Kerslake v Sunol (Discrimination)

Case [2023] ACAT 18

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KERSLAKE v SUNOL (Discrimination) [2023] ACAT 18

DT 35/2020

DT 42/2020

DT 43/2020

DT 45/2020

Catchwords:               DISCRIMINATION – vilification on the basis of homosexuality – social media posts – remedies – removal of posts order – refrain from further similar posts order – statement of breach order – apology order – compensation order – whether compensation should be ordered if applicant not named or identified in posts – whether breach of non-disclosure order – expenses of compliance with a subpoena to a third party – costs

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 39, 48, 74

Civil Law (Wrongs) Act 2002 s 139E
Discrimination Act 1991 ss 2, 67A, Dictionary
Human Rights Commission Act 2005 ss 53, 53E
Legislation Act 2001 s 146

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedure Rules 2020 r 80

Cases cited:Burns v Corbett [2018] HCA 15

Burns v Sunol [2012] NSWADT 246
Burns v Sunol(No 2) [2012] NSWADT 247
Burns v Sunol [2018] NSWCATAD 78
Citta Hobart v Cawthorn [2022] HCA 16
Eatock v Bolt [2011] FCA 1180
Jones v Toben [2001] FCA 1150
Jones and Harbour Radio Pty Limited v Trad(EOD) [2011] NSWADTAP 19
Kerslake v Sunol [2022] ACAT 40
Jones v Trad [2013] NSWCA 389
Qantas Airways Ltd v Gama [2008] FCAFC 69
Rep v Clinch [2021] ACAT 106
Trad v Jones (No.3) [2009] NSWADT 318
Uren vJohn Fairfax & Sons Pty Ltd [1966] HCA 40

List of

Texts/Papers cited:     LexisNexis, Halsbury’s Laws of Australia, (online) Defamation, ‘5 Remedies’ [145-2630], [145-2655], [145-2640] by David Rolph

Queensland Human Rights Commission, Vilification case studies (online)
Australian Human Rights Commission, ‘Federal Discrimination Law’ (online)

Tribunal:Senior Member R Orr KC

Date of Orders:  22 March 2023

Date of Reasons for Decision:      22 March 2023

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 35/2020

DT 42/2020

DT 43/2020

DT 45/2020

BETWEEN:

TIM KERSLAKE
Applicant

AND:

JOHN SUNOL
Respondent

TRIBUNAL:Senior Member R Orr KC

DATE:22 March 2023

ORDER

DT 35/2020

The Tribunal orders that:

  1. The posts numbered DT 35.001, DT 35.002, DT 35.003, DT 35.006, DT 35.007, DT 35.011, DT 35.012, DT 35.014, DT 35.018, DT 35.019, DT 35.025, DT 35.032, DT 35.038 and DT 35.039 in exhibit A5 are vilification, and the respondent must remove those posts from any twitter account, website, or social media account of any type that he owns or controls.

  2. The respondent must not repeat or continue the publication of those posts, or posts in substantially the same terms.

  3. The respondent must post a statement on any twitter account, website, or other social media account that he owns or controls at any time over the next six months, and for a period of six months, which states as follows:

    John Sunol has been found to have vilified a person and group of people on the ground of their homosexuality in some online posts he has made by the ACT Civil and Administrative Tribunal,…

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Details
AGLC
Kerslake v Sunol (Discrimination) [2023] ACAT 18
Case
[2023] ACAT 18
Decision Date

CaseChat Overview and Summary

In Kerslake v Sunol, the ACT Civil and Administrative Tribunal addressed the issue of vilification and victimisation arising from social media posts made by the respondent, John Sunol, against the applicant, Mr Kerslake. The Tribunal found that certain posts were vilification based on homosexuality but dismissed other complaints. The proceedings covered multiple cases with distinct identifiers: DT 35/2020, DT 42/2020, DT 43/2020, and DT 45/2020. The Tribunal considered various remedies and alleged breaches of orders, including the issuance of a subpoena to a third party.

The legal issues before the Tribunal involved determining the appropriate remedies for the vilification found, whether there had been breaches of a non-disclosure order, and the costs associated with the subpoena issued to a non-party. Mr Kerslake sought remedies such as the removal of posts, a statement of breach, an apology, and compensation. Mr Sunol contested these remedies, arguing that Mr Kerslake had not been identified in some posts, and that the proceedings were complicated and brought in bad faith. Additionally, Mr Swift, who was subpoenaed, sought reimbursement of his costs.

The Tribunal ruled in favour of Mr Kerslake, ordering Mr Sunol to remove the identified vilifying posts and refrain from posting similar content in the future. It also mandated Mr Sunol to publish a statement of breach on his social media accounts and pay compensation of $4,000 to Mr Kerslake. The Tribunal dismissed the complaints in cases DT 42/2020 and DT 43/2020, finding no victimisation. Regarding the subpoena costs, Mr Swift was ordered to reimburse $1,474 to Mr Sunol. The Tribunal did not make an order for costs in the proceedings, and it revoked certain confidentiality orders, maintaining only the order regarding a medical report.

Orders

Orders of the court

DT 35/2020

The Tribunal orders that:

1.

The posts numbered DT 35.001, DT 35.002, DT 35.003, DT 35.006, DT 35.007, DT 35.011, DT 35.012, DT 35.014, DT 35.018, DT 35.019, DT 35.025, DT 35.032, DT 35.038 and DT 35.039 in exhibit A5 are vilification, and the respondent must remove those posts from any twitter account, website, or social media account of any type that he owns or controls.

