Burns v Sunol

Court of Appeal (NSW)|2012-06-27

ntrolled by him the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision. Catchwords: Homosexual vilification - victimisation - remedies Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Racial Discrimination Act 1975 (Cth) Cases Cited: Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42 Burns v Dye [2002] NSWADT 32 Burns v Laws (No 2) [2007] NSWADT 47 Carter v Brown [2010] NSWADT 109 Chand v Rail Corp [2011] NSWCA 79 Cohen v Harguos; Karelicki v Harguos [2006] NSWADT 209 Cohen & anor v Harguos; Karelicki v Harguos (No 2) [2006] NSWADT 275 Collier v Sunol [2005] NSWADT 261 Collier v Sunol [2008] NSWADT 339 Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22 Jones v Toben [2002] FCA 1150 Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 Kimble & Souris v Orr [2003] NSWADT 49 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sunol v Collier (EOD) [2006] NSWADTAP 51 Sunol v Collier (No 2) [2012] NSWCA 44 Trad v Jones (No 3) [2009] NSWADT 318 Veloskey v Karagiannis (EOD) [2002] NSWADTAP 18 Category: Principal judgment Parties: Gary Burns (Applicant) John Christopher Sunol (Respondent) Representation: G Burns (In person - Applicant) J Sunol (In person - Respondent) File Number(s): 111024, 111043, 111120, 121023

Relevant law 8The provisions of the Act making homosexual vilification unlawful in certain circumstances are sections 49ZS and 49ZT. At all relevant times, these were in the following terms:- 49ZS Definition In this Division: public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. 49ZT Homosexual vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 9Reference should also be made to sections 88 and 104, which state as follows:- 88 Vilification complaints A vilification complaint cannot be made unless each person on whose behalf the complaint is made: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim. 104 Proof of exceptions Where by any provision of this Act or the regulations conduct is excepted from conduct that unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent. 10We will now discuss the questions of interpretation that require attention in this decision. They chiefly arise under section 49ZT(1). 11In Sunol v Collier (No 2) [2012] NSWCA 44, the Court of Appeal gave careful consideration to the interpretation of section 49ZT, in the course of making a determination that the section was not rendered invalid, wholly or in part, by the implied constitutional freedom of political communication. We will reproduce the passages in their Honours' judgments that are of most significance for these proceedings. 12At [25 - 34] and [41], Bathurst CJ said:- 25 The first step in considering the question of whether s 49ZT infringes the implied constitutional freedom is the construction of the provision itself: Coleman v Power supra at [3], [147]-[158]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [11]. 26 I have set out the section above. The first question raised is what is meant by the word "incite". The meaning of the word has been considered both in the context of anti-discrimination legislation and in the context of criminal offences involving incitement. In Young v Cassells (1914) 33 NZLR 852, a case concerning the charge of inciting persons to resist constables, Stout CJ described the word as meaning "to rouse, to stimulate, to urge, to spur on, to stir up, to animate" (at 854). In R v Massie [1998] VSCA 82; [1999] 1 VR 542, Brooking JA, with whom Winneke P and Batt JA agreed, said at 555 that the word covered words which command, request, propose, advise or encourage. In R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390, Smart AJ (at [59]) cited what was said by both Stout CJ and Brooking JA with approval. 27 The word has received a similar construction in the context of anti-discrimination legislation: Catch the Fire Ministries supra [Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207] at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102]. 28 Although it is clear from this review of the authorities that the word "incite" can cover a wide variety of conduct, it must be borne in mind that it is not sufficient to attract the operation of s 49ZT that the words simply express hatred, serious contempt for, or severe ridicule of a person on the grounds of homosexuality; the relevant public act must be one which could encourage or spur others to harbour such emotions: Burns v Dye supra at [20]; Burns v Laws (No 2) supra at [113]. 29 It is also well established, both in the area of criminal law and in the context of anti-discrimination legislation, that it is not necessary for a person in fact to be incited by the words or publication: R v Eade supra at [60]; R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62; Veloskey v Karagiannakis supra at [25]; Catch the Fire Ministries Inc supra at [14]. 30 The next issue is whether an intention to incite is required for a contravention of s 49ZT. The Tribunal has consistently held that intention is not an element of a contravention of this or related sections: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. 31 Neither party at the hearing suggested that that approach was incorrect. I am prepared to proceed on this basis without finally deciding the issue. It is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments: "However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, 'to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status'. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations." (at 359) Deane J agreeing at 382; but see McHugh J at 401. 32 The next issue of construction raised by the section is whether the public act required for a contravention of s 49ZT is one which would incite hatred, serious contempt for or severe ridicule in an "ordinary reasonable reader" or in a reasonable member, or an ordinary member, of the class to which the public act was directed. The first of the three alternatives is the one which has been consistently adopted by the Tribunal, following the test set out by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that "the ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs": John Fairfax Publications Pty Ltd v Kazak supra at [13]-[14]; Veloskey v Karagiannakis supra at [26]; Burns v Cunningham supra at [69]. 33 A different approach to the question was taken by the Court of Appeal of Victoria in Catch the Fire Ministries Inc supra. In that case Nettle JA took the view that for conduct to incite hatred it must reach a relevant audience. In those circumstances he said the question is to be answered having regard to the effect of the conduct on a reasonable member of the class of persons to whom it is directed (at [16]-[18]). Ashley JA and Neave JA on the other hand suggested the question should be decided by reference to an ordinary member of the class rather than a reasonable member (at [132], [157]-[158]). 34 I prefer the view of Ashley and Neave JJA. This is because the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals. That, of my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation. 41 In these circumstances, s 49ZT should be construed as follows: (a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement. (b) It is not necessary for a contravention that a person actually be incited. (c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. (d) It is not necessary to establish an intention to incite.... 13Allsop P said (at [57 - 62]): 57 The secondary material being the second reading speech of Clover Moore MP for the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (Legislative Assembly, 11 March 1993) and the report of the New South Wales Anti-Discrimination Board entitled "Discrimination and Homosexuality" published in 1982 identified the subject matter and mischief to which Pt 4C [in which section 49ZT is located] was directed. This subject matter included the way homosexuals were from time to time vilified in public, which was seen as capable of creating the conditions for violence against homosexual men and women. Violence was more directly addressed by s 49ZTA, but the incitement of hatred, serious contempt or severe ridicule can be seen to create the conditions for violent behaviour. 58 The secondary material also demonstrates a keen awareness of the effect of a provision such as s 49ZT on freedom of speech and of the need to balance such freedom with the desired aim of the legislation - to make unlawful public acts which incite the emotions and conditions to which I have referred. That attempted balance can be seen from the text employed by Parliament in subsections (1) and (2). 59 Thus, one comes to the task of construing s 49ZT recognising the high value that the common law (and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that restrict it. This approach is reinforced by the recognition of the limitation on Commonwealth, State and Territory legislative power by the implied Constitutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[45] and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton v The Queen [2012] HCA 2 at [32]. 60 The text of s 49ZT reflects an attempt by Parliament to weigh the policies of preventing vilification and permitting appropriate avenues of free speech. Subsections (1) and (2) should be read together as a coherent provision that makes certain public acts unlawful. Subsection (2) is not a defence; it is a provision which assists in the defining of what is unlawful. It attempts to ensure that certain conduct is not rendered unlawful by the operation of subsection (1). 61 Subject to the following comments, I agree with the Chief Justice as to the construction of subsection (1). The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider. 62 Further, satisfaction of s 49ZT(1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience 14At [79], Basten JA said:- 79 Applying this approach, I agree with the construction of s 49ZT of the Anti-Discrimination Act 1977 (NSW) outlined by Bathurst CJ. The critical aspect of s 49ZT for present purposes is the requirement that to be unlawful the conduct must incite "hatred towards, serious contempt for, or severe ridicule of" persons within the protected class. Mere insults, invective or abuse will not engage the prohibition. 15A somewhat different approach to the term 'incite' was taken in a Tribunal decision, Burns v Laws (No 2) [2007] NSWADT 47, to which the Chief Justice referred. At [110 - 112], the Tribunal said:- 110 The second qualification [to the principles stated in previous Tribunal decisions on section 49ZT(1)] relates to the Tribunal's use of the terms 'capacity' and 'capable'. We agree with Mr Reynolds [counsel for the respondent] that these terms have the potential to understate what must be proved. In defamation law, they bear upon what is in essence a threshold question only. An allegedly defamatory imputation is judicially determined to be 'capable of defaming' the person to whom it refers if there are sufficient grounds to warrant referring to a jury the quite distinct question of whether it actually did defame this person. 111 In our opinion, the issue to be resolved under s. 49ZT(1) is better framed as follows: would the relevant 'public act' have had the 'effect' of inciting, in the sense of urging or prompting, a hypothetical 'ordinary reasonable person' to experience one or more of the relevant reactions towards one or more homosexual people (as identified by the complainant), on the ground of their homosexuality? If terms such as 'capacity' or 'tendency' (this word appears in Neave JA's judgment in Catch the Fire Ministries at [161]) are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or possible effect. [112] This point is important if, as previous authorities have made clear, the term 'incite' is to be interpreted as meaning merely 'urge', not 'successfully urge' or 'induce'. A test that required no more than proof that the relevant public act had the potential or possible effect of urging an ordinary reasonable person to experience one or more of the relevant reactions would in our view be unduly broad. 16The Tribunal's reference here to the reactions of an 'ordinary reasonable person' must now be considered incorrect in the light of the different pronouncements on this question by Bathurst CJ (with the concurrence of Basten JA) and Allsop P in Sunol v Collier (No 2). But the Tribunal's observations as to the potential ambiguity of the terms 'capable' and 'capacity' in this particular context should, we think, be borne in mind. 17In Burns v Dye [2002] NSWADT 32 at [21], the Tribunal, in a frequently cited passage relating to section 49ZT, said:- 23 The third element the complainant must establish is that the public act must be capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons. These words are to be given their ordinary dictionary meaning. Kazak v John Fairfax Publications Limited [at 40] set out the following definitions: "hatred" means "intense dislike; detestation" (Macquarie), "a feeling of hostility or strong aversion towards a person or thing; active and violent dislike" (Oxford); "serious" means "important, grave" (Oxford); "weighty, important" (Macquarie); "contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account" (Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie)... 18In a case (Veloskey v Karagiannis (EOD) [2002] NSWADTAP 18) decided under section 20C of the Act, which defines unlawful racial vilification and like section 49ZT(1) employs the phrase 'incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons', the Appeal Panel said at [29]:- 29 The words "hatred", "contempt" and "ridicule" are to be given their ordinary English meaning, but the latter two are qualified by the adjectives "serious" and "severe" respectively. Thus, in the context of s 20C, the public act must be capable of inciting intense dislike or hostility towards a person or group of persons, or grave scorn for a person or group of persons, or extreme derision of a person or group of persons: Kazak v John Fairfax Publications Ltd; Burns v Dye. The use of the adjectives "serious" and "severe" call for an evaluative judgment on the part of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556. 19With reference to the question whether alleged incitement is 'on the ground of the homosexuality of the person or members of the group', as required by the concluding words of section 49ZT(1), the Tribunal in Collier v Sunol [2005] NSWADT 261, in a passage subsequently approved in Collier v Sunol [2008] NSWADT 339 at [36], said at [63 - 64]:- 63 The principles governing this issue are summed up as follows in Burns v Dye [2002] NSWADT 32 at [24]:- 24 . . . We note that s 4A of the Act does not apply to vilification complaints. Section 4A provides that in relation to complaints of unlawful discrimination, where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, (whether or not it is the dominant or substantial reason), then that act is taken to be done for that reason. Consequently in the context of s 49ZT it is helpful to look at relevant cases, which dealt with the meaning "on the grounds of" before the 1994 amendment to the Act, inserting s 4A, took effect. Mathews DCJ in O'Callaghan v Loder [1984] EOC 92-023 at 75,499 took the view that the phrase "on the ground of" meant a "significant factor," "a substantially contributing factor" and "a causally operative effect". Her Honour used these clauses interchangeably. In Waterhouse v Bell (1991) 25 NSWLR 99 at p 106. Clarke JA used the phrase "an operative ground". 64 In Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, the Appeal Panel used the phrase 'a substantially contributing factor'. We take this to be the preferable view. 20With regard to the interpretation of section 49ZS, it has been held in the Tribunal that posting material on the internet may be a 'public act' even if internet users wishing to have access to it must first go through a process of registration. In Collier v Sunol [2008] NSWADT 339 at [25 - 28], the Tribunal said:- 25 It was common ground that in order to access the website... a person merely needs to type that address into their internet browser. However, in relation to .... there is a more complicated process. When the user first accesses the website they receive the message "you have reached an age-restricted area of Yahoo Groups." The message asks the person to register by providing the name of their account and a password. Any person is eligible to register. No approval is needed and registration is open to any member of the public. On registration a person nominates a user name and a password. 26 Mr Sunol submitted that posting material on [the latter website] was not a public act because he maintains that the site is "password protected". He relies on the decision in Collier v Sunol (2005) NSWADT 261 at [33] in which the Tribunal said: We have no doubt that the act of posting written text on a website that is not password protected and therefore is publicly accessible falls within paragraph (a) of the definition of 'public act' in s 49ZS. It constitutes a 'form of communication to the public'. 27 Mr Sunol also highlighted the decision of the Federal Court in Jones v Toben [2002] FCA 1150 in support of his submission. That decision was referred to by the Tribunal in Collier v Sunol (2005) NSWADT 261 at [34]: 34 In Jones v Toben [2002] FCA 1150, the Federal Court held that posting material on a site of this nature was an act 'not done in private' for the purposes of the vilification clauses of the Racial Discrimination Act 1975 (Cth). Section 18C(2) of this Act states that 'an act is taken not to be done in public if it... causes words, sounds, images or writing to be communicated to the public...' At [73 - 75], Branson J said:- 73 In my view, the placing of material, whether text, graphics, audio or video, on a website which is not password protected is an act which causes words, sounds, images or writing to be communicated to the public in the sense that they are communicated to any person who utilises a browser to gain access to that website. 74 I conclude that the placing of material on a website which is not password protected is an act which, for the purposes of the [Race Discrimination Act], is taken not to be done in private... 75 I further conclude that the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publication, in that it allows individuals who access the website with a browser to read that text and see those graphics. 28 It was Mr Collier's submission that just because a member of the public needs to register on line before reading the material, that does not take it out of the public realm. He used the analogy of a person having to purchase or borrow a book before they could read it. The existence of that step does not prevent the publication of the book from being a public act. We agree with Mr Collier's analysis. Posting material on the two websites relevant to these proceedings constitutes a public act because it is a form of communication to the public. Any member of the public with access to the internet who registers and indicates that they are over 18, can read the material. No one is prevented from accessing the site. 21Much of the case law that we have just outlined (though not the recent decision of the Court of Appeal in Sunol v Collier (No 2) [2012] NSWCA 44) was discussed in four outlines of submissions (each relating to a separate file) prepared by Mr Burns and read by him at the hearing.

