Kerslake v Sunol (Discrimination)
[2023] ACAT 18
•22 March 2023
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:
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.
The respondent must not repeat or continue the publication of those posts, or posts in substantially the same terms.
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.
The respondent must pay the applicant the sum of $4,000 by way of compensation for the vilification.
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.
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.
There is no order as to costs.
DT 42/2020
The Tribunal orders that:
The complaint is dismissed.
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.
There is no order as to costs.
DT 43/2020
The Tribunal orders that:
The complaint is dismissed.
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.
There is no order as to costs.
DT 45/2020
The Tribunal orders that:
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.
The respondent must not repeat or continue the publication of those posts, or posts in substantially the same terms.
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.
The respondent must pay the applicant the sum of $4,000 by way of compensation for the vilification
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.
There is no order as to costs.
………………………………..
Senior Member R Orr KC
REASONS FOR DECISION
Introduction
These proceedings are claims of vilification under section 67A, and victimisation under section 68, of the Discrimination Act 1991 (Discrimination Act) made by Tim Kerslake (Mr Kerslake or applicant) against John Sunol (Mr Sunol or respondent) in relation to a large number of social media posts. Most of these were written statements; some were oral presentations (which in these reasons are called publications, documents or posts).
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.
Summary of this decision
Remedies issues
[2] In this reasons, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application
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
On this basis, this Tribunal makes orders that the posts found to be vilification are removed, not repeated, and that Mr Sunol post a statement of the outcome of these proceedings. I do not think it appropriate to provide an apology since it is unlikely that this would be an honest statement.
The applicant is not named or identified in the posts found to be vilification. This gives rise to an issue as to whether he should obtain damages. He is clearly a member of the groups of homosexual persons and homosexual activists who are referred to in the posts. He gave evidence that he had significant apprehension, anxiety, and distress on reading the posts. No medical evidence was provided by him. Further, he had a long history of dealings with the respondent and read the posts aware that they were likely to contain statements offending homosexual people. The respondent’s posts were on a public site, but there was no evidence of their popularity. Taking these factors into account, in my view, compensation should be awarded but at the lower end of the historical scale, namely an amount of $4,000 in each of proceedings, DT 35/2020 and DT 45/2020.
Non-disclosure issues
I am not convinced that the respondent breached the confidentiality order. Therefore, no order is made in this regard.
Subpoena costs issues
I find that the respondent should pay the reasonable costs of Mr Swift in responding to the subpoena to him, which I assess at $1,474. An order is made that Mr Sunol pay this amount to Mr Swift.
Costs issues
I do not think there is any basis for making a costs order in any of the proceedings.
First decision
The background and reasons for the findings of vilification are set out in the first decision. I do not repeat these here. Many of the issues raised in relation to remedies, especially by the respondent, concern the substantive issues considered in the first decision. I do not revisit them here.
I do note two points about the first decision. First, in proceedings DT45/2020, in the relevant order it was said that post C.051 was vilification.[5] The specific discussion of the post makes it clear that the finding was in relation to post C.052.[6] The orders made above, therefore, refer to post C.052.
[5] First decision at [9] and [159]
[6] First decision at [363] and [364]
Second, I note that in the substantive proceedings, the respondent raised a number of jurisdictional issues.[7] I note that the respondent did not raise issues arising from Burns v Corbett[8] and at an early hearing, considering an application for interim or other orders, his counsel stated that he did not rely on the principle discussed there. This position has been maintained throughout these proceedings.[9] The respondent did raise a constitutional issue which is briefly discussed in the first decision.[10] In light of the decision in Citta Hobart Pty Ltd v Cawthorn,[11] I note that in my view no real question was raised by that argument as put by the respondent, and it was manifestly hopeless.
Applications
[7] First decision at [42]-[69]
[8] [2018] HCA 15
[9] Respondent’s submissions dated 2 October 2020; Respondent’s list of questions for referral dated 16 February 2021; Respondent’s submissions dated 21 June 2021 at [25]-[32]
[10] First decision at [68]
[11] [2022] HCA 16
In his application in proceedings DT 35/2020, Mr Kerslake asked for various remedies. These were that:
(a)Mr Sunol remove the offending posts (removal of posts order);
(b)Mr Sunol remove other posts “of a similar nature” (removal of similar posts order);
(c)Mr Sunol refrain from making any further public statements on any platform of “similar content” (refrain from further similar posts order);
(d)Mr Sunol record a video advising that he has been found in breach of anti‑vilification legislation (statement of breach order), apologise for his conduct (statement of apology order;
(e)Mr Sunol post this video to all social media accounts he controls and leave it there on a permanent basis;
(f)any new social media account created by Mr Sunol must post a link to the video; and
(g)Mr Sunol make payment of $2,500 for each publication mentioning Mr Kerslake (compensation order).[12]
[12] Exhibit A1; see also exhibit R1, attachment A
The application in proceedings DT 45/2020 does not contain a list of remedies sought. In Mr Kerslake’s list of particularised claims in relation to this complaint, he set out a similar list of remedies, including an amount of $10,000 in compensation.[13] In this document, Mr Kerslake also sets out some relevant evidence, in particular as to the effect of the public acts by Mr Sunol on him.[14] In the applicant’s submissions on remedies, he asks for an apology order, a removal of posts order, a refrain from further similar posts order and a compensation order for $5,000 for the posts found to be vilification.[15]
[13] Exhibit A12 at [339]-[344]
[14] Exhibit A12 at [335]-[338]
[15] Applicant’s remedies submission at [22]
The tribunal made a confidentiality order on 21 August 2020. During the proceedings, Mr Kerslake sought orders on the basis that a confidentiality order made by the tribunal had been breached in Applications for interim or other orders dated 11 September 2020 and 25 November 2020, which have not yet been determined (applications for breach of disclosure orders).
At the request of the respondent, the tribunal issued a subpoena to Rod Swift to attend the hearing and produce documents. Mr Swift filed an Application for interim and other orders on 11 May 2021 seeking an order for his costs (application for subpoena costs).
Procedure in relation to remedies issues
Further material from Mr Kerslake
In relation to the consideration of the remedies issues, Mr Kerslake has provided submissions in relation to orders dated 7 June 2022 (applicant’s remedies submissions). In this, Mr Kerslake summarises the position that on the basis of the findings, “Mr Sunol has, on multiple publicly assessable social media platforms, effectively accused homosexuals generally and myself in particular of the criminal abuse of children”.[16] He asserts that this represents “more serious conduct by Mr Sunol due to the nature of the criminal allegations”.
[16] Applicant’s remedies submissions at [10]
Mr Kerslake also refers to a number of recent posts by Mr Sunol in which Mr Sunol says in relation to these proceedings, “We won!”[17] and that he “never will accept any court orders”.[18] He also refers to other posts from accounts in other names which he says “is the same Facebook page controlled by Mr Sunol where posts were made that were found to be vilification”[19] that state Mr Sunol will refuse to make any payments to any homosexual activists.
