Burns v Sunol (No 2)

Case [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

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AGLC
Burns v Sunol (No 2) [2017] NSWCATAD 236
Case
[2017] NSWCATAD 236
Decision Date

CaseChat Overview and Summary

The matter of Burns v Sunol (No 2) was heard in a relevant Australian tribunal. The primary dispute involved allegations of vilification and victimisation under the Anti-Discrimination Act 1977, arising from the publication of a newspaper article. The respondent, Sunol, argued that the publication of the article amounted to a public act that could incite hatred or serious contempt towards homosexual persons. The applicant, Burns, contended that he was not subjected to a detriment as a result of the publication, which would constitute victimisation.

The central legal issues revolved around the interpretation of "public act" and "detriment" within the context of the Anti-Discrimination Act. The tribunal had to determine whether the publication of the article had the capacity to incite hatred or serious contempt for homosexual persons and whether the applicant was subjected to a detriment, thus constituting victimisation. Furthermore, the tribunal considered the scope of evidence that could be taken into account, including matters of common knowledge.

In its reasoning, the tribunal found that the publication did not have the capacity to incite hatred or serious contempt for homosexual persons, thus dismissing the second vilification complaint in part. The tribunal also held that the applicant was not subjected to a detriment, dismissing both the first vilification complaint and the victimisation complaint. The tribunal assessed the evidence presented, including matters of common knowledge, and concluded that the applicant did not suffer any detriment as a result of the publication.

The tribunal's final orders included the partial substantiation of the second vilification complaint, dismissal of the first vilification complaint, and dismissal of the victimisation complaint. The tribunal did not award any damages to the applicant, as it found that the publication did not amount to a public act of vilification or victimisation under the Act.

Orders

Orders of the court

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

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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