The publications complained of 22The particulars of Mr Burns' allegations of unlawful homosexual vilification have been difficult to determine. In identifying the publications about which he complained, he relied primarily on the President's four reports, to which many pages of printouts from the internet and other sources are annexed. These printouts also contain, however, a great deal of other material, the relevance of which was not always clear. In matters 111024 and 11043, he filed Points of Claim, which have provided some assistance. But it became evident at the hearing that he wished us to take account of material allegedly published by Mr Sunol that was not quoted or referred to in the Points of Claim. 23As far as we can ascertain in these circumstances, Mr Burns' claim of unlawful homosexual vilification in the eight complaints that he lodged with the Board is that each of 15 publications of text, for which Mr Sunol bears responsibility, contravened section 49ZT(1) through inciting hatred and/or serious contempt of homosexual people on the ground of their homosexuality. 24 A number of the passages of text about which Mr Burns complained appeared on one or other of two websites which, according to his own admission at the hearing, Mr Sunol operated. On occasions during the hearing, Mr Sunol admitted that he made these publications. Once or twice he claimed that other people had hacked into his websites and posted material on them. But since he offered no evidence to support this claim, our finding is that it was he who communicated these passages to the public, within the meaning of paragraph (a) of section 49ZS. 25Three of the passages that did not appear on either of Mr Sunol's web-sites would be found by any internet user who clicked on a passage that did form part of the material published on one of these sites. The question whether, in these circumstances, Mr Sunol should be held to have communicated these three passages to the public is discussed below. 26Mr Burn's complaints extended also to three publications by Mr Sunol on websites other than his own. The dates on which they were alleged to have been made were 4 October 2002, 8 February 2011 and 26 February 2010. Mr Burns alleged that the publication on 8 February 2011 took the form of a posting by Mr Sunol on a web page that he (Mr Burns) maintained. Mr Sunol did not deny making these publications or that at the time when Mr Burns complained to the Board they were still accessible on the internet. 27A further passage about which Mr Burns complained was a report of a statement attributed to Mr Sunol. Mr Sunol did not deny making the statement, which formed part of an article dated 8 March 2011 on the website of the Newcastle Herald. A printout of this article was annexed to one of the statements tendered at the hearing by Mr Burns. We are satisfied that Mr Sunol, by making this statement to a reporter in the knowledge that it might be included in a newspaper article, bears responsibility for its being communicated to the public. 28We now set out, in chronological order, (a) the passages of text on which Mr Burns based his claims of unlawful homosexual vilification; (b) the relevant file number; (c) some additional material indicating the context of their publication, which in all cases occurred on the internet; and (d) the dates on which they were published or on which Mr Burns gained access to them. Unless otherwise indicated, the passages were directly accessible, without any password or process of registration, on one of Mr Sunol's websites. A number of misspellings and typographical errors are not corrected:- 1. [111024: Context not indicated; appearing on a website not maintained by Mr Sunol]. 'I am not anti gay but anti gay Mardi Gras in Sydney as it is full of criminals... The gay Mardi Gras is a con job and is out to deceave the Australian people. It is full of drugs ect. (Initially published on 4 October 2002, but still accessible on 4 March 2011) 2. [111024: Referring to Westbro Baptist Church Group]. 'Westbro are very right in what they preach, it is just the way they preach it I am in dissagreeance with. They are fighting a very wicked and evil enemy in which they talk about what God really thinks of Fags.' (26 February 2010) 3. [111024: Under the heading 'Thread: who is your Hero today, Mr Magoo or John Christopher Sunol'] 'I speak the truth of these events as these people running Mardi Gras are very very evil and drugs, child pedophilia and else are involved in this event.' (4 October 2010) 4. [111024: Referring to a brief report of a Supreme Court case in the USA, involving one Fred Phelps and said to raise issues of free speech] 'This is an identical case to what I have in Australia in the NSW supreme court. While I might not fully agree with his methods, He is a brave man in attacking these evil people in the Homosexual lobby. I know about Mathew Shepard and from what I found out about from the Homosexual Rainbow groups, Fred is 100% right, Mathew Shepard was a living piece of hojmosexual garbage that got what he deserved when he went and attacked really evil groups, the KKK.' (7 October 2010) 5. [111024: Referring to a newspaper article about 'Greens leader Bob Brown'] 'I am quite dismayed to read such an article on such a wicked and evil man. I believe that this man is going to destroy Australia rather than uplift it and he will bring persecution to the church. I think next he is going to try and take away religious exemption to the Anti vilification laws to make it illegal for the churches and religious organization to refuse to accept gays and lesbians from working inside their organization and joining their congregations. Henry Collier who attacked me unjustly wanted such and look what happened to this man, he has a heart attack and died. That is Gods answer to such evilness.' (15 October 2010) 6. [111024: Referring to a lecture by Father Frank Brennan entitled 'Reconciling religion, politics and human rights] 'I know as I was framed by a Henry Collier, told lies against and set up for to get my name registered as a homophobia. I will not accept it now and not give in speaking about the wickedness and criminality behind the Sydney Gay and Lesbian Mardi Gras. Henry is now dead so I do not have to worry about him and that Rod S is to much of a gutless to do anything to try and stop me.' (4 November 2010) 7. [111024: Referring to a newspaper report that nine men in the UK had been arrested over claims that they had 'groomed teenage girls for sex'] 'This is dreadful and those who are grooming minors for sex need to be locked away for a mighty long time. Just as the poofs groom young boys for sex in the Gay Mardi Gras in Sydney and they need to be shut down as well.' (12 January 2011) 8. [111024: A publication on a web page maintained by Mr Burns, headed 'One Response to BURNS SOUNDS WARNING ON "HITLER STYLE" GAY MARDI GRAS THREAT'] 'This man is very evil...The Mardi Gras is a very wrong event and it is run by child pedophiles and criminals who sell pornography. To put little children in such an event is evil.' (8 February 2011) 9. [111024: Referring to a proposal by Mr Burns for a comprehensive anti-homophobia campaign]. 'Gary Burns calls for a comprehensive national homophobia campaign. The article is just plainly and simply wrong and wicked in the eyes of God. The man who wrote it, Gary Burns, is very repressive and would if he could try to get the Federal Government to legislate to have all the deemed homophobes put on a register... The man would make a homophobic register to the same if not more degree as a child pedophile register.' (11 February 2011) 10. [111043: No specific context]. 'I am working tonight and am not going to Gay and Lesbian Mardi Gras in Sydney. I have reasons for this which are: I am not in favour of this event. It is a perverted piece of living garbage and very defamatory against people in public - also a national security risk of territory attack as Islamic terrorist put their suicide bombers on this kind of activity. This has been set up for use by the criminal elements that help run it. 1.They are drug dealers, 2.They are pedophiles 3.They deal with pornography and xxx material, and put little children in this. 4.They are blasphemers and a national security risk for the whole of Australia 5.most of all they are not only looking for money as they are mega wealthy, and money means nothing to them, it is power to take over the world with alternative legislation which was once frowned up. 6.Most of all they are criminal and evil people 7.It also has political objectives of bringing in unwanted, uneeded and socialy bad legislation to Australia and else where through its enormous marketing capability They use one very good method to shut up people like myself from telling the truth so they can keep their lies going. and that is The use of vilification and equal opportunities legislation...' (5 March 2011) 11. [111024: The statement attributed to Mr Sunol in the Newcastle Herald article]. 'What I'm saying is, the Mardi Gras is run by drug dealers and paedophiles, not all homosexuals [are drug dealers and paedophiles]. I've seen men with no pants on marching down Oxford Street in Sydney, which is repugnant. If they'd done that in Iran, if they'd done that in Iraq, they'd be murdered. I'm speaking out against it because the homo-nazis and femi-nazis are taking away our right to speak against them.' (8 March 2011) 12. [111120: Referring to a radio news report of Derryn Hinch being sentenced to home detention] 'Those in corruption will be exposed (as well as the Mardi Gras leaders as they are wicked people and criminals).' (22 July 2011) 13. [111120: Republication of part of an email composed by Mr Sunol in 2003 and appearing on a website called 'Trephination'- access obtained through clicking onto the words 'Missing Wives and the War on Freemasonry' on one of Mr Sunol's websites - these words on his site were preceded by the statement 'NB: this is cut and pasted material taken from online which is written by me to others some seven to eight years ago around 2003'] 'I will use these cheap rail fares of $3.30 to anywhere... to spread anti Mardi Gras material and... material inciting people to speak out against the Femenist agenda and the Gay agenda. I will not stop ever until I get locked up and then I will just incite those others inside to dissobey the law concerning villification of gays and other evil laws ect... I am also an eternal enemy to the femenist equal opportunity agenda and this will remain and not ever change. You all loose, I win so forget it sister.' (24 July 2011) 14. [111120: As in 13, but a different email by Mr Sunol] 'Dogwomble you are a trouble making bastard of a dirty and filthy minded faggot and poof. I refuse to state anything else.' (24 July 2011) 15. [111120: Republication of part of an email composed by Mr Sunol in 2003 and appearing on a website called 'Trephination'- access apparently obtained through clicking onto the words 'Stop sexually harassing me John' on one of Mr Sunol's websites, but no evidence as to whether the attention of internet users was drawn to this link] 'I am not interested in a blow job by a poof and pervert like Lionel Hand.' (24 July 2011) 29It will be seen that in this list of publications, nos. 1 to 9 and 11 were alleged in file 111024, no.10 in file 111043, and nos. 12 to 15 in file 111120.

