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[2014] NSWCATAD 2
NCAT Administrative and Equal Opportunity
2013-07-05
Ms J
Original judgment source is linked above.
t out at [35] above 11. Mr Sunol is to refrain from publishing the material described in Order 10, or material to the same or similar effect, on any website, controlled by him. 12. Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns as follows: Mr Gary Burns PO Box 77 PADDINGTON NSW 2021 Dear Mr Burns The NSW Civil and Administrative Tribunal, in a decision dated 22/1/14 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 13. In default of compliance with Orders 10, 11 or 12, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders. 14. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $3,000 for the victimisation. 15. This matter is to be re-listed on 21 February 2014 at 9.30am to determine whether Mr Sunol has complied with these Orders. Catchwords: ANTI-DISCRIMINATION - racial vilification and victimisation - meaning of incite Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Racial and Religious Tolerance Act 2001 (Vic) Cases Cited: Bogie v The University of Western Sydney (1990) EOC 92-313 Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42 Burns v Laws (No 2) [2007] NSWADT 47 Category: Principal judgment Parties: Garry Burns (Applicant) John Sunol (Respondent) Representation: In person (Applicant) In person (Respondent) File Number(s): 131012
Introduction 1Mr Burns complains that Mr Sunol has vilified him and other homosexual men in breach of the Anti-Discrimination Act 1977 (AD Act). Most of the allegedly vilifying publications were on Mr Sunol's blog - www.johnsunol.blogspot.com.au. Mr Burns also complains that Mr Sunol has victimised him in breach of the AD Act for complaining about him. The alleged victimisation is derogatory comments about Mr Burns on Mr Sunol's website and in letters and emails. 2Mr Burns has made numerous complaints of vilification and victimisation against Mr Sunol. In 2012 the Administrative Decisions Tribunal (ADT), as it then was, determined eight complaints in two decisions: Burns v Sunol [2012] NSWADT 246 and Burns v Sunol (No 2) [2012] NSWADT 247. We will call the first of these decisions "the Tribunal's 2012 decision". In both those cases the ADT found parts of Mr Burns' complaints to have been substantiated. Orders were made for Mr Sunol to apologise, remove the offending material from his website, refrain from publishing the same or similar material and to pay damages by way of compensation. Mr Burns says Mr Sunol has not complied with these orders. 3This decision relates to complaints which were heard on 5 July 2013. Since then three further matters involving the same parties and similar allegations of vilification and victimisation have been heard or listed for hearing. 4On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to hear complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal. In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, this complaint is a "part heard" proceeding. The provisions of the AD Act continue to apply.
Refusal of adjournment 5On the morning of the hearing on 5 July 2013, Mr Sunol faxed a "medical certificate" to the Tribunal from Dr N Humphreys stating that he had examined Mr Sunol on 4 July 2013. Dr Humphreys wrote that Mr Sunol had a "medical condition" and would be unfit for duty or court from 4-6 July 2013. A letter from Mr Sunol accompanying that certificate stated that, "I am not well enough to attend the Burns v Sunol hearing on July 5th 2013. I would like to apply for an adjournment of this case . . ." When Mr Sunol telephoned the Registry on the morning of the hearing, a staff member told him he would have to make his application for an adjournment to the Tribunal by phone. When we telephoned Mr Sunol at the beginning of the hearing he stated that he had a "bug in his throat" and that he had been in hospital. He told us that he was on the bus on the way to the hospital to get his "hospital discharge" document. 6Mr Burns opposed the adjournment application quoting a statement on Mr Sunol's blog dated 30 June 2013 in which he said that he was going to apply for an adjournment. 7We refused Mr Sunol's application for an adjournment because we were not satisfied that Mr Sunol was genuinely unable to participate in the hearing because of a medical condition. We offered Mr Sunol the opportunity to participate in the hearing by phone. He accepted that suggestion and participated with no sign of any physical incapacity.
Homosexual vilification provisions 8It is unlawful to publicly vilify a person on the ground of homosexuality. Section 49ZT of the AD Act states that: (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. 9A public act is defined in s 49ZS as follows: "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. 10Certain exceptions are set out in s 49ZT(2): (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. 11The party seeking to prove an exception has the onus of proof: AD Act, s 104. Mr Sunol did not rely on any of the provisions in s 49ZT(2) in this case. 12Mr Burns has standing to make a complaint of homosexual vilification because he is a homosexual person: AD Act, s 88.
Introduction 13In 2012 and 2013 the Court of Appeal interpreted the homosexual vilification provisions and relevantly identical provisions in relation to racial vilification. 14In March 2012, the Court of Appeal handed down a decision in Sunol v Collier (No 2) [2012] NSWCA 44. In that case Mr Sunol submitted that the provision making homosexual vilification unlawful was invalid under the Australian Constitution because it infringed the implied freedom of communication about governmental or political matters. In the course of rejecting that proposition, the Court of Appeal (Bathurst CJ, Allsop P and Basten JA) discussed the meaning of "incite" in s 49ZT. 15All three Justices agreed on the following two propositions which are uncontroversial: (1)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. (2)It is not necessary for a contravention that a person actually be incited. The test is an objective one. 16At [30] Bathurst CJ (with whom Basten JA agreed) was also prepared to proceed on the basis that it is not necessary to establish an intention to incite. That issue was not finally determined.