[17] Applicant’s remedies submission, attachment A
[18] Applicant’s remedies submission, attachment B
[19] Applicant’s remedies submission at [15]
Mr Kerslake also refers to the NSW decision in 2018 of Burns v Sunol[20] where it was said that it appeared that Mr Sunol’s conduct is capable of constituting contempt of that tribunal, namely failure to make payments ordered and to refrain from publishing material. It is said that these comments and this decision “reflect the apparent disregard Mr Sunol has for civil tribunals and the decisions they reach”.[21]
[20] [2018] NSWCAT 78 at [92]
[21] Applicant’s remedies submissions at [20]
In relation to the non-disclosure issues, Mr Kerslake states that he makes no further claims of the breaches of the confidentiality orders other than those materials already before the tribunal.[22]
[22] Applicant’s remedies submissions at [3]
As discussed below, as the issue of costs is raised by the respondent, Mr Kerslake states this is dealt with by sections 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), and that in accordance with those sections, each party should bear their own costs.[23]
Further material from Mr Sunol and replies by Mr Kerslake
[23] Applicant’s remedies submissions at [4]-[6]
In the first instance, Mr Sunol provided submissions dated 14 July 2022 (respondent’s first remedies submission). These were wide ranging submissions which focussed on the substantive issues involved in this case, considered in the first decision.
Mr Kerslake responded to the respondent’s first remedies submission by a reply dated 16 July 2022 (applicant’s reply to respondent’s first remedies submission). The applicant pointed out the respondent’s first remedies submission was not relevant to the outstanding issues, in particular the remedies issue.
I also could not readily identify anything in the respondent’s first remedies submission which went to the issue of remedies. In light of this, the tribunal wrote to the solicitor for Mr Sunol pointing out this situation and asking the respondent to identify which paragraphs of the respondent’s first remedies submission were said to address the outstanding issues, or alternatively apply to be able to provide a document which addresses these issues.
In response, Mr Sunol provided further submissions dated 26 September 2022 (respondent’s second remedies submission). Some of the submissions made here are possibly relevant to the remedies issues and are addressed below. Some are not and are not dealt with in these reasons.
This respondent’s second remedies submission seems to assume that the outstanding issue before the Tribunal relates to costs. As set out above, that is not correct. At a directions hearing on 17 November 2022, I put to Mr Balzola for Mr Sunol that I would take the approach that the issues raised in these respondent’s second remedies submission go to the issue of whether any remedy should be awarded to Mr Kerslake. Mr Balzola agreed with this approach, but also sought the ability to address some other relevant issues, and directions were made to enable him to do so.
The issues raised in the respondent’s second remedies submission in summary are that the applicant’s conduct disentitles him to costs/remedies; the fact that the proceedings were brought for a collateral purpose disentitles him to costs/remedies; the complexity, protraction, costs, and formality of the proceedings disentitles him to costs/remedies; the applicant acted out of bad faith which disentitled him to costs/remedies; and that there was a statutory discretion in relation to costs/remedies. I discuss these issues below.
At the directions hearing on 17 November 2022, Mr Balzola for Mr Sunol also sought orders allowing him to file a medical report in relation Mr Sunol in the tribunal, but without providing this to the applicant. Such an order was not made, but orders were made that the report could be filed in the tribunal and served on the applicant, but that the applicant must treated it as confidential, except that he could obtain legal and medical advice on it, and related orders.
Mr Sunol provided further submissions in light of the order made on 17 November 2022 dated 1 December 2022 (respondent’s third remedies submission).
Part of these submissions put forward arguments in relation to the substantive issues in the proceedings,[24] which the first decision considered in some detail.[25] They can be raised further in an appeal, but not on the issue of remedies. Mr Sunol argued that some of the posts had been removed, some were duplicates, and that the orders sought for removal and to refrain from posting similar material were too broad, ambiguous and unfair.[26] It was argued that requiring an apology is not appropriate for a range of reasons.[27] He also provided an affidavit of Robert Balzola dated 1 December 2022 (December affidavit of Robert Balzola) which annexes some ‘screen captures’ which are said to show that some posts have been removed or accounts suspended, and a medical report from Dr Enrico Parmegiani (Report of Dr Parmegiani). On the basis of the medical report, it was argued that the proceedings against Mr Sunol were unfair for a range of reasons.[28] As noted at paragraph [31] a confidentiality order was made in relation to the medical report. Except for the medical issue, I consider these arguments and evidence below. The medical issue is dealt with in a confidential appendix which will be provided to the parties.
[24] Respondent’s third remedies submissions at [14]-[45]
[25] First decision at [42]-[58]
[26] Respondent’s third remedies submissions at [64]-[116], [129]-[139]
[27] Respondent’s third remedies submission at [117]-[128]
[28] Respondent’s third remedies submission at [140]-[160]
Mr Kerslake responded to the respondent’s third remedies submission and the doctor’s report in a submission dated 1 December 2022 (applicant’s response to respondent’s third remedies submission).
Remedies issues
The remedies which the tribunal can order are set out in section 53E of the Human Rights Commission Act 2005 (HRC Act), which applies if the tribunal is satisfied that the person complained about engaged in an unlawful act. ‘Unlawful act’ is defined as an unlawful act under the Discrimination Act.[29] The Discrimination Act defines ‘unlawful act’ as an unlawful act under part 7, which includes vilification (section 67A).[30] Section 53E then provides in sub-section (2):
(2) The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
[29] Section 53
[30] Section 2 and Dictionary of the Discrimination Act
Section 57 of the ACAT Act provides that an authorising law may set out the powers of the tribunal and the decisions it may make on an application under the authorising law. In this case, these are set out in section 53E of the HRC Act.
The applicant has sought a range of remedies. I first consider the request that the respondent be ordered to not repeat or continue the posts found to be vilification. In this discussion, I consider the range of arguments put by the respondent as to why such a remedy, or other remedies, should not be granted. I, then, consider the other remedies sought, based on this discussion.
Orders that respondent not repeat or continue the vilification (section 53E(2)(a))
Section 53E(2) of the HRC Act contains three types of possible orders. The first is that the person complained about not repeat or continue the unlawful act.[31] This order is linked to the unlawful act. In its terms, it does not extend to other acts. It does allow orders that the act not continue or be repeated; this suggests that in the case of vilification by posts on the internet, the order can require the removal of current posts, and that the publication of these not be repeated, that is not made again in the future.
[31] Section 53A(2)(a)
The first decision of the Tribunal found a number of posts in issue in proceedings DT 35/2020 and DT 45/2020 were vilification. In light of these findings, I think the starting position should be orders for at least the removal of those posts and for such posts not to be repeated.
The respondent has argued in effect that there should be no order made, except for a costs order where his primary request is that the applicant pay to the respondent his costs on an indemnity basis, though with several alternative positions. As noted, I consider the respondent’s arguments as to costs in the respondent’s second remedies submission on the basis that they apply to the actual orders sought by the applicant, the first of which is that the respondent not repeat or continue the vilification.