The requirement of responsibility for a 'public act' 30It was not in dispute that the publication of material on the internet on a site that is accessible to any user without any form of password protection is a form of 'communication to the public' and is therefore a 'public act' under section 49ZS(a) of the Act. 31Mr Burns contended that each of the publications about which he complained was a separate 'public act'. We agree with this contention, for these reasons. Except for nos. 13 and 14, the publications all occurred on different dates. Although nos. 13 and 14 occurred on the same date, they were separated from each other by a significant quantity of published text. This approach accords with a discussion in Collier v Sunol [2005] NSWADT 261 (at [36 - 38]) of what is a single 'public act' when more than one passage of allegedly vilificatory material is published on the internet. 32A consequence of this ruling is that when determining whether any one of the 15 publications amounted to unlawful homosexual vilification under section 49ZT of the Act we must consider the publication in isolation. The 'message' that it conveyed must be determined without reference to any of the 'messages' conveyed by any of the other 14 publications. On the other hand, any material published within the 'vicinity' (putting it loosely) of one of the 15 publications may form part of the context of that publication and for that reason be relevant to its interpretation. 33For reasons already given, we are satisfied that Mr Sunol communicated to the public all but the last three of the 15 publications that we have just listed. In relation to these three, he argued, relying on the extract from Collier v Sunol [2008] NSWADT 339 that we quoted above at [20], that he was not responsible, because the three passages in question did not appear on any website maintained by him, but would only come to the attention of internet users if they (a) went to one of these websites and (b) clicked on a particular phrase appearing on it. 34With regard to the first two publications in this group of three (nos. 13 and 14), this argument by Mr Sunol is not persuasive, for two reasons. The first of these is that the publications contained material that he himself composed. The second is that his website expressly invited users who had logged into it to click on the requisite phrase and thereby gain access to the publications. He directed users to the link by putting on his website the following statement (quoted above in the context of publication no. 13): 'NB: this is cut and pasted material taken from online which is written by me to others some seven to eight years ago around 2003.' 35On the other hand, it is not clear from the evidence relating to publication no. 15 that any such invitation existed on a website maintained by Mr Sunol. Mr Sunol did not deny that he composed an email including the material in question, that this material was accessible on the internet on a website maintained by someone other than himself, or indeed that it was possible for internet users who had logged into his website to discover the link giving them access to the material. But we do not believe this to be enough to render Mr Sunol responsible for the 'public act' of communicating the material to the public by means of the internet. 36Our overall conclusion, therefore, is that Mr Sunol was responsible, in the relevant sense, for the 'public act' whereby the first 14 of the 15 passages of text quoted above were communicated to the public. But he was not responsible for the publication of no.15.

