be detrimental to himself than to Mr Burns or anyone else.

Should an order for compensation be made?

80. Mr Burns seeks an order for compensation for non-economic loss in the amount of $33,000.

81. Section 108(1)(a) of the Act states:

108 Order or other decision of Tribunal

…

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95(2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

82. In Margan v Manias [2014] NSWCATAP 16, an Appeal Panel of NCAT stated at [39] that damages under s 108(2)(a) of the Act are to be assessed on the basis that they are awarded to compensate the person for loss or damage suffered as a result of the unlawful act. The Appeal Panel noted that while the equivalent principles within tort and contract law provide a guide, they are not “controlling”, citing in support of that proposition: Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [23]- [27], [48]). (See Burns v Sunol [2012] NSWADT 246 at [111] – [133] for a detailed consideration of the issues involved in the assessment of damages under the Act).

83. In these proceedings, Mr Burns claimed that the publication, over a long period, by Mr Sunol of material that vilifies him and homosexuals as a class has caused him great trauma and distress. He claims that he suffers post-traumatic stress disorder (PTSD), which is reactivated each time he reads content which vilifies him on the ground of his sexuality. He claims that he finds the publication of allegations that he is a paedophile to be traumatising, especially because of the death of a family member who had been abused as a child.

84. In support of his claim that he suffers from PTSD which is reactivated on reading vilifying material, Mr Burns relies upon a report prepared by a psychologist in late 2013 (Exhibit A2). At Mr Burns’ request we made a non-disclosure order in relation to that report. To avoid disclosing the details of the report, in these reasons we will refer to it in general terms. At the time of preparing the report, the author had been treating Mr Burns for 12 months. He wrote that in his opinion Mr Burns suffers from PTSD caused by a violent “gay hate crime” of which he was the victim in the late 1980s. He went on to write that the “ongoing homophobic harassment” Mr Sunol had subjected Mr Burns to over the past two years (2011 to 2013) caused Mr Burns to be “traumatised and re-traumatised”.

85. In addition, in support of his claim for non-economic loss, Mr Burns relies on two letters written in 2005 by the then NSW Deputy State Coroner, Jacqueline Milledge, in which Her Honour thanked Mr Burns for giving evidence in an inquest about his own “horrific experience” as a victim of crime. It can be inferred from the letter that the subject inquest related to the death of a homosexual male.

86. Mr Burns stated that he is seeking compensation because he wants the “harassment to stop”. He stated that the non-monetary orders made by NCAT and the ADT — apologies, restraining order and damages — have not stopped the conduct. (In 2015, a differently constituted 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.)

87. Mr Sunol opposes the claim for damages. He claims that he has filed for bankruptcy and has no capacity to pay. He points out that, as a result of decisions made by NCAT and the ADT following determination of complaints of unlawful homosexual vilification, he has been ordered to pay Mr Burns an aggregate amount of about $50,000. He claims Mr Burns has subjected him to a campaign of harassment by repeatedly making unsubstantiated complaints and he should be compensated for ongoing harassment, not Mr Burns.

88. In addition, Mr Sunol argues that if Mr Burns’ claim of being traumatised by the material published on the subject website was genuine, he would stop “trolling his blog” and using “Google alert” to notify him when any mention is made of his name.

Consideration

89. The report of the psychologist relied upon by Mr Burns in support of his claim of suffering from PTSD corroborates his claim of having been diagnosed with PTSD. Prepared over four years ago, of itself the report does not support a finding that the publication of the material we have found to constitute unlawful homosexual vilification “reactivated” the condition. Nonetheless, it is corroborative of Mr Burns’ self-report that the publication of this type of material causes him distress.

90. A difficulty in assessing Mr Burns’ claimed loss and damage is that it is apparent from his submissions that he is not only upset and traumatised by the publication of material which we found to constitute unlawful homosexual vilification in the second vilification complaint, but also other material published by Mr Sunol which, while demeaning of him and/or the homosexual community, is not the subject the complaint currently before us. In these circumstances, identifying the loss or damage “suffered by reason of” Mr Sunol’s conduct found to constitute unlawful homosexual vilification in the second vilification complaint is not an easy task.

91. A further consideration which arises in this matter is whether Mr Burns has taken reasonable steps to mitigate his loss. While there is no hard-and-fast rule that a duty to mitigate applies in assessing damages under the Act, in our view it is appropriate to apply those principles in this case. This is not a case where Mr Burns could not avoid witnessing the unlawful homosexual vilification as was the case, for example, in Burns v Dye [2002] NSW ADT 32 where the vilifier was a neighbour and the offending conduct took place in the immediate vicinity of Mr Burns’ home. Nor is it a case where the offending material was communicated directly to Mr Burns, posted, for example, on his Facebook or sent to him by email. Mr Burns has put in place a “Google alert” for the purpose of being alerted to publications about himself that are posted on the Sunol website, in circumstances where it must be inferred he was aware the website was likely to contain material that he would find distressing and hurtful.

92. It is possible that Mr Burns’ PTSD was further aggravated as a result of the part of second vilification complaint we have found to be substantiated and/or that it caused him to suffer additional trauma. However, on the available evidence, we are not satisfied of this to the requisite standard. In any event, coupled with the evidence that Mr Burns failed to take reasonable steps to mitigate his loss, we have decided not to exercise the discretionary power to award compensation.

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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: 31 July 2017