Sunol v Kerslake (Appeal)

Case [2024] ACAT 35

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SUNOL v KERSLAKE (Appeal) [2024] ACAT 35

AA 10/2023 (DT 35/2020 & DT 45/2020)

Catchwords:               APPEAL – discrimination – appeal against findings of vilification based on respondent’s homosexuality – vilification by social media posts – alleged error by considering all 204 social media posts the subject of complaint after requesting respondent identify sample complaints – alleged error by relying on transcripts rather than listening to and viewing posts – alleged error in finding jurisdiction where the posts were downloaded in the ACT but uploaded in NSW – alleged error in finding jurisdiction where Human Rights Commission had not considered and decided the complaints on their merits – alleged error by not considering the respondent as an ordinary member of the public – alleged error by not taking into account appellant’s evidence he does not hate the respondent – alleged error by rejecting appellant’s defence that his posts about homosexuality were in the public interest and therefore not vilification – alleged error by awarding compensation, notwithstanding appellant’s brain injury – alleged error in tribunal consideration that 4 of the 14 offending posts had been removed – alleged error in tribunal consideration of the respondent’s victimisation of the appellant – alleged error in hearing the application where the appellant is a citizen of NSW - alleged error in tribunal consideration of the principles in Burns v Corbett – alleged error by awarding compensation in the absence of medical evidence of loss or damage – alleged error in failing to take into account appellant’s Christian beliefs – alleged error by failing to have regard to appellant’s right of freedom of expression and political communication – alleged failure in finding respondent was an aggrieved person – alleged failure in finding appellant’s posts were in relation to homosexual persons rather than the homosexual agenda – alleged failure in finding appellant made insulting comments on respondent’s site – alleged failure in finding vilification publications existed at the time of respondent’s complaints – alleged exercise of power for a purpose other than the purpose for which the power was conferred and/or exercising power unreasonably – no error found – appeal dismissed

Legislation cited:        Anti-Discrimination Act 1977 (NSW) ss 49ZS, 49ZT

Constitution ss 75, 76
Discrimination Act 1991 ss 67, 68
Discrimination Amendment Act 2016 (repealed) s 41
Human Rights Commission Act 2005 ss 42, 43, 44, 45, 47, 53, 71, 88
Racial Discrimination Act 1975 (Cth)
Religious Tolerance Act 1977 (NSW) s 8
Judiciary Act 1903 (Cth) s 39

Cases cited:Bottrill v Sunol & Anor [2017] ACAT 81

Briginshaw v Briginshaw [1938] HCA 34
Burns v Corbett [2018] HCA 15
Burns v Corbett; Gaynor v Burns [2017] NSWCA 3
Burns v Gaynor [2015] NSWCATAD 211
Burns v Folau [2020] NSWCATAD 287
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Corbett v Burns [2014] NSWCATAP 42
Dow Jones & Company Inc v Gutnick [2002] HCA 18
Farah…

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AGLC
Sunol v Kerslake (Appeal) [2024] ACAT 35
Case
[2024] ACAT 35
Decision Date

CaseChat Overview and Summary

Sunol v Kerslake (Appeal) involved an appeal against the orders made in proceedings DT 35/2020 and DT 45/2020 by the appellant, Sunol, against the respondent, Kerslake. The appeal centred on the Tribunal's handling of complaints of vilification, and the remedies ordered in response. The tribunal had already dealt with the complaints in two decisions, with the first addressing liability and the second dealing with the remedy.

The appeal raised 29 grounds, the primary concerns of which were about procedural fairness. The appellant alleged the Original Tribunal erred by not permitting him to cross-examine Kerslake and by not allowing him to address all the complaints made by Kerslake. The tribunal dismissed the first ground, finding that the appellant had agreed to no cross-examination during the original hearing. On the second ground, the tribunal found that the appellant's written submissions in the original proceedings made it clear that all complaints needed to be addressed, and that the appellant had not been given an opportunity to address the balance of the complaints orally was unpersuasive. The tribunal further noted that the appellant's counsel at the appeal hearing confirmed that the written submissions addressed everything in detail.

The tribunal dismissed the appeal in its entirety. It ordered that the appellant comply with certain orders within specified timeframes. These orders related to the original proceedings DT 35/2020 and DT 45/2020, with the appellant required to comply with some orders within 14 days and others within 28 days.

Orders

Orders of the court

The Tribunal orders that:

1.

The appeal is dismissed.

2.

In proceeding DT 35/2020, the appellant comply with orders 1 and 3 within 14 days and with orders 4 and 5 within 28 days.

3.

In proceeding DT 45/2020, the appellant comply with orders 1 and 3 within 14 days and with order 4 within 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Original Tribunal dealt with the complaints by means of two published decisions. The first, Kerslake v Sunol [2022] ACAT 40, dealt with liability (the liability decision). The second, Kerslake v Sunol [2023] ACAT 18, dealt with remedy consequent upon the findings of vilification in proceedings DT 35/2020 and DT 45/2020 (the remedy decision). The appellant appealed against the orders made in proceedings DT 35/2020 and DT 45/2020. The appellant appealed on 29 grounds, which we deal with in turn. The appellant alleged the Original Tribunal erred by failing to permit him to cross‑examine the respondent, Mr Kerslake. In response to this ground, we drew to the appellant’s attention that during the hearing before the Original Tribunal on 11 May 2021 discussion occurred regarding a proposal for no cross‑examination by either side following which the appellant agreed “to accede [to] that course”.[4][4] Transcript of original proceeding 11 May 2021, page 80, line 23 At the appeal hearing, the appellant commented on the context in which he agreed there be no cross-examination but no longer pressed ground 1.[5] We have therefore not considered it further. The appellant submitted ground 2 goes to “an issue of natural justice”.[6] The appellant began by noting the Original Tribunal ordered the respondent to provide a “focused list” of publications that were the subject of the complaints. In response, the respondent provided a list of 13 publications from the 204 publications that made up the complaints in the four proceedings.[6] Transcript of proceeding 13 November 2023, page 4, line 18 The appellant alleged the complaints, excluding the 13 publications provided, “were not considered in Hearing”[7] yet the Original Tribunal then proceeded “to adjudicate on all of them”.[8][7] Written submissions dated 20 October 2023 at [16][8] Written submissions dated 20 October 2023 at [32] The appellant submitted it was not understood “that having dealt with the sample complaints, that it was then necessary to go back and extrapolate and deal with the rest of the complaints”.[9] In reply, we pointed out that the appellant’s written submissions in the original proceedings make it apparent the appellant (and everyone else) understood all of the complaints needed to be dealt with. In his written submissions, the appellant stated:It is now appropriate to go through each of the 13 examples and then the balance of the 179 URLs.[10][9] Transcript of proceeding 13 November 2023, page 66, lines 4-6[10] Written submissions dated 21 June 2021 at [52] In response, the appellant submitted he was not given an opportunity to address the balance of the complaints orally at the original hearing, and this was procedurally unfair.[11][11] Transcript of proceeding 13 November 2023, page 66, lines 24-35 The submission was unpersuasive. At the appeal hearing, counsel for the appellant stated his understanding “the written submissions addressed everything in detail”.[12] He said he would check overnight that his understanding was correct before the hearing resumed the following day, but he did not return to the issue.[12] Transcript of proceeding 13 November 2023, page 66, lines 36-37

Ratio Decidendi

Legal Principle Established

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