Burns v Folau

[2020] NSWCATAD 287

NCAT Administrative and Equal Opportunity|2020-09-01

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-09-01

Catchwords

[2006] HCA 27 Burns v Corbett
Burns v Gaynor
Attorney General for New South Wales v Burns
Attorney General for New South Wales v Burns (No 2)

Source

Original judgment source is linked above.

Catchwords

[2006] HCA 27 Burns v CorbettBurns v GaynorAttorney General for New South Wales v BurnsAttorney General for New South Wales v Burns (No 2)

Judgment (23 paragraphs)

[1]

REASONS FOR DECISION

In 2019, former Wallaby, Mr Israel Folau, generated significant public controversy by making several comments said to vilify members of the LGBTI community.
In August 2019, Rugby Australia decided to terminate its contract of employment with Mr Folau on the grounds that he had failed to comply with its Players' Code of Conduct, including "respectful use of social media". Mr Folau commenced legal proceedings against Rugby Australia. On 4 December 2019, the parties reached agreement and issued a public statement, which is set out at [26] below.
On 2 December 2019, Mr Garry Burns lodged a complaint (the Complaint) with the President of the Anti-Discrimination Board (respectively, "the President" and "the Board"), alleging that Mr Folau had vilified homosexual people by posting comments on Instagram and Twitter and in a sermon delivered to the congregation of the Truth of Jesus Christ Church, Kenthurst, NSW.
Mr Burns contended that Mr Folau's comments incited hatred toward and contempt for homosexual people by encouraging that they be shunned and by portraying homosexuality as "sick, perverted or dirty". In addition, Mr Burns contended that Mr Folau's comments sought to link homosexuality and same sex marriage with drought and bushfires.

[2]

Statutory framework and principles governing the grant of leave

A person may make a complaint to the President on their own behalf as well as on behalf of another person, alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
A vilification complaint cannot be made unless each person on whose behalf the complaint is made has the characteristic that was the ground for the conduct that constitutes the alleged contravention or claims to have that characteristic and there is no sufficient reason to doubt that claim: s 88.
Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. The President may decline the complaint or part of the complaint, if, at any stage of the investigation the President is satisfied that the complaint is vexatious, among other things: s 92(1)(a)(i).
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

[5]

Meaning of "vexatious"

In Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5, an Appeal Panel of the ADT considered the meaning of the word vexatious in the now-repealed s 111 of the Act, which gave the Tribunal the power to dismiss a Complaint on the ground that it is "frivolous, vexatious, misconceived or lacking in substance". The Appeal Panel noted at [31] that the word "vexatious" can relate to the objective character of the complaint, where for example the complaint has no foundation, and, in addition, to the subjective character of the complaint. The Appeal Panel pointed out that the motives of the complainant may be relevant in determining whether a complaint is vexatious, referring to the oft-cited explanation given by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 that proceedings will be vexatious if: "1. [T]hey are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. [T]hey are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. [I]rrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."
Proceedings might constitute an abuse of process if they are brought for an improper purpose: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 at [14]-[15] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ). The High Court referred at [14] to the explanation given in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 74-75, by Gaudron J: Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'. (Citations omitted)

[6]