Application of the test of unlawful vilification set out in section 49ZT(1) 37It was not disputed that the Applicant, Mr Burns, is a homosexual man and therefore has standing under section 88 of the Act to lodge complaints about unlawful vilification of homosexuals. He has, to use the language of section 88(a), 'the characteristic that was the ground for the conduct that constitutes the alleged contravention'. 38In the written and oral evidence of both parties, a number of assertions were made as to what Mr Sunol 'really meant' or what he 'intended to say' when making the publications on the internet that we have just described. Although that evidence is potentially relevant to the question whether these publications, or any of them, might fall within the exception to liability created by section 49ZT(2) of the Act, it has no bearing on the question that we shall now consider: namely, whether any, and if so which, of these publications fell within the range of 'public acts' described in section 49ZT(1). 39By virtue of principles outlined above regarding the interpretation of section 49ZT(1), that question must be determined by reference to the 'capacity' or 'effect' of each publication, assessed without any consideration of what Mr Sunol 'really meant' or 'intended to say'. 40In discussing this topic, it is convenient for us first to indicate, giving reasons, which publications (out of the 14 for which Mr Sunol was responsible) we have found to satisfy the criteria of liability (subject to possible exemption under section 49ZT(2)) that are established in section 49ZT(1) as interpreted in the case law. We will then state why in our opinion the remaining publications do not satisfy these criteria. 41The publications falling within section 49ZT(1). In our opinion, seven out of the 14 publications for which Mr Sunol was responsible satisfied the criteria of presumptive liability established in section 49ZT(1). These are nos. 2, 4, 6, 7, 8, 10 (the first three sentences only) and 14. Our reasons for so ruling are as follows. 42Each of these publications contains one or more phrases that, read in context, has the 'capacity to incite', or the 'effect of inciting', feelings of 'hatred' and/or 'serious contempt' for the persons to whom the phrases refer amongst 'ordinary members' of the 'class to which the publication is directed'. The phrases in question do not merely convey these negative feelings, but urge readers of them to experience such feelings. 43We are treating internet users at large as 'the class' to which the publications were 'directed'. It may well be that the people who log in to the websites where these publications occurred - being in the majority of instances the sites maintained by Mr Sunol - would be more responsive than 'ordinary' internet users to the statements attacking homosexual people. But we have no evidence on this question. 44The phrases in each of the seven publications on which we chiefly base our finding are these:- 2 - 'a very wicked and evil enemy' [referring to 'Fags'] 4 - 'these evil people in the Homosexual lobby' and 'Mathew Shephard was a living piece of hojmosexual (sic) garbage' 6 - 'wickedness and criminality behind the Sydney Gay and Lesbian Mardi Gras' 7 - 'the poofs groom young boys for sex in the Gay Mardi Gras in Sydney and they need to be shut down as well' 8 - 'The Mardi Gras is a very wrong event' and 'To put little children in such an event is evil' 10 - '[The] Gay and Lesbian Mardi Gras in Sydney... is a perverted piece of living garbage' 14 - 'dirty and filthy minded faggot and poof' 45These phrases all incorporated very strong and abusive language about their 'target' and/or imputed criminal conduct of a very serious nature indeed. In our judgment, they incited not just dislike but hatred and/or serious contempt. 46In the case of each of the seven publications, the 'target' of the phrase or phrases that we have held to fall within section 49ZT(1) was expressly identified as a homosexual person (e.g. 'Dogwomble') or as a homosexual group, such as 'Fags' generally or participants in the Gay and Lesbian Mardi Gras parade (hereafter 'the Mardi Gras'). 47Furthermore, the 'ground' on which each publication incited hatred and/or serious contempt was the homosexuality of the person or group. The person's or group's homosexuality was 'a substantially contributing factor'. 48This was clear, in our opinion, from the express words of nos. 2, 4 and 14. In so deciding, we reject a submission by Mr Sunol regarding no. 4: namely, that his abuse of Mathew Shepard was based on the way that Mr Shepard had 'behaved as a person', not on his homosexuality. Even if this was Mr Sunol's intention, that is insufficient to avert liability (as confirmed by the Court of Appeal in Sunol v Collier (No 2) [2012] NSWCA 44 in paragraph 41(d)) because the words that he used conveyed the message that Mr Shepard's homosexuality - his having been 'a living piece of homosexual garbage' - was a substantial reason why he 'got what he deserved'. 49The remaining four publications - nos. 6, 7 and 8 and the first part of no. 10 - all referred in different ways to the Mardi Gras. In considering these, we have taken into account the following passage in the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 at [37 - 38]:- 37 Mr Olsen [counsel for the respondent] submitted that all the annexures except annexure 3, that part of annexure 6 referred to above, and annexure 8 refer, not to homosexuals in general, but to the Sydney Gay and Lesbian Mardi Gras. We agree with that assertion. Those annexures refer to the "Mardi Gras", the "event", the "bloody faggots Parade" and "this piece of living shit". In Collier v Sunol [2005] NSWADT 261 the Tribunal decided at [67] on the basis of the evidence and submissions in those proceedings, that some of the publications: . . . contain strong epithets and serious allegations and on the face of it are defamatory. But these epithets and allegations are directed only at 'the Mardi Gras', which would appear (we heard no evidence on the matter) to mean those involved in organising the annual Sydney event known by this name. 38 Mr Sunol refers in Annexure 4 and 5 to those who "run" the Mardi Gras and refers to them as "evil spirits" and "drug lords and criminals". Unlike the Tribunal in Collier v Sunol [2005] NSWADT 261 I am satisfied that homosexuality was a substantially contributing factor to the incitement in these publications. The event is called the Sydney Gay and Lesbian Mardi Gras. I take judicial notice of the fact that the vast majority of the people who organise and participate in the parade are homosexual. The clear inference from these publications is that the Mardi Gras is an event run and organised by homosexuals; those people are "evil", "paedophiles" "drug lords" and "criminals" and the Mardi Gras should be brought down, and those involved "punished" and wiped off the face of the earth. While the subject matter of the emails is the Mardi Gras, and those who run that event, there is a sufficient connection those people as a group and homosexuality to conclude that homosexuality was a substantially contributing factor to the incitement. 50We agree that the fact that the 'vast majority' of the people who organise and/or participate in the Mardi Gras are homosexual supports a conclusion that statements inciting hatred and/or serious contempt against this group of people should be held to have done so 'on the ground of' their homosexuality. A further matter also supporting such a conclusion is that over a long period of time members of the public have consistently been encouraged to identify, and have in fact identified, the Mardi Gras with homosexual people and with the causes that homosexual people seek to promote. Also, in the four publications that we are currently discussing, nothing was said to dispel the following two inferences: (a) Mr Sunol, in referring to 'the Mardi Gras', must be taken to have meant people who organise and/or participate in the Mardi Gras; and (b) he must also be taken to have intended his readers to treat their homosexuality as a key characteristic identifying them and setting them apart from other people. 51Mr Sunol argued that in most of the publications about the Mardi Gras with which these proceedings are concerned he did not attack those who participated in the Mardi Gras, let alone homosexual people generally, but only its 'leaders'. He maintained that he had discovered, during a course of university study that he undertook some years ago, that many of these people had engaged or were engaging in criminal activity of a very serious nature. They were his targets, he claimed, not the people who participated in Mardi Gras activities. 52This distinction between the 'leaders' of the Mardi Gras and the participants in it is important in these proceedings. As stated below, the reason why we have held a number of the publications for which Mr Sunol was responsible to be outside the scope of section 49ZT(1) is that they related only to the 'leaders'. This ruling applies, for instance, to the passage in no. 10 that we have held not to fall within section 49ZT(1): i.e. the passage commencing with the sentence 'This has been set up for us by the criminal elements that run it'. 53Irrespective, however, of what Mr Sunol may have intended, this is not the case with the publications (nos. 6, 7 and 8 the first part of no. 10) that we are now discussing. To 'ordinary members' of the class to which they were 'directed' (being the people whose reactions must be considered, according to Bathurst CJ and Basten JA in Collier v Sunol (No 2) [2012] NSWCA 44), they conveyed the message, in our opinion, that participants in the Mardi Gras should be viewed with hatred and/or serious contempt, largely on the ground of their homosexuality. 54In reaching this conclusion with regard to publication no. 7, we reject a submission by Mr Sunol that he was referring only to a 'small group' of homosexual men who 'groomed' boys for sex (according to what he had been told), not to participants in the Mardi Gras generally. This is not, in our opinion, how the publication would be understood by ordinary members of the class to which it was directed. 55The publications not falling within section 49ZT(1). In our opinion, the remaining seven out of the 14 publications for which Mr Sunol was responsible, along with the final part of no. 10, did not satisfy the criteria of presumptive liability established in section 49ZT(1). These seven publications are nos. 1, 3, 5, 9, 11, 12 and 13. Our reasons for so ruling are as follows. 56In relation to publications 1, 3, 10 (final part), 11 and 12, the question that we have just discussed arises again, because these publications all related in some way to the Mardi Gras. In no. 1, a finding that the statements inciting negative reactions ('full of criminals', 'a con job' etc) was 'on the ground of' the homosexuality of those organising and/or participating in the Mardi Gras is ruled out, in our opinion, because of the opening words - 'I am not anti gay...' In nos. 3, 10 (final part), 11 and 12, the targets of the statements inciting negative reactions were respectively 'these people running Mardi Gras'; 'the criminal elements that help run it'; the 'drug dealers and paedophiles' who 'run' the Mardi Gras (who again were distinguished expressly from 'all homosexuals'); and 'the Mardi Gras leaders'. 57We recognise that these rulings differ from the rulings given on broadly similar publications by the Tribunal in Collier v Sunol [2008] NSWADT 339. But it does seem to us that vilificatory statements referring specifically to the 'leaders' or 'those who run' the Mardi Gras should not be viewed as applying to everybody involved in the Mardi Gras. Equally, such statements do not necessarily imply that the 'leaders' or 'those who run' the Mardi Gras should be the objects of hatred and/or serious contempt solely or substantially on account of their homosexuality. This may in fact be Mr Sunol's opinion, but his opinion is not the issue to be determined. What matters is the message that his words conveyed. 58Our reason for deciding that publications 5 and 9 do not fall within section 49ZT(1) is that while each publication is highly abusive of one or more individuals (using epithets such as 'evil') on account of their promotion of causes as the extension of laws prohibiting homosexual vilification or the establishment of a register of homophobic people, they do not identify the homosexuality of their 'targets' as a substantial reason why these epithets are warranted. The contrast with no. 14 - in which highly abusive language was also used against an individual - is clear, in our opinion. 59Finally, we regard no.13 as outside the scope of section 49ZT(1) because while it vigorously attacked the 'gay agenda', the 'feminist agenda' and anti-vilification laws, it did not convey, let alone incite, negative feelings towards people who support these 'agendas' or these laws.

The 'exception' in section 49ZT(2) 60Under section 104 of the Act, the onus of proving the exception to liability created by section 49ZT(2) lay on Mr Sunol, the Respondent in these proceedings. 61Mr Sunol maintained in his evidence and his submissions that in publishing the material about which Mr Burns complained, he was not attacking homosexuals. He claimed to have been motivated by his religious beliefs. He said also that he felt obliged to inform the public that, as he had ascertained through his studies at a university, 'evil' elements permeated the running of the Mardi Gras and the annual Mardi Gras parade was a 'national security risk'. He explained this last assertion by saying that because of the size of the parade and of the 'controversial statements it pushes', it was an attractive target for terrorists. 62These arguments bear no relation to the matters to be proved under paragraph (a) or (b) of section 49ZT(2). With regard to paragraph (c), which we understand Mr Sunol to have been invoking, it is beyond doubt that revealing criminality amongst the leaders of the Mardi Gras and demonstrating that the Mardi Gras parade is a national security risk would both be 'purposes in the public interest'. But none of the public acts on Mr Sunol's part that we have held to involve vilification of homosexual people can be said to have been 'done reasonably and in good faith' for either of those purposes. No sufficient link exists between these two purposes, or either of them, and any of the seven publications that we have found to fall within section 49ZT(1).

Our conclusions on homosexual vilification 63For the foregoing reasons, we find that the dissemination by Mr Sunol of each of the following seven publications in the above list - nos. 2, 4, 6, 7, 8, 10 (the first three sentences only) and 14 - was an act of unlawful homosexual vilification under section 49ZT of the Act. 64We dismiss Mr Burns' claims of unlawful homosexual vilification based on publications 1, 3, 5, 9, 10 (the fourth and subsequent sentences), 11 - 13 and 15. 65We will discuss the question of remedies for these contraventions of section 49ZT of the Act after we have considered Mr Burns claim to have been victimised by Mr Sunol.