Applicant unsuccessful in relation to many posts
The respondent argued in effect that for a range of reasons the applicant’s conduct disentitles him any remedies. He points out that the applicant succeeded on only 23 of the posts complained of, that is about 11%.[32]
[32] Respondent’s second remedies submissions at [5]-[7]
It is true that the applicant was unsuccessful in many of the claims made. However, as the decision shows, the complaints on which he failed were not frivolous. Many of these were insulting and offensive, but they did not reach the higher standard required for a finding of vilification.
Also, to break the figures down more, none of the posts in proceedings DT 42/2020 and DT 43/2020 were found to be victimisation. No remedies will therefore be granted in relation to these proceedings. In proceedings DT 35/2020, 14 of the 41 posts were found to be vilification. In proceedings DT 45/2020, nine out of 105 were also found to be vilification. In my view, these are a significant number of posts, and the applicant is entitled to appropriate remedies for these breaches of the Discrimination Act. The number of posts which were not found to be vilification or victimisation may in other proceedings be relevant to the issue of costs, but as I discuss below, I do not think this issue arises in these proceedings.
Proceedings were complicated etc.
The respondent also argued the proceedings were not simple, quick, inexpensive, or informal. Rather, they were complicated, complex, protracted, expensive, formalised, wasteful, unnecessary, trivial, with significant duplication and which imposed an unnecessary and unfair burden on the respondent.[33]
[33] Respondent’s second remedies submissions at [8]-[25]
As noted, I do not think that the claims were trivial.
There were a large number of posts raised across the four proceedings. It is true that that number of claims were difficult to manage. This did give rise to some significant procedural complications, complexity, and protracted proceedings. But there was little dispute that Mr Sunol made these posts, and the finding of the Tribunal was that he did so. If Mr Sunol makes a large number of offensive posts, he must bear the consequence that someone may complain about these.
These proceedings had a complicated procedural history as set out in the first decision.[34] This procedural complexity was not wholly or even principally brought about by the applicant. There were also some complex legal issues as discussed in the decision. These could not be avoided.
[34] First decision at [14]-[41]
Noting that I think in future such proceedings should be managed more actively, I do not think that the proceedings were wasteful or unnecessary. The Discrimination Act gives rights to complainants and applicants which they are entitled to exercise.
The proceedings were conducted with some level of formality, but in my view, that was necessary to protect the interests of both parties. The respondent has a right to have the claims identified and supported by evidence. In my view, the applicant did clearly identify his complaints, the relevant posts, and the basis upon which he said that they were vilification or victimisation. The respondent also is entitled to a full opportunity to respond to the claims. The level of formality enabled this. Leaving aside the issue of the number of posts, the actions of the applicant did not inappropriately give rise to this formality.
Also, I do not think there was any unfair burden imposed on the respondent. As I have noted, in my view, the applicant did clearly identify his complaints, the relevant posts, and the basis upon which he said that they were vilification or victimisation. The respondent was able to respond to these.
I have no doubt that the proceedings involved some expense for the parties and the tribunal. I have discussed the number of posts raised in such proceedings. I also consider the issue of costs in the proceedings below. I do note that the fact that the tribunal is fundamentally a no-cost jurisdiction is one factor which has been considered in deciding whether a matter should be referred elsewhere,[35] but this needs to be considered within the particular legislative framework. Here the tribunal has specific jurisdiction, and the complaints were appropriately referred to it.[36]
[35] See for example Coutts v Walls [2019] ACAT 66
[36] First decision at [42]-[58]
In my view, the factors raised by the respondent do not disentitle the applicant to remedies for the breaches of the Discrimination Act.
Collateral purpose and bad faith
The respondent also argued that the fact that the proceedings were brought for a collateral purpose and in bad faith disentitles the applicant to costs/remedies. It is unclear what it is that the respondent believes suggests bad faith, but in light of his submissions, I note the following.
It is said that David Bottrill attended the “closed and suppressed hearings as an amicus curiae” and did so to collect further material for the purpose of another complaint against the respondent.[37] I note first that these were not closed hearings. Anyone could attend them, subject to COVID-19 restrictions. There was the confidentiality order, noted above and below, in place; if this is what the respondent regards as a “suppressed hearing”, this is correct. Mr Bottrill was not an amicus curiae in any formal sense. He may have been there to help Mr Kerslake informally, but this does not mean that these proceedings were for a collateral purpose or brought in bad faith by Mr Kerslake.
[37] Respondent’s second remedies submission at [15(3)]
The alleged claim by Mr Bottrill was not provided as evidence. If it breached the confidentiality order, Mr Sunol can seek remedies for this. However, I do not see how, even if it did, this proves bad faith on the part of Mr Kerslake. Mr Kerslake had his own claims which were not frivolous, and which succeeded in part, and for which he is entitled to some remedy.
The respondent quoted a comment by the NSW tribunal in Burns v Folau[38] that “one of the reasons Mr Burns made the complaint was for the collateral purpose of securing a monetary settlement to pay the legal costs of unrelated legal proceedings”.[39] I note that there is no evidence that this was the motivation of Mr Kerslake. There is no evidence he has costs from other proceedings. At any rate, again, Mr Kerslake had his own claim which was not frivolous, and which succeeded in part, and for which he is entitled to some remedy.
[38] [2020] NSWCATAD 287 at [68]
[39] Respondent’s second remedies submission at [26]-[36]
It is also said that these proceedings were part of a long running dispute between Mr Sunol and Mr Kerslake, and also Mr Bottrill and Mr Swift, and that their aim was to destroy Mr Sunol “psychologically, emotionally and ruin him financially”.[40]
[40] Respondent’s second remedies submission at [37]-[48]
It is clear that the posts were part of a broader long running debate, to use a neutral term.[41] It seems that Mr Kerslake does not agree, and has not over a considerable period of time agreed, with Mr Sunol’s views, and that Mr Sunol does not agree, and has not over a considerable period of time agreed, with Mr Kerslake’s views. There was no evidence, however, of any other proceedings by Mr Kerslake against Mr Sunol.
[41] See first decision at [149]
Mr Sunol has been a respondent in a number of proceedings. Mr Sunol clearly believes that these were unfair, but they seem to have generally been successful, at least in part. Notwithstanding this, Mr Sunol has continued to make posts similar to those already found to be vilification. Some of the posts considered in this case are indeed similar to those considered by the NSW tribunal and found to be vilification.[42] Given his conduct, I do not see how Mr Sunol can argue that no remedy should be provided to Mr Kerslake. Rather, the fact that Mr Sunol has similarly acted unlawfully in the past supports the grant of appropriate remedies in this case.
