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