The comments the subject of the Complaint

The conduct the subject of the Complaint consists of three sets of comments made in 2019 by Mr Folau on social media and in a sermon (collectively "the Comments").
The first comment was in the form of a meme posted on Instagram on 10 April 2019:
The second comment was posted later that day on Twitter:
The third comment was contained in a sermon delivered by Mr Folau to the congregation of the Truth of Jesus Christ Church on 17 November 2019. The Church posted the transcript of the sermon on its Facebook page. The following is an extract from that transcript: The message that I want to speak about today is mainly for the people that are outside within the world. I've been looking around at the events that's been happening in Australia this past couple of weeks, ah with all the natural disasters; the bush fires; the droughts and all these things that are currently happening. … I just want to say the events that's happening here in Australia, just in the last couple of years. God's Word says for a man and a woman to be together; one man and one woman in the covenant of marriage to be together. Now the world, and speaking to Australia, right now. They come and changed this law. So they changed the law, they changed the ordinance. They've changed that law, and now have legalised same-sex marriage. Now those things are okay in society; going against the laws of what God says. Abortion, it's okay now to murder and kill infants; unborn children - and they deem that to be okay. This here, this scripture here is talking to Australia, which is what God's speaking to those that are listening, that they may open their hearts to receive this. You have changed the law and ordinance of these things. Look at how rapid these bush fires, these droughts, all these things they've come in a short period of time. Do you think it's a coincidence or not? God is speaking you guys, Australia, you need to repent, turn, take these laws and turn it back into following what is right by God, what God says in His word. It's says "therefore hath the curse devoured the earth, and they that dwell therein are desolate: therefore the inhabitants of the earth are burned, and few men left." What you see right now out in the world, it's only a little taste of what God's judgement's comin'. It's not even a big thing and now the news are saying that these bush fires are the worst they've ever seen in Australia. The worst. They haven't even seen anything; we look back at what God done to Sodom and Gomorrah, and rained fire and brimstone from heaven and destroyed that city because of the sin that they were living in. God is speaking to us. Speaking to you; those that are able to listen, to repent and to turn away from their sins. As a Christian in society today, the world will look at you, and look at something different, if you speak the truth, they will try and shut you out. Exactly what's happened today. If you turn to Isaiah chapter 5 verses 20, "Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter!" Exactly what's happening right now: same-sex marriage, in the eyes of God it's evil. In society today, it's good. Abortion, in the eyes of God it's evil, in society today, it's good. To be a Christian and stand up for the truth seems like it's a criminal act, compared to people who go out and do drugs, sexual assault, go and murder, the world will accept you, accept you right back in. As soon as you stand up, and stand for the truth, and proclaim the truth, they will try and shut you out. Don't let that, any of that stuff hold you back from speaking the truth, we must be bold to continue to stand up and share the truth.

[16]

Submissions

Mr Folau submits that the Tribunal should decline to exercise the discretion to grant leave for the Complaint to proceed for the following reasons.
First, the prospects of Mr Burns establishing the Complaint are poor.
Second, Mr Burns has engaged in threatening, abusive and other harmful conduct directed towards Mr Folau and his legal representatives. While Mr Burns seeks to now resile from that conduct on the basis that he is not seeking a monetary settlement, he was not acting for collateral purposes and his conduct was caused by a medical condition, Mr Burns' ex post facto rationalisations for his conduct should not be accepted.
Third, given that Mr Burns now claims that he no longer seeks damages, the sole purpose of the proposed proceedings is to seek an apology for homosexual people. Mr Folau points out that the joint public statement with Rugby Australia, which was issued after the making of the Comments, contains a statement of apology to the public at large, and states that he does not "condone discrimination of any kind against any person on the ground of their sexuality".
Mr Burns urges the Tribunal to grant leave for the Complaint to proceed for the following reasons.
First, Mr Burns acknowledges that throughout the period the Board was investigating the Complaint (2 December 2019 to 15 April 2020), his conduct was "regrettable" but contends it was the result of him being unwell. He claims his response was triggered by the Solicitor's dismissive treatment of the Complaint.
Second, pointing out that the President did not decline the Complaint on the ground that it lacked substance, Mr Burns contends that it would amount to a "practical injustice" to decline a complaint that was arguable.
Third, if the Tribunal were to deny him the right to a "hearing on the merits", it would send a "pernicious message" to minority groups: [T]hat the Complainant who was unwell while his complaint was before the "board' under investigation and while he or she was unwell had conducted themselves in a manner that was deemed "vexatious" is punished by the Tribunal by refusing to grant leave.
Fourth, the only remedy he now seeks is an apology.
Finally, to refuse to grant leave would offend the principles of the Act.

[20]

Was Mr Burns' conduct the result of a medical condition?