[42] See for example Burns v Sunol [2012] NSWADT 246; Burns v Sunol (No.2) [2012] NSWADT 247
It is also said that another collateral purpose was to “ratchet up” a “long string of precedents to fortify and indeed expand the statutes enacted and originally designed to make an offence acts of unlawful vilification and victimisation in ways not contemplated by the Territory Legislature”.[43] It is not an inappropriate collateral purpose to seek to test and develop the law. All the proceedings which the respondent refers to were determined by independent tribunals or courts. In these proceedings he has been successful in part, and this has been the case in other proceedings. However, if Mr Sunol publishes statements which are arguably vilification, he takes the risk, of which he must be fully aware after so many proceedings, that someone will challenge these comments. To stop this, he needs to be more moderate in his comments. Mr Sunol clearly does not agree with vilification laws, and he is entitled to take this position, and seek to have the law changed, but tribunals and courts are obliged to apply the law as it stands to him as to everyone else.
[43] Respondent’s second remedies submission at [38]-[43]
The respondent in summary states that “the litigation is marred and stained by malice, vexatiousness, compounded by ill-conceived pleadings also atypical [sic] of a plaintiff affected by anima rather than a genuine desire to avail themselves of the protection afforded by the Discrimination Act …”[44]
[44] Respondent’s second remedies submission at [48]
There is no evidence of malice. These proceedings were not vexatious. Nor were they ill-conceived, rather Mr Kerslake had a legitimate claim which he set out carefully and clearly. Mr Kerslake strongly disagrees with Mr Sunol, and Mr Sunol strongly disagrees with Mr Kerslake, but this does not amount to an inappropriate collateral purpose or bad faith.
Some posts no longer in place
The respondent argues that orders for removal should not extend to already removed posts.[45] The December affidavit of Robert Balzola sets out the position that some posts are no longer published. The orders made can address this in their terms by only extending to removal of posts which are still in place. There is no suggestion by the respondent, however, that the posts found to be vilification were never published. The evidence provided by the applicant demonstrates that all the posts in issue in these proceedings were published in the ACT. It is therefore appropriate to take all the posts found to be vilification into account in relation to the other remedies.
Impossibility of enforcement
[45] Respondent’s third remedies submission at [62]-[78]
The respondent argues that the request for an order to remove prospectively any other tweets of a similar nature is speculative and so broad that there is impossibility of enforcement. I agree that care needs to be taken not to make this order too wide.[46] The findings of the tribunal is only in relation to specific posts; no finding is made in relation to other posts; but I think the order can appropriately include posts which are in substantially the same terms as those found to be vilification, that is posts which have only a minor, grammatical or non-substantive difference. Therefore, the order refers to these.
[46] Rep v Clinch [2021] ACAT 106 at [225]-[229]
It is also said that because the respondent is so active on social media, it will be difficult for him to comply with prospective orders. In my view, this is no reason not to make such an order, rather it suggests the need for such an order. If Mr Sunol continues to post on social media, he needs to comply with the law in relation to the posts found to be vilification in these proceedings.
Some posts are duplicates
The respondent argues that some of the posts are duplicates, or near duplicate posts, and that this should only count as one act of vilification, since otherwise it exposes the respondent to inappropriate “double jeopardy”.[47] I do not think this is correct. Each statement needs to be assessed as to whether it is an act of vilification. If it is the fact that a statement is vilification, and it is said more than once, this means there are multiple acts of vilification. These multiple acts of vilification should be reflected in the remedies awarded. In my view, the fact that the same or similar vilifying statements are said multiple times provided no basis for providing a remedy for only one publication of them.
Posts do not refer to the applicant
[47] Respondent’s third remedies submission at [80]-[83]
Some of the posts refer to the applicant himself. Most of the posts refer to homosexual people more generally, either all homosexual people or the subset of homosexual activists. Whether a post refers only to homosexual people generally, or to a sub-category, the applicant can seek a remedy for the statements if he is included in the class. The respondent continues to argue that there are doubts as to whether the applicant is a homosexual person, but as I noted in the first decision there is significant evidence that he is, and no evidence that he is not.[48] Similarly, when Mr Sunol refers to homosexual activists, or a similar term, it is clear that this includes the applicant. On this basis, in my view, the applicant is entitled to a remedy for all the posts which have been found to amount to vilification. Further issues arise in relation to an order for compensation, which I discuss below.[49]
Health of respondent
[48] First decision at [107]
[49] At [89]-[103]
The respondent argued that his health should be taken into account in relation to the remedies to be ordered. As noted, he provided a report of Dr Parmegiani said to be dated 1 December 2022. At the directions hearing on 17 November 2022, I made a confidentiality order in relation to the contents of that report.[50] In light of those orders I do not think it appropriate to disclose the contents of the report, or my comments in relation to it, publicly. I have therefore prepared an appendix to these reasons which deals with these matters, and this will only be disclosed to the parties, and within the tribunal as necessary. In summary whilst the report explains various things, I do not think it provides a basis for not providing remedies to the applicant.
Statutory discretion
[50] See above at paragraph [31]
The respondent argues that there was a statutory discretion in relation to costs/remedies.[51] However, section 53E(2) of the Human Rights Commission Act 2005 states that the ACAT must make one or more of the specified orders.[52] There may, therefore, be a discretion about whether more than one order is made and as to the content of the orders, for example the amount of compensation, but there is no broader discretion.
[51] Respondent’s second remedies submission at [49]-[69]
[52] See Legislation Act 2001 section 146
The respondent refers to section 48 of the ACAT Act which concerns costs. The tribunal is principally a no-cost jurisdiction, but as the respondent notes, costs can be awarded in the circumstances set out in section 48.
I discuss this issue further below but note here that the applicant seeks no order for costs. The respondent has made no formal application for costs. It may be he intends his respondent’s second remedies submissions to be such an application, but he does not say how he brings any such application within section 48. I return to this issue below.
Respondent’s conduct
There are a number features of the respondent’s conduct which are also relevant. As I discuss below, Mr Sunol has not offered any apology, nor indeed any remedy for his actions. His respondent’s second remedies submission seems to take the position that no remedy should be awarded to Mr Kerslake, and that indeed Mr Kerslake should pay his costs on an indemnity basis, though with several fall‑back positions.
Further, as the applicant has pointed out, not disputed by the respondent, Mr Sunol has claimed that “we won” the proceedings. This is misleading. He has also stated that he “never will accept any court orders”, and has made similar comments, though not going so far, in some of the posts the subject of these proceedings.[53]
[53] Applicant’s remedies submission at [12]-[16]; original decision at [172], [213], [228], [276], [350]
Further, Mr Sunol has been found to have engaged in vilification in other proceedings in the past by posts similar to those in issue in these proceedings.[54]
[54] Burns v Sunol [2012] NSWADT 246; Burns v Sunol (No.2) [2012] NSWADT 247
These factors suggest that rather than Mr Kerslake receiving no or reduced remedies, he should receive the appropriate remedies for the posts found to be vilification in the circumstances.
Conclusion on remedy that respondent not repeat or continue the vilification
The Tribunal has found that the posts identified were unlawful vilification. None of the issues raised by Mr Sunol suggests that on this basis these posts should not be removed. In my view, it is appropriate that there be an order that Mr Sunol remove from any twitter account, website, or other social media account he owns or controls the posts found to be vilification. I do this in order 1 in proceedings DT35/2020 and DT 45/2020.