Ordinary or reasonable member of audience? 17At [41] Bathurst CJ provided the following summary of the principle when determining whether the public act incites the relevant emotion: 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. 18At [34] Bathurst CJ explained his preference for the term "ordinary member" of the class, rather than an "ordinary reasonable" member or simply a "reasonable member": [T]o 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. 19This sentence generated further judicial comment both by Allsop P, another member of the Court in Sunol v Collier (No 2), and by Ward JA in Jones v Trad [2013] NSWCA 389. 20Allsop P agreed with Bathurst CJ in relation to the construction of s 49ZT(1) but made the following observations about the relevant audience at [61]: 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. 21As Allsop P was in the minority on this point, the views of Bathurst CJ and Basten JA prevail. 22In November 2013, the Court of Appeal considered the meaning of the word "incite" in relation to s 20C(1), the relevantly identical racial vilification provision: Jones v Trad [2013] NSWCA 389. The appeal related to comments and quotes the broadcaster Alan Jones had made on radio station 2GB in relation to a group of Lebanese men. Ward JA, with whom Emmett JA and Gleeson JA agreed on this point, did not consider that anything turned on the distinction between the "ordinary" member of the audience and the "ordinary reasonable" member of the audience in the circumstances of that case. Rather, Ward JA considered at [53] that the "nub of the dispute in the present case goes to the identification, or more precisely the contended absence thereof, of the relevant audience to which the . . . broadcast was directed." 23In Jones v Trad supra at [77], there was evidence as to the likely demographic composition of Alan Jones' audience at the time of the relevant broadcast. Ward JA concluded at [61] to [63] that the Tribunal at first instance had erred in law by firstly, failing to make a finding identifying the audience in relation to which the likely effect of the public act could be assessed and secondly, by failing to consider whether the broadcast would reach the mind of an ordinary (or ordinary reasonable) member of that audience as something which would encourage the requisite emotion. Her Honour quoted Bathurst CJ's view in Sunol v Collier (No 2) that the decision maker should consider the particular class to whom the speech or other public act is directed. Her Honour also relied on the following passage from Nettle JA's judgment in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 at [16]. In that case the Supreme Court of Victoria was interpreting s 8 of the Racial and Religious Tolerance Act 2001 (Vic), which also prohibits certain conduct which "incites hatred against" a person or group of people: If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience.
Capacity or effect? 24Another issue which arises when interpreting vilification provisions is whether the focus should be on the capacity of the public act to incite the relevant emotion or the objective effect of the public act on the audience. In the Tribunal's 2012 decision (Burns v Sunol [2012] NSWADT 246) at [15] the Tribunal quoted passages from Burns v Laws (No 2) [2007] NSWADT 47. In that case the Tribunal suggested that the appropriate test was whether the public act would have had the "effect" of inciting a person to experience one of the relevant reactions. The Tribunal went on to make the point that if terms such as "capacity" or "tendency" are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or possible effect. In the 2012 decision, the Tribunal highlighted the potential ambiguity of the terms "capable" and "capacity" but applied the test in the alternative. For example, at [42] the Tribunal concluded that each of the publications has the "capacity to incite" or the "effect of inciting" the relevant emotions.
Hatred, serious contempt and severe ridicule 25The words "hatred", "contempt" and "ridicule" are to be given their ordinary English meaning, keeping in mind that the words "contempt" and "ridicule" are qualified by the adjectives "serious" and "severe" respectively. These adjectives call for an evaluative judgment on the part of the tribunal of fact: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556.
Causation 26The phrase "on the ground of" does not require the homosexuality of the person or group in question to be the sole or a substantial reason for the incitement. It is sufficient if homosexuality is one of the real, genuine or true reasons: Jones v Trad supra at [98]; Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].
Conclusion 27Based on these decisions, as a general principle, vilification provisions should be interpreted conservatively in keeping with the high value that the common law places on freedom of expression: Sunol v Collier (No 2) [2012] NSWCA 44 at [59]; Jones v Trad [2013] NSWCA 389 at [27]. When considering whether a matter is in breach of s 49ZT(1), the following questions need to be addressed: (1)What is the relevant act and is that act a "public act"? (2)Does that act incite serious hatred towards, serious contempt for or severe ridicule of a person or group of people? (3)Is the incitement on the ground of the homosexuality of the person or members of the group? 28In relation to the second question, the following principles of construction should be applied: (1)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. (2)It is not necessary for a contravention that a person actually be incited. The test is an objective one. (3)It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must have the capacity or effect of inciting such emotions in an ordinary member of the class to whom it is directed. (4)If there is specific evidence about the audience, it will be necessary to make a finding of fact as to the nature of the audience to whom the public act is directed. (5)It will also be necessary to consider whether the public act would reach the mind of an ordinary member of that audience as something that would encourage the requisite emotion.