In support of his claim that he was unwell throughout the period during which the Complaint was under investigation by the Board, Mr Burns relies on two psychological reports. At Mr Burns' request in these reasons, I will limit the discussion of the details of those reports.
In a report dated 19 December 2013, a psychologist, who had seen Mr Burns on two occasions for treatment of anxiety and depression, wrote that Mr Burns had made a "full recovery" from a psychological condition but was suffering from stress and anxiety.
In a report dated 27 July 2020, a psychologist recorded that Mr Burns was deeply distressed when he presented for treatment in early July 2020 as a consequence of being required to pay significant legal fees, apparently arising out of the High Court decision handed down in April 2018: Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns (No 2); New South Wales v Burns [2018] HCA 15. The psychologist does not refer to the state of Mr Burns' mental health during the investigation period. Nor does he state that Mr Burns' condition caused him to act irrationally or out of character.
At the hearing of the leave application, I invited Mr Burns to provide further evidence about the state of his health during the period the Complaint was under investigation. He provided supplementary submissions in support of the leave application but no further material about his state of health.
The 27 July 2020 psychological report is not inconsistent with Mr Burns' claim that he was anxious throughout the investigation of the Complaint. Nonetheless, of itself or taken together with the available material, it is insufficient to support Mr Burns' claim that his conduct, specifically his interaction with Mr Folau, the Solicitor and the Board throughout the period the Complaint was under investigation, in part or whole, was the result of him suffering anxiety or some other medical condition.

[21]

Consideration

In exercising the discretion to grant or to refuse leave for the Complaint to proceed I must be guided by the consideration that the refusal of leave will finally determine Mr Burns' rights: Jones at [57]; Ekermawi at [32]. I must also consider whether it is "fair and just" to grant or refuse leave in the particular circumstances of this case, having regard to the interest of both parties.
I do not share the confidence expressed by each party that if the Complaint were referred to the Tribunal for determination, it is a fait accompli that it would be found to be substantiated/not substantiated.
I reject Mr Folau's submission that because Mr Burns has announced that the only remedy he now seeks is an apology, there would be no utility in permitting the Complaint to proceed given the issue of the joint statement with Rugby Australia. First, assuming that the Complaint was found to be substantiated that statement, while relevant to, is not determinative of whether the power to order Mr Folau to issue a further apology should be exercised under s 108 of the Act. Notably, the joint statement does not address whether the Comments amounted to unlawful vilification. In addition, as Mr Burns contends, arguably a public adjudication would promote the objects of the Act set out in the long title to the Act "to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons".
I accept that obtaining a monetary settlement from Mr Folau was probably not the sole reason Mr Burns made the Complaint to the Board. I also accept that Mr Burns holds the genuine belief that the Comments amounted to unlawful vilification under the Act. Nonetheless, the inescapable conclusion is 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.
I reject Mr Burns' claim that he played no role in the GoFundMe campaign. There is no evidence that he did not approve of or sought to distance himself from that campaign. Indeed, the media release issued by Mr Burns on the day the Board accepted the Complaint, indicates that he endorsed and promoted that campaign.
Of concern, as I have noted, is Mr Burns' conduct throughout the Board's investigation of the Complaint. This was not a case of an occasional inappropriate comment or outburst by a self-represented complainant but of repeated and persistent conduct that, objectively assessed, amounted to abuse and harassment. It would not be reasonable to expect a self-represented party to comply with the standards of conduct that apply to Australian legal practitioners, nor to assess their conduct by reference to those standards. Nonetheless, this does not mean that their conduct can never amount to an abuse of process. Notably, Mr Burns was not a novice complainant. He has significant experience in the conduct of legal proceedings and is familiar with the standards of conduct expected of parties in dealing with each other and the Board.
There is, undoubtedly, a discretion to grant leave for a complaint to proceed even where the President is satisfied that it is vexatious and has decided to exercise the discretion to dismiss the complaint. In my view, given the egregious nature of Mr Burns' conduct it would not be in the interests of justice to permit the Complaint to proceed, notwithstanding my view as stated above that the Complaint is arguable.

Burns v Folau

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Judgment (23 paragraphs)

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