Burns v Sunol (No 2)

[2016] NSWCATAD 97

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Burns v Sunol (No 2) [2016] NSWCATAD 97
Hearing dates:	On the papers
Date of orders:	18 May 2016
Decision date:	18 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member M O’Halloran, General Member M Murray, General Member
Decision:	Pursuant to s 108(2)(g) of the Anti-Discrimination Act 1977 (NSW), the Tribunal declines to take any further action in the matter.
Catchwords:	EQUAL OPPORTUNITY — homosexual vilification — complaint found proven — whether the power to publish an apology can and should be exercised — decline to take further action
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Burns v Sunol [2012] NSWADT 246 Burns v Sunol [2016] NSWCATAD 16 Burns v Sunol [2015] NSWCATAD 40 Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267 Burns v Corbett [2013] NSWADT 227 Burns v Sunol [2014] NSWCATAD 61 Burns v Sunol [2016] NSWCATAD 74
Category:	Principal judgment
Parties:	Garry Burns (Applicant) Christopher Sunol (Respondent)
Representation:	Solicitors: G Burns (Applicant in Person) R Balzola & Associates (Respondent)
File Number(s):	1510181

REASONS FOR DECISION

1. In a decision made on 21 January 2016, we found substantiated a complaint lodged by Gary Burns with the President of the Anti-Discrimination Board, alleging that John Sunol had published material on the internet that vilified homosexual persons in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act): Burns v Sunol [2016] NSWCATAD 16 (Burns 2016). In that decision we invited Mr Burns to advise the Tribunal and Mr Sunol of the orders, if any, he sought under s 108(2) of the Act and to provide supporting evidence and submissions. Mr Sunol was invited to provide evidence and submissions in reply. Both parties provided the Tribunal with brief written submissions.

2. In a letter to the Registrar dated 21 January 2016, Mr Burns wrote that he sought the following orders:

[Mr Sunol] is to publish an apology in the Newcastle Herald in a prominent position at his own expense and to also to apologise to the Applicant in writing.

Any such apology must be pursuant to the Anti-Discrimination Act 1977 (NSW) and to be written in a format determined by the Tribunal and not to by [Mr Sunol] himself.

3. Mr Sunol opposes the proposed orders.

4. Despite being directed to do so, neither party advised the Registrar whether they consented to the Tribunal deciding the issue of whether orders should be made under s 108(2) of the Act, “on the papers”. Given the narrow scope of issues to be determined, we are satisfied that this issue can adequately be dealt with in the absence of the parties and on the bases of the submissions provided. We therefore decided to exercise the power conferred by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) to proceed to determine the issue of orders without holding a hearing.

Should Mr Sunol be ordered to issue an apology?

5. Apart from citing two authorities: Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 and Burns v Corbett [2013] NSWADT 227, Mr Burns provided no submissions in support of the proposed orders.

6. In written submissions dated 4 February 2016 and an affidavit deposed on the same day, Mr Sunol canvased a large number of wide-ranging issues. In the main they addressed whether the initiating complaint could be found to be substantiated. Mr Sunol was not given leave to re-agitate that issue, it has been determined and it will not be addressed in these reasons.

7. We address below the submissions made by Mr Sunol that are relevant to our invitation to the parties to make submissions about whether orders should be made under s 108(2) of the Act.

Can and should the power to order Mr Sunol to issue a public apology be exercised?

8. We understand Mr Sunol to contend that the Tribunal lacks power to make the proposed orders because, he asserts, there is no evidence of Mr Burns suffering “personal damage, loss or harm”. No authority was cited in support for that proposition.

9. That submission is rejected. Whether a complainant has suffered “personal damage, loss or harm” may be relevant to whether the power to order an apology under s 108(2)(d) should be exercised but it is not a pre-condition to its exercise. That is made plain by the terms of s 108 of the Act which provide that where a complaint is found substantiated in part or whole, the power to make orders under s 108(2) is enlivened:

108   Order or other decision of Tribunal

(1)    In proceedings relating to a complaint, the Tribunal may:

(a)    dismiss the complaint in whole or in part, or

(b)    find the complaint substantiated in whole or in part.

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

…

(d)   order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

…

10. While the power to make the proposed order can be exercised, we have decided not to do so for the following reasons.

11. First, apart from referring to two decisions concerning complaints of unlawful homosexual vilification where the respondent vilifier was ordered to issue an apology: Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 and Burns v Corbett [2013] NSWADT, Mr Burns has not addressed why in the circumstances of this case it is appropriate that the power to issue an apology should be exercised.

12. Second, with respect to the proposed apology to be published in the Newcastle Herald, Mr Burns has provided no material, which might explain why it is appropriate to order the publication of an apology in the Newcastle Herald, as opposed to some other publication. Nor has he provided any evidence about the cost of placing an apology in the Newcastle Herald.

13. In reaching this decision we acknowledge that on many occasions, differently constituted tribunals of the NSW Civil and Administrative Tribunals and one of its predecessor tribunals, the Administrative Decisions Tribunal, have made orders under s 108(2)(d) of the Act where a complaint of unlawful homosexual vilification has been found to be substantiated. See for example, Burns v Sunol [2012] NSWADT 246 and Burns v Sunol [2014] NSWCATAD 61, and Burns v Sunol [2016] NSWCATAD 74. Nonetheless, principles of comity do not require that where a complaint of unlawful homosexual vilification is substantiated, an order in the form of an apology must follow. Mr Burns has not addressed why in this matter an apology issued to either himself or published in the Newcastle Herald is an appropriate order. In addition, we consider it relevant that an order is in existence enjoining Mr Sunol from continuing to publish material of a type, we found to constitute unlawful homosexual vilification: Burns v Sunol [2015] NSWCATAD 131.

14. We are not persuaded in the circumstances of this case that it is appropriate that Mr Sunol be ordered to issue Mr Burns an apology. Accordingly we decline to take any further action in the matter.

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