Relevant law 66Section 50 of the Act states:- 50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 67In Carter v Brown [2010] NSWADT 109 at [131 - 133], the Tribunal made the following observations about the interpretation of section 50:- 131 The applicant must establish the following to prove victimisation: a) The applicant did one of the things referred to in sub-paras (a)-(d); b) Each respondent caused the applicant to undergo or experience something; c) The applicant must have suffered some consequential detriment; and d) That detriment must have occurred on one of the grounds set out in sub-paragraphs (a) to (d) of section 50(1). (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808) 132 In Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42 the Tribunal set out the requirements of the provision as follows: The meaning of "subjected" 171 ...the Tribunal in Shaikh v Commissioner, NSW Fire Brigades expressed the view that the word "subject" means no more than that the conduct of the respondent was done on one of the grounds referred to in s 50(1) and adds nothing of substance to the other stated requirements (at 78, 986). We propose to adopt this view. What constitutes a "detriment"? 172 In Shaikh v Commissioner, NSW Fire Brigades, the Tribunal said, at 78, 986, that victimisation occurs when the respondent causes the complainant to undergo loss, damage or injury based on the fact that the complainant has made a complaint or an allegation within the meaning of s 50(1). When considering the meaning of the word "detriment", the Tribunal expressly said that it preferred the Macquarie Dictionary meaning of "loss, damage or injury" and that it did not consider it helpful to refer to the concept, applicable to discrimination provisions, of suffering a material difference in treatment. 173 For present purposes, we prefer the meaning given to the word "detriment" in Bogie v The University of Western Sydney. In that case, following Hill v Water Resources Commission (1985) EOC 92 - 127 at 76, 290, the Tribunal held that all was required to constitute a "detriment" in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter (at 78, 146). Thus defined, we are satisfied that the delay in transferring Mrs Borg constitutes a "detriment" within the meaning of s 50(1)... The meaning of "on the ground that" 175 Section 4A of the Act, which was inserted in 1994, provides that if an act is done for two or more reasons, provided one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason (whether or not it is the dominant or a substantial reason for doing the act). In Shaikh v Commissioner, NSW Fire Brigades, the Tribunal noted that this section did not apply to an act of victimisation (at 78,986). Accordingly, it is instructive to derive assistance from the cases which dealt with the comparable phrase, "on the ground of", in the context of discrimination on substantive grounds before the 1994 amendment took place.... 133 The Appeal Panel recently considered the meaning of the words "on the ground of" in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 and held the question to be posed is whether the respondent had done (sic) "one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment". 68In Chand v Rail Corp [2011] NSWCA 79 at [43], the Court of Appeal quoted this dictum from Nicholls without raising any question about its correctness. 69In Carter v Brown, the alleged victimisation of the applicant by two respondents followed the making of complaints of unlawful homosexual vilification against each of them. The Tribunal, applying the principles stated in the above passages from its decision, found that one of the two respondents (Rodney Fisher) had indeed victimised the applicant. The relevant conduct of this respondent, as described by the Tribunal at [152 - 153], took the form of threats, uttered in the presence of members of the applicant's family, to kill or seriously injure the applicant, accompanied by highly offensive abuse referring to his homosexuality. At [154], the Tribunal identified as follows the 'detriment' inflicted on the applicant:- 154... We accept the applicant's evidence that Mr Fisher caused him to feel humiliated, embarrassed and distressed by his conduct and the language he used. We find that those feelings amount to a detriment in that the conduct of Mr Fisher placed the applicant under a disadvantage, was not trivial and constitutes damage and a form of injury... [T]here was no evidence as to the applicant's reputation as perceived by others and, as such, we make no finding as to whether his application has, in fact, been damaged by the conduct of the respondent. 70In the last sentence of this passage, the term 'application' would seem to have been used erroneously instead of 'reputation'.

The conduct complained of 71The conduct of Mr Sunol that Mr Burns claimed to have amounted to victimisation comprised eight publications of text on the internet during 2011; a Youtube clip, which also appeared on the internet; a few more recent internet publications by Mr Sunol; and numerous email messages sent recently by Mr Sunol to Mr Burns. The dates of these recent internet publications and email messages were within the period from 29 April to 23 June 2012. 72The eight publications of text were reproduced in three of the President's four reports, relating respectively to files 111024, 111120 and 121023. We now set them out in chronological order, together with the relevant file number, some additional material indicating the context of their publication and the dates on which they were published or on which Mr Burns gained access to them. Unless otherwise indicated, the passages were directly accessible, without any password or process of registration, on one of Mr Sunol's websites. A number of misspellings and typographical errors are not corrected:- 1. [111120: Under heading 'Gary Burns v John Christopher Sunol] 'I tell Gary Burns, if you want to take me back to the Administrative Decisions Tribunal, then go ahead... I will fight you all the way through the courts and never apologize to anyone. I am not a homophobe and I do not villify, this is only a political exercise to stop me running for politits... I have decided not to run during this state election as I have to court cases i will be fighting. 1.Suprume court agaisnt ADT to overturn the Collier Vs Sunol decisions and 2, Now you and me. I will not stop as God has told me to keep on keeping on and I am in the right. You are only a trouble maker looking for fame... I am determined that I am right about homosexuality and the Homosexual lobby and you witht aht of Henry Collier from my previous case, who has since passed away are very wrong.' (17 January 2011) 2. [111024: Published on a web page maintained by Mr Burns]. 'This man Gary Burns has the problemj as I had a case with a deceased Henry Collier before, I do not recognise where I was wrong, and this was political, Henry and those on zgeek.ocm/ especially their leader Pirate who spoke out loies against me in the Administrative decisions tribual set me up. I do not recognise where I went wrong before and this case which Gary Burns is brining againsty me I still not recognise or will accept i8t. I have nothing more to say but I will fight back with the wratyh of the Lord behind me as these people attacking me are wicked in the eyes of God. They attack God, not me.' (8 February 2011) 3. [111024: Publication on same site as no. 2] 'sorry for typo but I am very emotional and uypset as this Gary Burns is attacking me only to gain publicity. I will state no more on this as I have handed it over to my solicitors to handle this case for me.' (8 February 2011) 4. [111120: Context not indicated] 'They are all trouble makers anyway and that fool who leads this groups Pirate set me up and told lies to a tribunal to get me in trouble. He is a mongrel as with the man called Burns who attacked me for nothing.' (18 July 2011) 5. [111120: Under the heading 'I have decided to put a You Tube on Teusday about the restraining order from Gary Burns gesterday'] 'Watch my You Tube next Tuesday as this will be on this restraining order I had to attend. I will write a short bit now. Gary Burns was a fool He turned up without a solicitor and he used material taken form my blog to try and show I could cause others to harm for telling the truth about this man As far as I am concerned he is a living piece of garbage and scum as he manipulated the law in the name of Homosexual activism to take people to the courts. Then tells lies to steal their money and makes does not use the courts they way they were designed to. He is a media bunny and loves publicity and he invited to my court case no less than 20 media outlets, which none of them turned up as the Media know this person. He is habitual schemer and works on self full fulfilment, NOT THE GOOD OF THE COMMUNITY HE IS SUPPOSEDLY LOBBYING FOR. Calls himself a homosexual activist but I think he has not even TAFE qualifications in social welfare or lobbying in business. He has no idea of the reality of the court systems or he would not have mucked up this case so seriously. He told lies about me and acted in skulduggery thinking that I would cave in as others of his victims have. but I do not cave in, Unlike Gary I have a B.Soc.Sc in sociology and scoial change... I paid a lawyer to represent me and the lawyer cut Gary to pieces in his cross examination section of Gary's evidence. Gary gave his evidence and after the cross examining and questioning the Lawyer did not even have to give evidnence. It was all done and over, the Magistrate openly chastised Gary as a untrained and unprofessional person taking on something to big for him to be able to handle. My lawyer applied for costs for me and the Magistrate awarded me $4,400 as legal fees which Gar5y was ordered to pay for taking me to court and wasting the courts time. Gary told my lawyer that he will go bankrupt, but I doubt if this is going to happen as we are going to pursue Gary through the courts like he has done to other innocent victims which he is wrongly claiming their vilification breaches over. So it it snot finished as per yet. I won (and my lawyer - Mr Olson) this case and section big time. So Gary if you read this, be a polite gentleman and wake up. You yourself are very wong, Not me. Do not try to do activism you know nothing of and watch what you do next time or you are out to loose money, NOT ME and Do not join this bunch of internet thugs who call themselves zgeek as they are only trouble makers...' (6 August 2011) 6. [111120: Under the heading 'A serial winger's life and a picture apparently showing the beginning of the Youtube clip] 'I speak on the court case at the local court last Friday with a known serial litigant or serial winger by the name of Gary Burns, he calls himself a homosexual activist working for the good of the gay and lesbian community but in reality this man abused the law, and winges over nothing. He attacked me and tried to get an AVO against me but failed big time as the Majistrate could see where he was only trying to abuse the law and for his own purpose. we have to fight this out now through the ADT a number of times in different cases and different jurisdictions but he failed as he thought that I was a nock over and easily could be manipulated or give in. but He was to find something different.' (8 August 2011) 7. [121023: Under the heading 'Gary Burns is taking me (John Christopher Sunol)'] 'Burns: You are only a serial litigant and a habitual liar buster. Let me tell you YOU HAVE NOTHING ON ME THAT IS SUBSTANTIAL I saw what you had on me with the Solicitor yesterday and i will fight you all the way. Unless we can come to a compromise and I will not pay one little cent I will take you on in full buster. Anyway You owe me $4000 from the court you set up on a false restraining order in Waverly local court last September 2011. You had better remember this as you will be forced to pay this or you are in breach of court orders yourself. I will not let you forget that if and you take me on I will push this on you. You will pay this money or I will take you to the cleaners. You are nothing but a common thief and the worst kind of all, you do not steal directly by breaking into houses or like that, it is not your way. You set up false accusations in courts of law and ask for money from a person you have set up yourself and told complete and utter lies about. That is still stealing but not like the common thief, you are nothing but a dog, buster. I know it is a different jurisdiction but an animal like you who is a serial litigant does not and is not willing to realise your own losses and costs when you frame people as you do but are still willing to put people through the griller again and again. You are the trouble mate not me and if I do loose I would rather go to prison than pay you one red cent as I will not pay you. I would find the people inside prison allot more fairer and honest than you. If I went to prison I would make sure that everyone I cane across in prison knew the reason why I was put in there with them and encourage them to have serious words with you when released. Shut your mouth and forget these cases or I will fight you to the very end. Yours writing this in pleasure John Christopher Sunol' (10 December 2011) 8. [121023: Under the heading 'Burns vs Sunol (coming up)] 'this man is a thieving lying rotten mongrel. He has actions coming up against me in 2012. He has initiated this himself with no basis to anything but that he wants to thieve $40,000 from me like the thief he is by the worst way ever, miss use of the legal systems which Gary is endemic towards and continually doing. These are false actions which he always makes, but he still owes me $5,000 from an outstanding attempt at a AVO order against me which he fasly tried to take me to the Waverly local court for in August/September 2011 and lost against me. So this Gary Burns does not pay up his own debts and still carries on with his false cases with no real substance to them. He is not only a serial litigant and a thief but a serial abuser of the important legal resources of the NSW civil court systems big time. He was ordered to pay my costs for this order as he brought on a charge of false implications not in genuine fear for his life (which I would never do anyway as I am not a violent person) but through literal contempt and abuse of the legal systems which he does all of the time anyway. I tell you this Gary and this once and once only. Give up this case next year. It will fail as you are the trouble and it will come back to bit you in the bum if you go ahead with this and do not give up. I believe that God is with me and when I have the Lord on my side I can not loose - when I am not guilty of anything. Henry Collier tried to get me into courts, got his order but eventually failed - the same will happen to you as well. You will eventually fail as you are not only coming against me you are also moving in uncharted waters and acting against God. In the areas of Gay Marriage, mate this is evil beyond reasonable doubt and it will eventually fail as will your attacks upon me. It will come as the Burns v nine network case did when you lost - NOT AS THE BURNS V LAWS AS YOU MANIPULATED THE LAWS CASE AS I BACK JOHN LAWS, NOT YOU BUSTER and in THIS SECOND CASE WITH THE NINE NETWORK FOOTY SHOW YOU ABUSED THE LAW AGAIN. Another abuse of the legal system Gary Burns did was Burns vs Nine network and the footy Show. If you continue this on I could be your Ai - not Jericho Yours John (NB Also John Christopher Sunol is my real name by birth certificate, Gary Burns is not your real name, it is only a name for the public, your real name is some other than Gary Burns).' (10 December 2011) 73An account of some of Mr Burns' activities as a campaigner for the rights of homosexuals, headed 'Gary Burns (activist)' and published by Wikipedia, appeared on Mr Sunol's website immediately after publication no. 8. 74In the Youtube clip, Mr Sunol delivered a monologue lasting about five minutes. Having said that the clip was made on 8 August 2011, he described the hearing at Waverley Local Court in similar terms to those used by him in publication no. 5. During his monologue, he referred to Mr Burns as a liar, a cheat, a thief, a trouble-maker and a 'proven serial whinger'. He alleged that the magistrate at the hearing had described Mr Burns as 'no good'. He alleged also that Mr Burns was 'not a proper activist', but had used the law unethically, illegally, corruptly and for his own self-interest and self-fulfilment. His monologue contained references to homosexual vilification cases that Mr Burns had instituted in the past. But no mention was made of any of the complaints about Mr Sunol's publications that Mr Burns had lodged with the Board, or about any of the Tribunal proceedings deriving from those complaints. 75What we have called the recent internet publications and email messages composed by Mr Sunol were not included in Mr Burns' complaints to the Board or in any interlocutory grant of leave by the Tribunal to include them in his claim. For reasons stated in Burns v Dye [2002] NSWADT 32 at [8 - 10], we cannot take them into account as additional instances of alleged victimisation. 76In written and oral evidence, Mr Sunol stated that his derogatory comments were not prompted by Mr Burns' complaints to the Board, but by other conduct of Mr Burns, notably (a) the institution and maintenance of the AVO proceedings in Waverley Local Court, (b) attempts to bring about cancellation of his (Mr Sunol's) licence to drive a taxi, and (c) writing to politicians in an attempt to have him psychologically assessed. 77Mr Sunol attached to his statement a printout of the story dated 8 March 2011 in the Newcastle Herald to which we have already referred. It contained publication no. 11 in the list of publications allegedly vilifying homosexuals. In that same story, Mr Burns was reported to have said: 'When Mr Sunol is finally dealt with by me he will be laying (sic) spreadeagled on the pavement battered and bruised, figuratively speaking, because I am no nancy boy.'