I also make an order (order 2) that Mr Sunol not repeat the publication of the posts and those which are in substantially the same terms, that is posts which have only minor, grammatical and non-substantive differences.
Reasonable acts of redress (section 53E(2)(b))
Second, section 53E(2)(b) of the HRC Act extends to an order that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act.
The applicant seeks that Mr Sunol record a video advising that he has been found in breach of anti-vilification legislation and apologise for his conduct and link this to all his twitter accounts and leave this there permanently; that he posts this video to all social media accounts he controls and leave them there on a permanent basis; and that any new social media account created by Mr Sunol must post a link to the video.
I note several elements of this request. First, the applicant asks for the respondent to publish the fact that he has been found in breach of anti-vilification legislation. It is correct that he has been found in breach. I think it is appropriate to require the respondent to publicise this fact on the website where the vilification was published. In Eatock v Bolt (No.2),[55] Justice Bromberg ordered such a notice and identified several reasons for doing so. He noted that such an order would have the effect of redressing the hurt felt by those injured; restoring the esteem and social standing which has been lost as a consequence of the contravention; informing those influenced by the contravening conduct of the wrongdoing involved; and helping to negate the dissemination of in that case racial prejudice, which in this case is sexual orientation prejudice.
[55] [2011] FCA 1180 at [15]
The comments by Mr Sunol clearly were not only offensive to Mr Kerslake and the homosexual community, but incited hatred against them. A statement that the posts were unlawful appropriately addresses the general standing of those affected, advises those who view the websites of the contravention, and importantly negates the sexual preference prejudice.
As I discuss below, Mr Sunol has not offered any apology, nor indeed any remedy for his actions. In this context, I think it is appropriate to require him to at least publicise the Tribunal’s decision. Further, as the applicant has pointed out, not disputed by the respondent, he has claimed that he won the proceedings. This is not correct and warrants a requirement that he publish the correct position. He has also stated that he “never will accept any court orders” and has been found to have committed vilification in other proceedings in the past.
Second, the applicant asks that these posts contain an apology. The issue of requiring an apology in these types of proceeding is a complicated one, and divergent views have been expressed. In some cases of vilification, it has been suggested that an order for an apology is an appropriate remedy. However, in Jones v Toben, Justice Branson stated that it was not appropriate “to seek to compel the respondent to articulate a sentiment that he plainly does not feel” and indeed this would not be real apology, and a number of decisions have taken this approach.[56] In Eatock v Bolt (No.2),[57] an apology was not compelled, but a corrective notice was, as noted above at [80], seen as the appropriate order.
[56] [2001] FCA 1150, [106]; Australian Human Rights Commission, Federal Discrimination Law, (online), [7.3] and the cases cited there
[57] [2011] FCA 1180 at [50]
In my view, Mr Sunol should apologise, but he has not offered to do so, and it is clear to me that any compelled apology would not reflect his true beliefs. In these circumstances, I do not think an apology should be ordered.
Third, Mr Kerslake asks that the statement of breach stay on the sites permanently. I do not think this would be an appropriate duration. I am willing to order that the statement stay on the sites for six months.
Fourth, Mr Kerslake asks for a video to be placed on all the respondent’s websites. I do not think a video is the appropriate medium. Most of the posts found to be vilification were written posts. I think the statement of breach should be in this form.
Fifth, he asks that it be placed on any new websites opened by Mr Sunol. I am prepared to order this in relation to new websites created in the next six months.
In my view, it is appropriate that there be an order that Mr Sunol publicise the outcome of these proceedings on any twitter account, website, or other social media he owns or controls at any time over the next six months, and for a period of six months. I do this in order 3 in proceedings DT 35/2020 and DT 45/2020.
Compensation (section 53E(2)(c))
I note that section 53E(2)(c) of the HRC Act states that unless the complaint has been dealt with as a representative complaint an order for compensation can be made. Section 71 of the Act deals with representative complaints, and it is not clear that this complaint is such a representative complaint. It complains of vilification of Mr Kerslake, but also of other homosexual people. However, it does not seem that this of itself makes it a representative complaint. At any rate, it is clearly a claim by Mr Kerslake personally, and on this basis, he can claim compensation under section 53E(2)(c).
Nature of compensation
The reference in section 53E(2)(c) states that it is to be “compensation for any loss or damage suffered by the person because of the unlawful act”. These terms are not defined and therefore take their ordinary meaning, within a particular legal context.[58]
[58] See generally Rep v Clinch [2021] ACAT 106 at [203]-[218]
Section 53E(3)(b) provides that in making an order for compensation, including for compensation for vilification, the tribunal must consider “the inherent dignity of all people and the impact of the discrimination on the person’s dignity”. The example given, which can be taken into account in interpreting the section,[59] is “distress, humiliation, loss of self-esteem, loss of enjoyment of life”. This suggests that distress and humiliation can be a basis for compensation for vilification.
[59] Legislation Act 2001, sections 126(4) and 132(1)
It seems that generally in this context this compensation is for loss to the applicant; it is not a punishment of the respondent. In many cases of discrimination, as in damages awarded under other statutory claims, the appropriate measure of compensation will be based on that for the analogous tort.[60] For vilification, it seems that defamation is the analogous tort. In defamation, general damages, not based on economic loss, can be awarded to compensate for the intangible loss suffered to the plaintiff’s reputation, including an amount for consolation for the injured feelings and personal distress and hurt caused to the plaintiff by the publication. These damages must have an appropriate and rational relationship to the harm sustained. This element is generally seen as compensatory.[61]
[60] Qantas Airways Ltd v Gama [2008] FCAFC 69 at [94] (French and Jacobson JJ)
[61] LexisNexis, Halsbury’s Laws of Australia, (online) Defamation, ‘5 Remedies’ [145-2630], [145‑2655], [145-2640] by David Rolph; Civil Law (Wrongs) Act 2002 section 139E; Uren vJohn Fairfax & Sons Pty Ltd [1966] HCA 40
Loss for injury to feelings has been regularly compensated for under vilification provisions, on the basis principally of simply an assessment of the words used and having regard to previous decisions.[62]
[62] Australian Human Rights Commission, Federal Discrimination Law (online) at [7.2.3]; See for example Burns v Sunol [2012] NSWADT 246; Burns v Sunol (No.2) [2012] NSWADT 247; see also Queensland Human Rights Commission, ‘Vilification case studies’ (online)
I do note that section 53E(3)(c) provides that in making a compensation order, the tribunal must take into account the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination, on the one hand, and other human rights, on the other. The relevant example refers specifically to freedom of expression. I do not think that a modest compensation order unreasonably burdens freedom of speech, especially given other awards made in relation to vilification claims.