2.

The respondent must not repeat or continue the publication of those posts, or posts in substantially the same terms.

3.

The respondent must post a statement on any twitter account, website, or other social media account that he owns or controls at any time over the next six months, and for a period of six months, which states as follows:

John Sunol has been found to have vilified a person and group of people on the ground of their homosexuality in some online posts he has made by the ACT Civil and Administrative Tribunal, see Kerslake v Sunol [2022] ACAT 40.

4.

The respondent must pay the applicant the sum of $4,000 by way of compensation for the vilification.

5.

The respondent must pay to Rod Swift, who was issued a subpoena in these proceedings at the request of the respondent, the sum of $1,474 as Rod Swift’s expenses in complying with the subpoena.

6.

The confidentiality orders made by the tribunal on 21 August 2020 (orders 6 and 7), as amended, and 17 March 2021, are revoked. The confidentiality order made on 17 November 2022 in relation to the medical report remains in place.

7.

There is no order as to costs.

DT 42/2020

The Tribunal orders that:

1.

The complaint is dismissed.

2.

The confidentiality orders made by the tribunal on 21 August 2020 (orders 6 and 7), as amended, and 17 March 2021, are revoked. The confidentiality order made on 17 November 2022 in relation to the medical report remains in place.

3.

There is no order as to costs.

DT 43/2020

The Tribunal orders that:

1.

The complaint is dismissed.

2.

The confidentiality orders made by the tribunal on 21 August 2020 (orders 6 and 7), as amended, and 17 March 2021, are revoked. The confidentiality order made on 17 November 2022 in relation to the medical report remains in place.

3.

There is no order as to costs.

DT 45/2020

The Tribunal orders that:

1.

The posts numbered C.001, C.006, C.007, C.052, C.056, C.069, C.079, C.080 and C.095 in exhibit A8 are vilification, and the respondent must remove those posts from any twitter account, website, or other social media account of any type that he owns or controls.

2.

The respondent must not repeat or continue the publication of those posts, or posts in substantially the same terms.

3.

The respondent must post a statement on any twitter account, website or other social media account he owns or controls at any time over the next six months, and for a period of six months, which states as follows:

John Sunol has been found to have vilified a person and group of people on the ground of their homosexuality in some online posts he has made by the ACT Civil and Administrative Tribunal, see Kerslake v Sunol [2022] ACAT 40.

4.

The respondent must pay the applicant the sum of $4,000 by way of compensation for the vilification

5.

The confidentiality orders made by the tribunal on 21 August 2020 (orders 6 and 7), as amended, and 17 March 2021, are revoked. These are replaced by orders 1 and 2 above. The confidentiality order made on 17 November 2022 in relation to the medical report remains in place.

6.

There is no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a decision on whether the posts were vilification or victimisation, Kerslake v Sunol[1] (first decision), in proceedings DT 35/2020, I found that 14 posts were vilification. In proceedings DT 45/2020, I found that nine posts were vilification.[1] [2022] ACAT 40 I also found that in proceedings DT 42/2020, none of the posts were victimisation, and that in proceedings DT 43/2020, none of the posts were victimisation. Orders were made on 16 May 2022 for a process for the resolution of outstanding issues in this case (further issues). The first issue was what remedies should Mr Kerslake obtain in light of his partial success in proceedings DT 35/2020 and DT 45/2020 (remedies issues). The second was Mr Kerslake alleged that Mr Sunol had breached the non-disclosure order made by the Tribunal[2] in these proceedings and sought appropriate orders in relation to these breaches (non‑disclosure issues). The third was that Mr Sunol applied for a subpoena to a non-party to these proceedings, namely Rod Swift, which the tribunal issued, and Mr Swift complied with. Mr Swift has applied for an order for his costs in relation to his response to that subpoena (subpoena costs issues). Also, in submissions in relation to these issues, the parties have raised generally the issue of costs in the proceedings (costs issues). The orders made above, and the reasons set out below deal with these further issues. Section 53E of the Human Rights Commission Act 2005 provides for a range of remedies for a finding of vilification. The applicant asked for remedies including orders for the removal of posts, prohibition of further similar posts, a statement of breach on the respondent’s websites, an apology, and compensation. The respondent argued that no remedies should be provided because the applicant had been unsuccessful in relation to many posts, the proceedings were complicated, they were brought for a collateral purpose and in bad faith, some posts are no longer in place, some posts are duplicates, some posts do not refer specifically to the applicant (in particular that none of the posts found to be vilification), and that the tribunal had a discretion which should be exercised to refuse remedies. He also argued that his poor health meant remedies should not be ordered. I do not think these are grounds for not granting remedies to the applicant in relation to the posts which were found to be vilification. I also note that Mr Sunol has not offered any apology, nor indeed agreed that any remedy should be provided for his actions. He has shown no recognition of his unlawful actions. He has also stated that he “never will accept any court orders”.[3] Further, he has been found to have committed vilification in other proceedings in the past in relation to statements similar to those found to be vilification in these proceedings.[4] These factors suggest that the Tribunal should grant appropriate remedies in this case.[3] Applicant’s remedies submissions, attachment B[4] See in particular Burns v Sunol [2012] NSWADT 246 and Burns v Sunol(No 2) [2012] NSWADT 247

Ratio Decidendi

Legal Principle Established

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