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 MemberDecision: 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 SunolRepresentation: 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…
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- AGLC
- Burns v Sunol (No 2) [2014] NSWCATAD 44
- Case
- [2014] NSWCATAD 44
- Decision Date
CaseChat Overview and Summary
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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