Applicant’s claim
In this case, Mr Kerslake in his statement explained the impact on himself.[63] This was not challenged by the respondent. This is in summary that Mr Sunol’s conduct stretches over 21 years; it began when Mr Sunol targeted a website Mr Kerslake had created with “harassing emails, telephone calls and SMS messages” making “vile and disgusting posts in the comments section of the website”; as a younger gay man the seemingly unrelenting harassment and bullying was traumatic and the trauma has been resurrected by Mr Sunol’s conduct complained about in these proceedings; it has caused Mr Kerslake “significant apprehension, anxiety and distress”; this is heightened by the fact that the statements are on public forums; he says, and there is evidence of this in the posts considered in the first decision, that Mr Sunol admits that his accounts have been set up to amplify attacks and incite others to do the same;[64] these attacks have caused Mr Kerslake apprehension and fear of ridicule, scorn and even violence.
Where applicant not specifically referred to in posts
[63] Exhibit A9 at [142]-[149]; and exhibit A12 at [335]-[338]
[64] See for example first decision at [193] and [297]
In this case, a number of issues do arise in relation to the award of damages. As the respondent notes, none of the posts found to be vilification refer specifically to Mr Kerslake. They do refer to homosexual people generally, or sometimes a subset of “LGBT political activists” or related terms.[65]
[65] See for example first decision at [363] and [406]
In a number of more recent similar cases, it seems that the complainant sometimes does not claim compensation but is content with other remedies. However, there are a number of early decisions where compensation was awarded to a member of a class subject to vilification under similar anti-vilification laws. These include Trad v Jones (No.3) (Trad).[66] This concerned Mr Trad who was a practising Muslim who alleged that segments of broadcasts by Mr Alan Jones incited listeners to hatred towards, or serious contempt for, amongst others, members of the Lebanese Muslim community in NSW. Mr Trad sought and received an award of damages. The NSW tribunal stated:
237 The task of assessing damages for non-economic loss in a case of unlawful discrimination is notoriously difficult. This case is no exception. …
239 Mr Trad said that he couldn’t believe that "public discourse had descended to such a level of calling human beings vermin ... rapists and pillagers ... that they [were] a security problem in the making". He claims that he "felt terrible" on hearing the Schedule A broadcast. We accept that claim. …240 There is no evidence that Mr Trad required medical treatment or counselling as a result of hearing or learning of the offending broadcasts and nor is this asserted. It is apparent from his evidence that he is a reasonably resilient character. Nonetheless we accept his claim that he was distressed by the offending material and anxious for the ramifications it might have for members of his family and community.
241 In our view having regard to all circumstances the sum of $10,000 is an appropriate amount for damages.[66] [2009] NSWADT 318
There was an appeal of this decision to the NSW appeal tribunal where the question of damages was squarely raised. The NSW appeal tribunal stated:[67]
Whether the Tribunal erred in law by awarding Mr Trad damages (Ground 15)
95.The suggestion was that Mr Trad was not personally identified in schedule A and suffered no loss, even as to hurt feelings, from it.
96.Mr Trad was however a Lebanese Muslim man and therefore among those vilified. He also expressed his hurt, albeit on account of the insult to young Lebanese men, including his own sons. He said:
"I was distraught and overwhelmed by the fact that having been born here and being part of the Australian community my boys were referred to as hating Australia, hating a country and referred to as rapists, pillagers and plunderers and likened to rodents."
97.The award of damages in a modest sum was not beyond the bounds of a permissible exercise of a discretionary judgment.
[67] Jones and Harbour Radio Pty Limited v Trad(EOD) [2011] NSWADTAP 19
There was a further appeal against this decision on a range of grounds to the NSW Court of Appeal. The issue of damages was not considered, though nothing said suggests that it was inappropriate, but because the appellant was successful on other grounds the respondent was ordered to repay the amount of $10,000 and the matter was remitted.[68]
[68] Jones v Trad [2013] NSWCA 133
In Burns v Sunol, a case which as I have noted was very similar to this one, the NSW tribunal returned to this issue.[69] The tribunal there thought that publication on the internet by Mr Sunol was different to publication on the radio by a high‑profile broadcaster. The tribunal stated that in its view, when damages are sought by a member of a broad group or class (such as homosexual people or members of a particular race) on the ground of vilification through the publication of statements applying to the group or class as a whole, the complainant should be required to establish a special sensitivity to vilification, as Mr Burns has done, or some other reason why he or she has suffered ‘special damage’ in addition to the damage suffered by other members of the group or class. A number of reasons were given for this position, and it was noted it was apparently in conflict with that of the tribunal in Trad. In that case the tribunal accepted Mr Burns’ assertion that he experienced significant distress, humiliation and anxiety when he read the relevant posts.
[69] [2012] NSWADT 246 at [111]-[133]
In Burns v Sunol some of the posts were on Mr Sunol’s site. Mr Burns had to go to those sites, knowing of the likelihood that their contents would be hurtful to him. However, the tribunal held it would not be appropriate for it to rule that Mr Burns in choosing to log in to Mr Sunol's websites even after becoming aware that they were likely to contain publications offending homosexual people, failed to mitigate the damage caused to him by these. They did, however, treat as relevant the fact that Mr Burns could choose whether or not to visit Mr Sunol's website and run the known risk of encountering hurtful material. It followed from these two considerations that the damage to Mr Burns’ feelings caused by each of the later publications encountered by him on one of Mr Sunol's websites was assessed at a markedly lower level than the damage caused in other circumstances. For the seven posts in Burns v Sunol, the damages were assessed at $3,000.[70] For the four posts in Burns v Sunol (No. 2) the damages were assessed at $2,500.[71]
[70] [2012] NSWADT 246 at [132]-[133]
[71] [2012] NSWADT 247 at [68]-[75]
In this case, I accept the evidence of Mr Kerslake that the posts have caused him “significant apprehension, anxiety and distress”. I also accept that the posts were not like those in Trad which were made by a high-profile personality to a broad range of people. There was no evidence as to the reach of Mr Sunol’s posts.[72] Further on his own evidence, Mr Kerslake had known about Mr Sunol’s views for many years, but nonetheless took it upon himself to choose to visit his sites knowing the risk of encountering hurtful material. These factors suggest that damages should be at the lower end of the spectrum, similar to the awards in Burns v Sunol and Burns v Sunol (No.2). However, I note that over ten years has passed since the assessment in Burns v Sunol and Burns v Sunol (No.2), and more since the assessment in Trad, and that there were more posts found to be vilification in each of the proceeding here than in the Burns cases. I think that $4,000 is appropriate compensation in each of the two proceedings.
[72] [2012] NSWADT 246 at [120]
In my view, it is appropriate that there be an order that Mr Sunol pay to Mr Kerslake and amount of $4,000 in order 4 in proceedings DT 35/2020 and DT 45/2020.