78In our judgment, Mr Burns' claims of victimisation should be upheld in relation to two out of the eight publications of text that we have reproduced: namely, nos. 7 and 8. 79In each of these publications, Mr Sunol used a number of abusive and highly derogatory terms with reference to Mr Burns. In no. 7, he called Mr Burns a 'habitual liar', a 'common thief' and a 'serial litigant' and accused him of making 'false accusations in courts of law' and 'framing people'. Furthermore, he threatened that if he were to go to gaol, he would encourage other inmates to 'have serious words with' Mr Burns after they were released. In no. 8, he called Mr Burns a 'thieving lying rotten mongrel', a 'serial litigant' and 'a serial abuser of the important legal resources of the NSW civil court systems' and accused him of 'always' bringing 'false actions'. 80In varying degrees, these two publications, disseminated via the internet, were such as to cause Mr Burns to feel 'humiliated, embarrassed and distressed'. In one of them, no. 7, a threat (albeit somewhat far-fetched) was conveyed in this sentence: 'If I went to prison I would make sure that everyone I cane (sic) across in prison knew the reason why I was put in there with them and encourage them to have serious words with you when released." In conformity with the Tribunal's determination in Carter v Brown [2010] NSWADT 109 at [154], we are satisfied that these publications subjected Mr Burns to a 'disadvantage' which was 'not trivial' and which therefore amounted to a 'detriment' under section 50 of the Act. 81We are also satisfied that in each of these publications Mr Sunol referred to the complaints made to the Board by Mr Burns in such a way as to demonstrate that one or more of these complaints constituted 'at least one of the "real", "genuine" or "true" reasons' (to use the test laid down in the Nicholls case) for his abusive and derogatory language regarding Mr Burns. 82Most of these findings apply also to publications 1, 2 and 3. Through their use of phrases such as 'only a trouble maker looking for fame', 'wicked in the eyes of God' and 'attacking me only to gain publicity', they subjected Mr Burns to some degree of embarrassment, humiliation and distress. Their content and timing indicate that the 'trigger' for them was Mr Burns' making of his first two complaints to the Board. This occurred on 9 November 2010 and 13 January 2011, not long before the dates (17 January and 8 February 2011) of these three publications. 83In our opinion, however, the 'detriment' inflicted by each of these publications on Mr Burns must be characterised as 'trivial'. Each of them contained no more than a single derogatory imputation about Mr Burns' character or conduct. In each case, the underlying motivation - that Mr Sunol was angry about being made the respondent in legal proceedings instituted by Mr Burns - was immediately apparent to readers, many of whom would therefore be unlikely to pay much attention to the imputation. Accordingly, there was in our judgment no sufficient 'detriment' to support a claim of victimisation. 84The same observation may be made about publication no. 4. Any damage inflicted on Mr Burns by calling him 'a mongrel... who attacked me for nothing' would be no more than 'trivial'. 85A further reason for rejecting Mr Burns' case based on no. 4 is that there is no evidence to show that 'at least one of the "real", "genuine" or "true" reasons' for the making of this publication by Mr Sunol was Mr Burns' behaviour in complaining to the Board about him or maintaining proceedings against him in the Tribunal. This behaviour was not necessarily the 'attack' referred to in the publication. 86The same ruling applies, for different reasons, to nos. 5 and 6. In no. 5, Mr Burns was described as an 'activist'. In no. 6 there was a reference to proceedings in the Tribunal. But the 'trigger' for both publications - given their contents and their dates - was manifestly the hearing in the Waverley Local Court of Mr Burns's failed application for an AVO against Mr Sunol. Accordingly, even though both publications used highly abusive and derogatory language about Mr Burns, they did not 'victimise' him within the meaning of section 50. 87This ruling applies also to the Youtube clip. As indicated above, the principal topic of Mr Sunol's monologue was the recent hearing at the Local Court. There was no mention of any of Mr Burns' complaints to the Board or any of the resulting proceedings in the Tribunal. 88For the foregoing reasons, we find that publications 7 and 8 by Mr Sunol constituted victimisation of Mr Burns under section 50 of the Act. 89We dismiss Mr Burns' claims of victimisation in so far as they were based on publications 1 - 6 inclusive, on the Youtube clip and on internet publications and email messages composed between April and June 2012.

The relief claimed 90The remedies sought by Mr Burns against Mr Sunol on the ground of unlawful homosexual vilification were: (1) an order enjoining Mr Sunol from continuing or repeating any conduct contrary to section 49ZT of the Act; (2) an order requiring the publication in the Sydney Morning Herald of an apology to the homosexual community of Australia; (3) an order for payment of compensation to Mr Burns for the harm caused to him; and (4) in the event of non-compliance with orders (a) and/or (b), an order for payment of compensation to Mr Burns for non-compliance. 91The provisions of the Act authorising such orders in cases where a complaint has been substantiated, in whole or in part, are respectively subsections (2)(b), (2)(d), (2)(a) and (7) of section 108. 92The remedies that Mr Burns sought on the ground of victimisation were: (1) an order for payment of punitive damages, or in the alternative, damages to compensate him for the harm suffered by him; (2) an order that Mr Sunol provide a written apology to him; and (3) an order that Mr Sunol give a 'commitment' that he will 'desist from such pernicious public behaviour in the future'. 93The first of these orders may only be made in the alternative form claimed. Under subsection (2)(a) of section 108, damages may only be ordered 'by way of compensation for any loss or damage suffered by reason of the respondent's conduct'. Punitive damages are not provided for. 94The second of these orders would appear to fall within subsection (2)(d) of section, which authorises an order to a respondent to 'publish' an apology or retraction (or both). It might be thought that the word 'publish' does not include a communication to a single person. But in Burns v Dye [2002] NSWADT 32 at [106], the Tribunal, following a finding of unlawful homosexual vilification pursuant to a complaint made by the complainant in the present proceedings, ordered the respondent to 'issue' a written apology to him. 95No provision within section 108 authorises an order requiring a respondent to give a 'commitment'. If instead an injunctive order were to be made, the conduct restrained would have to be limited to 'conduct rendered unlawful by this Act or the regulations': see section 108(2)(b) and Sunol v Collier (EOD) [2006] NSWADTAP 51.

