Burns v Sunol (No 2) - [2014] NSWCATAD 44

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Sunol (No 2) [2014] NSWCATAD 44
Hearing dates: 21 February 2014
Decision date: 08 April 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: N Hennessy, LCM, Deputy President
N Hiffernan, General Member
J Newman, General Member
Decision:
1. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 6 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.
2. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 11 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.

Catchwords: ANTI-DISCRIMINATION - REMEDIES - meaning of s 108(7) of the Anti-Discrimination Act 1977 - whether Mr Sunol has breached orders to remove certain material from his website and not publish material to the same or similar effect -liability for further damages
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Burns v Sunol [2014] NSWCATAD 2
Category: Principal judgment
Parties: Garry Burns
John Sunol
Representation: Mr Burns (Applicant in person)
Mr Sunol (Respondent in person)

File Number(s): 131012

reasons for decision

Introduction

On 22 January 2014 the Tribunal made orders that Mr Sunol apologise to Mr Burns and remove homosexually vilifying material and material which victimised Mr Burns from websites controlled by him. The Tribunal also ordered Mr Sunol to refrain from publishing further material "to the same or similar effect": Anti-Discrimination Act 1977 (NSW) s 108(2)(b). In default of compliance with those orders within 14 days, the Tribunal ordered that Mr Sunol pay Mr Burns $2,500 for each breach: Anti-Discrimination Act, s 108(9). The Tribunal's orders in Burns v Sunol [2014] NSWCATAD 2 (the Tribunal's first decision) are set out in full at the end of these reasons. The matter was listed on 21 February 2014 to determine whether Mr Sunol had complied with the Tribunal's conduct orders.

Mr Sunol complied with the orders to apologise and to remove the vilifying and victimising material identified by the Tribunal in its first decision from websites controlled by him. He has not complied with the orders to refrain from publishing further material "to the same or similar effect."

Legislative provisions

The provision of the Anti-Discrimination Act which makes homosexual vilification unlawful is s 49ZT:

(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.

A public act is defined in s 49ZS:

A public act is defined in s 49ZS as follows:

"public act" includes:

(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

(b) any conduct (not being a form of communication referred…

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) [2014] NSWCATAD 44
Case: [2014] NSWCATAD 44
Decision Date: 08 April 2014

CaseChat Overview and Summary

The case of Burns v Sunol (No 2) involved a dispute between Mr Burns and Mr Sunol before the NSW Civil and Administrative Tribunal. Mr Burns brought an action against Mr Sunol for breach of the Anti-Discrimination Act 1977, alleging discrimination based on disability. The initial proceedings resulted in orders being made against Mr Sunol, which included directives to remove certain material from his website and refrain from publishing material of a similar nature. The current proceedings before the Tribunal focused on whether Mr Sunol had breached those orders and, if so, the appropriate remedies.

The legal issues before the Tribunal were whether Mr Sunol had breached the orders made in the initial proceedings and, if so, what the appropriate remedies were. Specifically, the Tribunal had to consider whether the breaches were intentional or reckless and whether Mr Sunol had an arguable basis for his actions. The Tribunal also had to determine the appropriate amount of damages to be awarded to Mr Burns for each breach.

The Tribunal found that Mr Sunol had breached the orders by continuing to publish material of a similar nature to that which was previously found to be discriminatory. The Tribunal held that the breaches were not accidental but were instead intentional or reckless. The Tribunal further found that Mr Sunol did not have an arguable basis for his actions, and therefore, he was liable for further damages. The Tribunal awarded Mr Burns the sum of $2,500 for each breach, totaling $5,000. Mr Sunol was ordered to pay this amount within 28 days of the date of the decision.

Orders

Orders of the court

1. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 6 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.

2. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 11 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.

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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Medium Neutral Citation:	Burns v Sunol (No 2) [2014] NSWCATAD 44
Hearing dates:	21 February 2014
Decision date:	08 April 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy, LCM, Deputy President N Hiffernan, General Member J Newman, General Member
Decision:	1. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 6 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2. 2. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 11 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.
Catchwords:	ANTI-DISCRIMINATION - REMEDIES - meaning of s 108(7) of the Anti-Discrimination Act 1977 - whether Mr Sunol has breached orders to remove certain material from his website and not publish material to the same or similar effect -liability for further damages
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Burns v Sunol [2014] NSWCATAD 2
Category:	Principal judgment
Parties:	Garry Burns John Sunol
Representation:	Mr Burns (Applicant in person) Mr Sunol (Respondent in person)
File Number(s):	131012