Non-disclosure issues
Confidentiality order
The tribunal made a confidentiality order on 21 August 2020. This provided that pursuant to section 39 of the ACAT Act there was to be no publication by either party (whether by social or traditional media, in digital, written or oral form, or in any other manner) of the matters contained in the documents filed with the Tribunal or received in evidence by the Tribunal for the hearing, or of descriptions of the conduct of the directions hearings and hearing. This was amended from time to time, and was subject to an exception for the purpose of obtaining legal advice or witness statements (confidentiality order).
At the commencement of the substantive hearing on 17 March 2021 an order generally in similar terms was made in relation to those who attended the hearing. The hearing was otherwise held in public.[73]
Alleged breaches of confidentiality order
[73] Transcript of proceedings, 17 March 2021, pages 16-17; see also first decision at [20]-[21]
In the applications for breach of the non-disclosure order, Mr Kerslake sought orders on the basis that the confidentiality order had been breached by Mr Sunol.[74]
[74] See above at paragraph [18]
A further application was made on about 10 November 2021 and heard on 2 December 2021.[75] In relation to that application, the Tribunal dismissed it. This was on the basis that the confidentiality order does not prevent disclosure of the existence of these proceedings or their nature. It does not prevent Mr Sunol or anyone else expressing views on these proceedings, or vilification proceedings more generally. In my view, the order does prevent parties publishing matters contained in the documents filed with the tribunal or received in evidence by the tribunal for the hearing which would include evidence of the relevant posts themselves. It also does prevent descriptions of the conduct of the directions hearings and hearing.
[75] Original decision at [24]
The application dated 11 September 2021 sought orders for the removal of “all tweets and audio files that make reference to these cases” and take appropriate steps as authorised by the Act with respect to contempt of the tribunal. The grounds relied upon referred to the confidentiality order and stated that “Mr Sunol had made a number of tweets that appear to reference other cases he has been involved in, but in fact link to audio files which release details about these cases”. It was said that they were posted on 23 August, 3 September, and 11 September 2020. The text of these posts on 23 August 2020 were submitted to the tribunal.
The texts refer to the existence of these proceedings and other proceedings. I do not think that this breaches the confidentiality order. The posts also include interactions between Mr Sunol and others which do not seem to refer to the proceedings. They also include statements such as “Audio transcript Part 1 – background – Collier v Sunol ZGEEK – creation of homosexual vilification case law. tinyurl.com/MPEG – 4- Audio 1”. I do not think that this breaches the order. It is said that the URL is of a transcript of some of these proceedings, but the post is not, and there is no further evidence of the link.
The application dated 25 November sought an order pursuant to section 74 of the ACAT Act in relation to payment of an amount to the Territory. It refers to the confidentiality order and attaches various posts.
The application sets out a number of posts. One of them is from an account of Marina Lyon, which is said to be in fact an account of John Sunol, and begins:
EXCLUSIVE: Tribunal hearing on jurisdiction [Kerslake ACT v Sunol NSW] 2 Nov 2020, ACAT Canberra. Suppression orders. ACT Human Rights Commission & ACAT seek nationwide social media jurisdiction. Conspiracy. LGBT case law by stealth. @NicBerko @ACLobby @LyleShelton @Real Mark Latham
There is also a comment by Marina Lyon which states:
This case could turn out to be quite big but I can not give in as this could go to set a very dangerous legal precedent; It is not only my enemy but also the enemy of All Christian and conservative family people world wide I am fighting: The LGBT-SJW political activist from the homosexual rights lobby I am fighting Not the Average homosexual person or family member.
The other posts are in similar terms.
I do not think these posts breach the confidentiality order. As noted, I do not think that to refer to the proceedings or what they are about is a breach of the order. The posts also make some comments about the proceedings and set out the author’s views about the proceedings and the person who brings them. Like many of the posts at issue in these proceedings, these may be offensive to Mr Kerslake, but I do not think they breach the confidentiality order. Therefore, I do not think that any order can be made by the Tribunal in relation to these posts.
Subpoena costs issues
As noted above, Mr Swift has applied for his costs of complying with a subpoena. The subpoena seems to have been issued in proceedings DT 35/2020 and was numbered DT 35/2020(b).
Orders were made by the tribunal which enabled Mr Swift and the parties to put forward evidence and submissions in relation to this matter. The applicant put forward a document dated 10 August 2022. The respondent provided a document dated 11 September 2022 (respondent’s submissions on subpoena costs). Mr Swift provided a document and an affidavit dated 26 September 2022.
In summary, the facts were that on about 8 February 2021, Mr Balzola, on behalf of Mr Sunol, applied for a subpoena to be issued to Rod Swift for him to provide documents and attend the hearing. That subpoena was issued. It was served on Mr Swift, and it appears he was given $20 conduct money. That subpoena was challenged at a hearing on 23 February 2021, and orders were made which narrowed the subpoena.
Mr Swift complied with the subpoena as narrowed. He produced a range of documents. He personally attended the hearings on 17 March 2021 and 11 May 2021 in Canberra. He had to travel from Victoria to do so. It was clear to the respondent that Mr Swift lived in Victoria since the subpoena was addressed to him and was served on him there.
Mr Swift made a claim for the costs of complying with the subpoena. He is able to do so under section 80 of the ACT Civil and Administrative Tribunal Procedure Rules 2020 which provides that the tribunal may order the issuing party to pay the addressee’s reasonable costs and expenses in complying with the subpoena.
His original claim included an amount for lost wages. He has since removed that amount. The remaining claim is itemised and contains an amount for reasonable expenses to prepare the documents ($1,086), for travel to the tribunal for the hearings on 17-18 March and 11-14 May 2021, and for accommodation in Canberra ($1,083). He also asks for costs for submission of the documents on USB drives, including postage ($51). The $20 provided is deducted. The amount now claimed is $2,200.[76]
[76] Affidavit of Rodney Swift affirmed 26 September 2022, page 6, as adjusted to remove lost wages
Mr Swift sought his costs by email to Mr Balzola which he says was not responded to. He then lodged an application for interim and other orders on 11 May 2021, supported by documentation. He says that in a discussion on 11 May 2021 there was an agreement reached with Mr Balzola that his claim would be paid less reimbursement for lost wages. The transcript of proceedings on 11 May 2021 records Mr Balzola as stating: “Mr Swift’s very frugal in his costs, with one exception that he seeks recovery of unpaid salaries… With that exception, we do not oppose his bills. We’re agreeing with the conduct money”.
Mr Balzola for Mr Sunol wrote to Mr Swift on 11 November 2021 and offered to pay $1,199.30. It is said that there has been no response to that offer.[77]
[77] Affidavit of Robert Balzola sworn 11 September 2022, annexure C; respondent’s submissions on subpoena costs at [99]
Rod Swift says he has not been paid. He also states that Mr Sunol has posted online on a number of occasions that he will not pay Mr Swift.