Evidence relating to these remedies 96During the hearing of these matters, the following evidence relating specifically to the question of remedies was put before us. 97Mr Burns stated that he became aware of publications by Mr Sunol vilifying homosexuals when looking at his (Mr Burns') Facebook page on 5 November 2010. The page displayed a link to one of Mr Sunol's profiles on Facebook. Mr Burns later discovered that Mr Sunol had five such profiles. On one of these profile pages, a number of homosexual men and drag queens were identified as Mr Sunol's 'friends'. They were also 'friends' of Mr Burns. Since then, Mr Burns has read a quantity of material posted by Mr Sunol on the internet, including the publications about which he complained to the Board. 98Mr Burns' written and oral evidence also included statements to the following effect. Mr Sunol did not challenge any of them:- (a) During 1978, Mr Burns took part in the first Mardi Gras parade to be held in Sydney, in the course of which he was 'almost bashed' by police officers. (b) During the late 1980s, while in a gay bar, he and the other patrons of the bar were abused by two men on the ground of their homosexuality and he was beaten so severely that he passed out. He suffered severe injuries to the head, necessitating eight stitches to a deep cut. (c) During 1988 or 1989, while in a park, he was chased by a few men looking for gay men to beat, and he only escaped by hiding under a car. (d) During 1993, he was diagnosed with Post Traumatic Stress Disorder, resulting from his experiences of intimidation and physical abuse on account of his homosexuality. He implied in one of his written statements that he was still suffering from this disorder. But during his submissions at the hearing, he said that he had 'overcome it quite well'. (e) In 1995 and in 2002, he was threatened and abused on account of being homosexual. The events during 2002 included the spay painting of the words 'fags live here' on the door of his residence. (f) His brother was molested by a priest at the age of nine, and at the age of seventeen committed suicide. (g) For all these reasons, he suffers from heightened fear, anxiety and distress when he encounters threats against homosexual people or vilification of them. (h) He is also particularly distressed by allegations, such as Mr Sunol published, that homosexual men are paedophiles. (i) In a letter to him dated 14 June 2012 (which was admitted into evidence) the Manager of the Secretariat of the Office of the Commissioner, NSW Police Force, advised him that according to police records for the period since 1998 no claims of sexual assaults against boys 'relating to' the Mardi Gras have been reported to police. 99In response to a question from a member of the Tribunal Panel, Mr Burns stated that he did not wish to tender psychiatric evidence regarding the psychological impact that these attacks and threats had had upon him. 100Mr Sunol's oral evidence included statements that his websites had about 13,000 'hits' per year and that each 'hit' would involve any number of people 'from one to a hundred'. He added, however, that these 'hits' did not all relate to material published by him about Mr Burns. 101Mr Sunol also included in his written and oral evidence the following assertions: (a) he did not 'hate gays'; (b) his published comments about 'evil' and 'criminal' elements in the Mardi Gras were wholly directed at the 'leaders' of this event; and (c) he viewed many of the participants in the Mardi Gras as 'victims'. 102We will now consider in turn each of the remedies sought by Mr Burns.

Vilification: injunctive relief 103In a decision to which we have already referred, Collier v Sunol [2005] NSWADT 261, the Tribunal held that Mr Sunol had unlawfully vilified homosexuals through posting on the internet publications closely resembling those that we have held to amount to unlawful vilification. On appeal by Mr Sunol (see again Sunol v Collier (EOD) [2006] NSWADTAP 51), this decision was upheld as to liability, but the Tribunal's orders by way of relief were set aside and different remedies ordered. The orders made by the Appeal Panel included injunctive orders in the following terms:- 3(a)... Within fourteen (14) days of the date of this decision, Mr Sunol is to remove from every website controlled by him, the following material: ... [the specific statements found to have amounted to unlawful vilification were quoted here] and all material to the same or similar effect concerning homosexual men, lesbians, homosexuality or the gay lobby. 3(b)... Mr Sunol is to refrain from publishing the material referred to in order 3(a) above, including statements to the same or similar effect, on any website whether or not controlled by him. 104As indicated in a later decision to which we have already referred (see Collier v Sunol [2008] NSWADT 339 at [29 - 39]), Mr Sunol did not obey the latter order. This provides no grounds for declining to make an order of a similar nature in these proceedings. 105We consider that orders such as these are warranted. The first and second of the orders that we make in these proceedings are as follows:- 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him: (a) the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of the decision; and (b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality. 2. The Respondent is to refrain from publishing the material described in Order 1 on any website, whether or not controlled by him.

Vilification: an apology 106The Appeal Panel in Sunol v Collier (EOD) [2006] NSWADTAP 51 also ordered Mr Sunol to publish an apology. Omitting matters of detail, the order was in these terms:- (3)(c)... Within fourteen (14) days of the date of this decision, Mr Sunol is to post the following apology, attributed to him, on every website controlled by him, and in addition on the websites known as...: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on... On ... I published comments on various websites concerning the gay lobby and homosexuals. On ... the ADT found that my comments were vilification because they were capable of inciting hatred or serious contempt of homosexuals and the gay lobby. The ADT also found that my comments were not published reasonably, and that they were sweeping generalisations of a highly offensive nature. I apologise for making these comments. My comments were in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public. 107As just mentioned, this order was based on findings that Mr Sunol had unlawfully vilified homosexuals through posting on the internet publications closely resembling those that we have held to amount to unlawful vilification. A comparable order is accordingly warranted in this case. 108As mentioned above, Mr Sunol has claimed more than once that he is 'not against gays' and that in his publications relating to homosexuality, including those which we have held to constitute unlawful homosexual vilification, his real purpose has been to draw the attention of the public to 'evil' and 'criminal' elements within the homosexual community generally and the Mardi Gras in particular. Although the apology that we will order must contain an unqualified acknowledgment that what he actually published vilified one or more homosexual people on the ground of their homosexuality, we see no reason why he should not be required also to state publicly what he said in these proceedings: that is, that homosexuality is acceptable as far as he is concerned. 109We consider that publication of the apology on designated sites on the internet is preferable to publication in a newspaper, as sought by Mr Burns. It is more likely to come to the attention of people who have read or heard about the publications by Mr Sunol to which the apology relates. 110Our third order in these proceedings is as follows:- 3. Within fourteen (14) days of the date of this decision, the Respondent is to post the following apology, attributed to him, on every website controlled by him: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 28 November 2012. On various dates between 26 February 2010 and 24 July 2011, I published statements on various websites concerning homosexuality and homosexual people. On 28 November 2012, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest. I apologise for publishing these statements. I acknowledge that, although I have no issue with homosexual people or homosexuality, the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

Vilification: compensation 111Mr Burns particularised as follows the harm that he claimed to have suffered on account of Mr Sunol's publications contravening section 49ZT: injury to feelings, distress, insult, anxiety and mental suffering. 112According to the case law on section 108(2)(a) of the Act, damages under this provision must be assessed according to 'compensatory' principles for which the equivalent principles within tort and contract law provide a guide, but are not 'controlling' (see Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [23 - 27], [48]). But the authorities provide little specific guidance on the approach to be adopted in cases where unlawful vilification has been established and the harm to be compensated is 'non-pecuniary' harm within the realm of injury to feelings. We have discovered only a handful of Tribunal decisions awarding damages in these circumstances. 113Some of these cases arose under section 49ZT, while others involved racial vilification under section 20C. The terms of the latter section closely parallel those of section 49ZT. 114As far as we are aware, in most of the Tribunal cases of this kind, the public act or acts held to constitute vilification comprised material aimed only at the complainant. This was the situation, for instance, in Burns v Dye [2002] NSWADT 32, Kimble & Souris v Orr [2003] NSWADT 49 and Carter v Brown [2010] NSWADT 109. But in at least two cases, damages have been awarded to complainants who were not named or otherwise identified and were not the sole target of the vilification. 115In Cohen v Harguos; Karelicki v Harguos [2006] NSWADT 209, the Tribunal held that remarks made by the respondent in a loud voice in the presence of one of three complainants amounted to unlawful vilification of a racial group to which the complainants (and others of those present) belonged. The complainant who was present told the other two complainants what the respondent had said. His remarks did not mention by name, or otherwise identify, the complainants or any other individuals, but contained only offensive generalisations about the racial group. Having received submissions about the relief to be granted, the Tribunal then held, in Cohen & anor v Harguos; Karelicki v Harguos (No 2) [2006] NSWADT 275, that the orders to be made under the provision then equivalent to section 108 should include an award of damages of $1,500 to each of the three complainants. It stated at [8] that the complainants had given evidence of being 'deeply distressed and offended' on hearing, or hearing about, the respondent's remarks and his refusal to withdraw them; that one of the complainants 'required medical assistance'; and that another 'was so upset that she was forced to go home from the social event that she was attending and felt deeply upset for months'. 116In Trad v Jones (No 3) [2009] NSWADT 318, the Tribunal found that a number of statements made on air by a prominent radio broadcaster, Alan Jones, about riots that occurred at Cronulla during 2005 amounted to vilification of Lebanese Muslims, who are a group recognised under the Act as a 'race', on the ground of their race. The complainant, a high-profile member of this group called Keysar Trad, was not named or otherwise identified in these statements. The Tribunal then held, at [234 - 241], that the remedies granted should include an award of $10,000 damages to Mr Trad on the ground that he had suffered 'hurt, humiliation and distress' on account of the broadcast. In deciding on this amount, it took account of evidence that he appeared to be 'a reasonably resilient character'. 117On appeal, the Appeal Panel held that this award of 'a modest sum' was 'not beyond the bounds of a permissible exercise of a discretionary judgment': see Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 at [96]. 118It has been observed that the awards of damages by this and other tribunals in Australia for non-pecuniary harm caused by vilification have varied between sums in the vicinity of $20,000 (for example, in Carter v Brown) and significantly smaller sums such as the amount of $1,500 awarded to each complainant in Cohen & anor v Harguos; Karelicki v Harguos (No 2) and the amount of $1,000 awarded to Mr Burns in Burns v Dye. 119We are not aware of any awards of damages for vilification published on the internet. The closest analogy in the cases that we have just discussed would be the vilification published on air by Alan Jones. Although potentially the number of readers of internet publications vastly exceeds the number of people who listen to Mr Jones's broadcasts, there are in our opinion several reasons why the injury to feelings inflicted by vilification communicated in such broadcasts should be regarded as more serious than the injury that would be inflicted through the publication by Mr Sunol of equivalent material on the internet. 120We hold this opinion even though an internet publication may remain easily accessible to users for an indefinite period. This is not the case with a radio broadcast by Mr Jones, even if it can be retrieved for a short period via the internet. Our reasons include the following:- (a) Mr Jones is a highly successful communicator by mass media who attracts a regular audience of many people and exerts, or is at least believed to exert, a significant influence over the opinions of many of them. (b) His statements, particularly if controversial, are likely to be repeated to many other people, both through other mass media and by other means. (c) A person (such as Mr Trad) affected by vilification published on air by a popular broadcaster (such as Mr Jones) will be very conscious of these matters and all the more distressed for that reason. (d) The high profile of such broadcast material is in very strong contrast to the relative insignificance and low profile of virtually any publication on the internet, given that it will be only one of innumerable publications made on countless websites. (e) Mr Sunol's publications, of which the extracts quoted above convey the flavour reasonably well, were not only inconspicuous but also likely to gain little or no credibility with internet users - excepting those who sympathise with him - on account of their incoherence, their repetitiveness and the extent to which they revealed the strongly held beliefs that underpinned them. 121We accept Mr Burns' testimony regarding his special sensitivity to vilification of homosexuals, even though it was not supported by medical evidence. It is not open to Mr Sunol to argue that because of this sensitivity no award of damages for injury to feelings should be made. Our rulings in Mr Burns' favour on both these points are in line with prior decisions of the Tribunal: see for instance Carter v Brown [2010] NSWADT 109 at [163]; Burns v Dye [2002] NSWADT 32 at [103]. 122We wish to add, by way of dictum, that 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, in our opinion, 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. If a requirement along these lines is not imposed, analogous to the requirement applying when an individual plaintiff seeks damages for himself or herself on the ground of public nuisance, a choice between two undesirable outcomes must be made. The first is that once an award of compensation, or possibly a handful of awards, has been made to an individual complainant or a handful of complainants, the Board or the Tribunal may well feel impelled to reject claims for damages brought subsequently by other members of the vilified group or class, on the ground that the respondent has already been ordered to pay an appropriate amount as compensation. The second is that the respondent will be ordered to pay compensation to an unfairly large number of complainants. 123We realise that this dictum is in conflict with the view apparently held by the Tribunal and the Appeal Panel in Trad v Jones (No 3) [2009] NSWADT 318 and Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19. But the considerations that we have just outlined do not appear to have been raised in those proceedings. 124We accept Mr Burns' assertion that he experienced significant distress, humiliation and anxiety when on 5 November 2010 he first encountered vilification of homosexuals by Mr Sunol through following a link on his own Facebook page. According to his first complaint to the Board, lodged on 8 November 2010, the publications in the first of the above lists that he came across on 5 November were nos. 3 to 6. We have held that two of these, nos. 4 and 6, vilified homosexuals unlawfully. It can be inferred that Mr Burns had no indication from what he had been viewing previously that offensive publications such as these would appear before his eyes. 125The same should be said of publication no. 8 in the first list, which we have also held to contravene section 49ZT. This is because it appeared, on Mr Burns' own website. In the absence of evidence to the contrary, Mr Burns must be presumed to have had no prior warning of what it contained. 126According to the evidence before us, however, the remaining publications contravening section 49ZT - nos. 2, 7, 10 (in part) and 14 - were not 'thrust' upon Mr Burns and their offensive nature could not have been a matter of surprise to him. Each of them was accessible on one of Mr Sunol's websites or (in the case of no. 14) through a link appearing on one of those sites. In the absence of evidence to the contrary, it must be inferred (a) that Mr Burns came across them because he chose of his own accord to log in to a site that to his knowledge was maintained by Mr Sunol, and (b) that when he did so he knew of the likelihood that their contents would be hurtful to him. 127According to general principles governing compensation in tort and contract cases, a party entitled to compensation has a duty to take reasonable steps to mitigate the damage or loss caused by the relevant conduct of the opposing party. This duty to mitigate may be applicable in assessing damages under the Act, but there is no hard-and-fast rule that it must be applied: see Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [43 - 46]. 128It would not be appropriate for us 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 homosexuals, failed to mitigate the damage caused to him by these publications and should therefore be unable to recover damages for the harm that they did to him. No such proposition was put to him at the hearing, either by Mr Sunol or by us. If it had been, the question whether he could meet it by contending that as a campaigner for homosexual rights he felt morally obliged to act in this way would arise for determination. 129We do 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. There is a marked contrast between this situation and that of complainants who are vilified (as Mr Burns himself was in Burns v Dye [2002] NSWADT 32) by conduct that they cannot avoid witnessing. 130Mr Burns' awareness, following his initial explorations of Mr Sunol's websites, that they were likely to contain material offensive to homosexuals is important for another reason. This is that his foreknowledge of this likelihood would have enabled him to prepare emotionally for encountering such material. The same consideration applies a fortiori to his decision, on or about 24 July 2011, to click on the link to the 'Trephination' website provided on one of Mr Sunol's sites and thereby to come across publication 14. 131It follows 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, or at a linked site such as 'Trephination', must be assessed at a markedly lower level than the damage caused when (on 5 November 2010) he first found offending material on one of Mr Sunol's sites or when (on 8 February 2011) he found such material posted by Mr Sunol on his own site. 132Taking all these matters into account, we are firmly of the opinion that the damages to be awarded to Mr Burns under section 108(1)(a) of the Act, being on account of 'injury to feelings, distress, insult, anxiety and mental suffering' caused by the seven publications by Mr Sunol that contravened section 49ZT, should be towards the lower end of the 'scale' applicable to such forms of harm. We assess these damages at $3,000. We regard nos. 4, 6 and 8 as the publications to which most of this award should be attributed. 133Our fourth order in these proceedings is accordingly as follows:- 4. The Respondent is to pay to the Applicant the sum of $3,000 as compensation for the harm caused to him by the publication, amounting to homosexual vilification, of the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of this decision.