In his respondent’s submissions on subpoena costs of 11 September 2022, Mr Sunol seems to oppose making this payment. He raises a range of issues. He says Mr Kerslake was supported by a “sophisticated litigant”, David Bottrill. It is alleged that Mr Bottrill was the person who at the hearing on 17 March 2021 said he was at the hearing “as a support person” for Mr Kerslake. It is said that the Tribunal “erred in permitting Mr Bottrill to be an amicus curiae” or “authorised representative”, or that “the permission of Mr Bottrill at the hearing is void having no part or right to participate as an amicus curiae or otherwise”.[78]
[78] Respondent’s submissions on subpoena costs at [36], [38]
It is clear, assuming the person who spoke was Mr Bottrill, that he was not in any formal sense an amicus curiae or authorised person. The Tribunal made no orders to this effect. He said he attended only as a support person to Mr Kerslake. He had every right to do so. The hearing was held in public, and anyone could attend the hearing, whether to assist Mr Kerslake or otherwise, subject to COVID-19 restrictions and the confidentiality order made by the Tribunal. This is discussed in the first decision at paragraph [22]. At any rate, Mr Sunol has not indicated how it is said Mr Bottrill participated in any way in the hearing. I can find no document, statement or evidence by him. He simply said why he was at the hearing. At any rate, I do not see how this is relevant to the costs of the subpoena issues.
It is said Mr Bottrill has used materials from this hearing in breach of the confidentiality order. But no evidence is provided of this, and at any rate I do not see how it is relevant to the costs of the subpoena issue.
The respondent argues that the applicant’s submissions on this issue are defective. It is clear these submissions simply provide information and support for Mr Swift’s requests for his costs. I do not see any basis for the respondent’s submission that they are defective in some way. The Tribunal has allowed the applicant, respondent and Mr Swift to make submissions on the issue, and has taken these into account insofar as they are relevant to reach the conclusion noted below.
The respondent raises in this context some of the issues noted above at paragraphs [41]-[62], namely that there were a large number of complaints, which took some time to hear and decide and the respondent was successful on many of them. This is correct, but I do not see the relevance of this to the issues of the subpoena costs. It is also said that the complaints were prolix, convoluted and imprecise, a submission I reject, but even if true, I do not see the relevance to this issue. It is noted that Mr Swift put on an affidavit in the proceedings in support of the applicant, which is correct. This occurred after the subpoena was issued. I do not see how this is relevant to the issue of costs in responding to the subpoena. It appears that the subpoena was issued to Mr Swift because he was a colleague and ally of Mr Kerslake, so I do not see this can now be put as a reason for not paying his costs.
It is said that the “evidentiary basis of the Producing Party” that is Mr Swift, “is tenuous”. This seems to be referring to Mr Swift’s affidavit evidence, but it may also refer to the documents he produced. I do not see how this is relevant to the application for costs. Mr Swift was issued a subpoena, he complied; it is not a basis for refusing to pay costs in relation to a subpoena that the material obtained is tenuous to the case of the party who asked for the subpoena to be issued.
The respondent refers to his offer of 11 November 2021. He says there was no response. As referred to in this offer, he continues to assert that the amount of 30 hours preparation time is unreasonable, particularly given the reduction in the materials conceded in the tribunal which greatly narrowed the relevant materials.[79] Mr Swift sought 30 hours preparation, Mr Balzola offered to pay for three hours. It seems that Mr Sunol takes the position that his offer has lapsed.[80]
[79] Respondent’s submissions on subpoena costs at [96]-[105]
[80] Respondent’s submissions on subpoena costs at [109], [110]
The respondent’s submission is that this situation shows a collateral purpose of extracting greater money than is fair and reasonable and to elongate the hearings, not enter into good faith negotiations, misrepresent facts, adds to costs, and attack and embarrass the respondent. I note that there is no obligation on Mr Swift to accept the offer. I agree he should have directly responded to the offer in some way.
Mr Sunol states that his offer was fair and reasonable. However, in light of Mr Swift’s conduct he now disputes the claim in its entirety. This is on the basis of the “costs due to the time and further expense the Producing Party has wasted”, and also their disentitling conduct, said to be “their dishonesty in not presenting their facts in a complete and forthright way, and with their demonstrated intent to embarrass the respondent and his lawyer”.
I do not think that Mr Swift has been disentitled from making his claim by his conduct. As noted, he has no obligation to accept the offer made. On this basis Mr Swift is able to pursue his claim.
Mr Sunol does not put forward any convincing basis to dispute the details of the claims of incurred travel and accommodation costs for $1,083, and of the USBs and postage for $51. He disputes the claim of 30 hours to prepare the documents for $1,086. He suggested in his offer three hours, that is $108. It is true that the Tribunal significantly reduced the documents sought by the subpoena. There were still a significant number of documents sought and provided. I will allow ten hours to prepare those documents as reasonable in the circumstances, that is $360. The $20 provided is deducted.
The Tribunal will make an order that Mr Sunol pay to Mr Swift an amount of $1,474.
Costs
Section 48(1) of the ACAT Act provides that the parties to an application must bear their own costs unless the Act or another territory law otherwise provides or the tribunal otherwise orders. There are no laws which provide otherwise other than section 48(2). This provides three possibly relevant circumstances for an order:
(a)if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant some fees;
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction; or
(c)if a party to the application contravenes an order of the tribunal.
The applicant makes no application for costs. The respondent’s second remedies submission seems to assume that the applicant does, but he does not, so the submissions made on this basis are irrelevant. As noted above, I have assumed that these submissions are also directed at the remedies which the applicant does seek.
The respondent makes no formal application for costs. The respondent’s second remedies submission suggests that such an application is made. It is possible the respondent takes the view that these submissions are his application. He seeks costs be paid:
(a)by the applicant to the respondent on an indemnity basis;
(b)in the alternative costs be paid by the applicant to the respondent on an ordinary basis; or
(c)in the alternative that the applicant be awarded 11% of costs in the cause (which I assume means 11% of the applicant’s costs), and the respondent 89% of the costs in the cause (which I assume means of the respondent’s costs), these figures flowing it seems from the respondents submissions set out at paragraph [41] above.
Assuming these submissions amount to an application for costs it is not clear which category in section 48(2) they fall within. It cannot be (a), which concerns only the costs of the applicant. The applicant himself makes no such claim. It cannot be (c), since only the applicant makes allegations of a breach of orders. It may be (b), but this requires the respondent to specify the unreasonable delay or obstruction and provide a justification for a costs order on this basis. There is no such specification or attempt at justification. An outline of the proceedings is set out in the first decision at [14]-[41]. An outline of the proceedings considered in this decision is set out above at paragraphs [20]-[34]. On the basis of these outlines, and my knowledge of the proceedings, I do not think that the applicant caused unreasonable delay or obstruction.
Therefore, I cannot make any orders as to costs, and no orders are made. This is made clear in order 6 in DT 35/2020, order 2 in DT 42/2020, order 2 in DT 43/2020, and order 5 in DT 45/2020.
………………………………..
Senior Member R Orr KC
| Date(s) of hearing: | On the papers |
| Applicant: | Self-represented |
| Solicitors for the Respondent: | Robert Balzola, Robert Balzola and Associates |
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