Victimisation: compensation 134Amongst the remedies that were claimed by Mr Burns on the ground of victimisation and are permissible under the Act, we will consider compensation first, as it would appear to be the primary remedy contemplated by the Act. 135In a statement of evidence relating specifically to the two publications by Mr Sunol (nos. 7 and 8) that we have held to constitute victimisation, Mr Burns claimed that the public portrayal of him contained in these publications caused him to feel 'deeply affronted', 'hurt', offended', 'upset' and 'alienated' and also to experience 'pain and anger' to a degree that it might be 'difficult for a non-homosexual to understand'. We will treat these emotional reactions as signifying the specific kinds of injuries to feelings for which he claims compensation. 136These instances of non-pecuniary harm do not include damage to reputation. Like the complainant in Carter v Brown [2010] NSWADT 109 (see paragraph [154], quoted above at [69]), Mr Burns did not tender any evidence specifically directed to showing that Mr Sunol's publications contravening the prohibition against victimisation caused any significant damage of this nature. We are aware that in defamation cases damage to reputation is presumed and that in the two publications involving victimisation several of the epithets applied to Mr Burns - for example, 'liar', 'common thief' and 'serial abuser' of the court system in New South Wales - were defamatory beyond any doubt. But these are not defamation proceedings, and in view of what we said earlier (at [119 - 120]) about internet publications generally and those of Mr Sunol in particular, we are satisfied that any damage caused to Mr Burns' reputation by the publications victimising him was not substantial. 137In our assessment of damages, a number of the principles stated and factors outlined in the preceding section of this decision are relevant. In particular, we should take into account in Mr Sunol's favour the inconspicuous nature of all individual publications on the internet, the fact that the two relevant publications were not 'thrust' upon Mr Burns and the fact that they occurred on a date (10 December 2011) well after he became aware that if he logged into one of Mr Sunol's websites he was likely to encounter material offensive to homosexuals. 138The situation regarding these two publications is, however, materially different in a number of important respects from the publications by Mr Sunol contravening section 49ZT. In the first place, they both identified Mr Burns by name as their target. On the other hand, they did not vilify him on the ground of his homosexuality. Unlike other publications by Mr Sunol regarding Mr Burns, they made no express mention of this aspect of him. It follows that, despite an implication to the contrary in his account of how they affected him, his special sensitivity to homosexual vilification cannot be treated as a significant factor in his favour when assessing the damages due to him. 139We understand that, as with vilification cases, the awards of damages by this and other tribunals in Australia for non-pecuniary harm caused by victimisation have varied between sums in the vicinity of $20,000 and significantly smaller sums such as the amount of $1,000 only. 140Although the epithets applied by Mr Sunol to Mr Burns in the two relevant publications were highly abusive and defamatory, we believe again that an award at the lower end of this 'scale' is appropriate. We assess the damages to be paid on the ground of the victimisation involved in these publications at $3,500. 141Our fifth order in these proceedings is accordingly as follows:- 5. In addition to the amount stipulated in Order 4, the Respondent is to pay to the Applicant the sum of $3,500 as compensation for the harm caused to him by the publication, amounting to victimisation, of the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision.

Victimisation: an apology 142For much the same reasons as underlie our order that Mr Sunol must publish an apology for his conduct amounting to homosexual vilification, we believe that a private apology for his two publications victimising Mr Burns is called for. 143Our sixth order in these proceedings is as follows:- 6. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders. Mr Gary Burns PO Box 77 PADDINGTON NSW 2021 Dear Mr Burns The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 28 November 2012 and entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful. I offer my apologies for that behaviour. Yours faithfully John Sunol.

Victimisation: injunctive relief 144As stated earlier, we cannot order Mr Sunol to give a 'commitment' such as Mr Burns claimed. If instead an injunctive order were to be made, the conduct restrained would have to be limited to 'conduct rendered unlawful by this Act or the regulations'. We see no point in formally ordering Mr Sunol to refrain from conduct - i.e. victimisation - that the Act itself expressly prohibits in section 50. 145It is, however, both permissible under the Act and appropriate in the circumstances to order Mr Sunol to remove from every website controlled by him the two publications victimising Mr Burns. 146Our seventh order is as follows:- 7. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision.

147In Points of Claim lodged in file 111024, Mr Burns sought an order for costs. 148His claims in this and the associated files have succeeded in part only. No other ground for ordering costs under the applicable provision (section 88 of the Administrative Decisions Tribunal Act 1997) is apparent. Accordingly, the parties, who in fact were self-represented at the hearing, must pay their own costs in respect of any representation that they obtained at any other stage of the proceedings.

Our orders 149Restated in a single paragraph, the orders that we make are as follows:- 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him: (a) the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of the decision; and (b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality. 2. The Respondent is to refrain from publishing the material described in Order 1 on any website, whether or not controlled by him. 3. Within fourteen (14) days of the date of this decision, the Respondent is to post the following apology, attributed to him, on every website controlled by him: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 28 November 2012. On various dates between 26 February 2010 and 24 July 2011, I published statements on various websites concerning homosexuality and homosexual people. On 28 November 2012, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest. I apologise for publishing these statements. I acknowledge that, although I have no issue with homosexual people or homosexuality, the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public. 4. The Respondent is to pay to the Applicant the sum of $3,000 as compensation for the harm caused to him by the publication, amounting to homosexual vilification, of the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of this decision. 5. In addition to the amount stipulated in Order 4, the Respondent is to pay to the Applicant the sum of $3,500 as compensation for the harm caused to him by the publication, amounting to victimisation, of the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision. 6. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders. Mr Gary Burns PO Box 77 PADDINGTON NSW 2021 Dear Mr Burns The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 28 November 2012 and entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful. I offer my apologies for that behaviour. Yours faithfully John Sunol. 7. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2012

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