Introduction 29The period of the complaint is 9 November 2012 to 2 January 2013. Mr Burns complains that several publications on a blog - www.johnsunol.blogspot.com.au, and letters and emails Mr Sunol wrote, breach s 49ZT. We have set out the texts verbatim including all spelling and grammatical errors. In some cases we have included immediate context and bolded the relevant parts. As was said in the Tribunal's 2012 decision at [32], the message that the publication conveys must be determined in isolation, without reference to the messages conveyed by any of the other publications. But each publication must be read in context.
Content of publications 30First publication - 9 November 2012, text on website: Church cover up over child sex abuse in Newcastle Cathlic church and other places Yes I do agree that some preisets have been in cover ups over child sex abuse and being aired lately but how much more those criminals that run that Sydney gay and Lesbian Mardi Gras have been in over drug dealing an sexually assualting young children in this Mardi Gras in Sydney in March each year. Then the criminals that run this event get prosecuted for the intensive child abuse and drug dealing in this annual this event these form of accuasions are very serious and need to cover all walks of society and any child abuse anywhere needs to be prosecuted and broughth before the courts on criminal charges by the state police. Then do a Royal commission on child sex abuse in all walks of society, starting with criminal checks on all Mardi Grass leaders and child abuse investigations by appropriate police into the Sydney gay and Lesbian Mardi Gras and child sex abuse. Not only the church - all pars of society need to be investigated and all purpentrators brought before the courts. On criminal charges. . 31Second publication - 10 November 2012, text on website: I belieive that a child peeophile Royal commission should not only be on the catholic chucvh but also in other parts of society, including the Gay and Lesbian Mardi Gras and associated events namely the sleaze ball as this is where the real criminals in this area harbour themselves 32Third publication - 10 November 2012,YouTube video on website: Hello All . . . Futhermore one very major important thing that came across the news. I'll talk about that. I'll be doing my you tube each week as well so I'll talk about issues like this. The roman catholic church - they want to put a Royal Commission through for child sex paedophilia especially the church in Newcastle where I live. I say fair enough if catholic priests have done things like that they need to be brought in front of, to be brought, to be made accountable for it. Because anyone who does child paedophilia needs to be made accountable. But I'll state right now we need a Royal Commission ight through the whole of society. I'll tell you right now that Mardi Gras in Sydney each year is full of paedophiles that do wicked things., full of drug dealers that do wicked things. That also needs to be investigated. So lets just not do investigations across the church. Lets do an investigation right across the board. Anyone found to have sex with a kid with a child under the age of 18 whether or not they consent to it ought to be brought to account for what they're doing. Anyone found to have molested anyone of any state any where should be brought to account. So lets just not have the paedophiles in the church. Maybe it has happened, yes, I'm not saying it hasn't but also other places as well and especially the homosexual Mardi Gras that is full of paedophiles and drug dealers. 33Fourth publication - 5 December 2012, text on website under "Leave a message": Never put me in this child molestors and pedophiles event Sydney gay mardi Gras or all hell will break out as this is just a child molesters and paedophiles Happy parade with three quarter and half naked people appearing in this jeering and making fun at the nuclear family F Gary Burns Rodney understand me now F Gary Burns that thieving rotten mongrel can go and whistle to the pinkies before I will take not of these orders understand me now! I have nothing else to say to you at all what so ever. . Rod: I know who you are and you are only a dirty filthy lying cheating faggot as well and I will not be playing ball buster, now or ever I do not care No Rodney not until I get material in the mail from the ADT and Gary Burns is plain rotten thief I will not apologize with out a court order come to me in person in the mail. I have nothing to remove and I might even fight him back yet with an appeal I was set up by this thief of a Gary and that is all he is a liar cheat and thief! 34Fifth publication - 6 December 2012, 3 page handwritten letter from Mr Sunol to Mr Burns dated 4 December 2012 containing the following two sentences, one on the first page and one written in red ink at the end: Buster - you are nothing but a thieving rotten piece of living crap who abuses the law and steals money off your victims by false accusations in civil tribunals. Gary you are a wicked man and unless you give up your homosexuality and come to Christ for forgiveness you will rot in hell with all the other poofs. 35Sixth publication - 8 December 2012, on website under heading "Leave a message": Gary Burns did win yes but I am not going to pay him this money at all. He can not force me to as he is only a common their who manipulates the civil law to get money off people for telling lies. 36The ordinary member of the audience to whom this message is directed would understand the word "their" in context to be a typographical and/or spelling error and that Mr Sunol intended to write the word "thief". 37Seventh publication - 9 December on website under the heading "Leave a message": Rodney; Shut you big trap buster as you do not know what your are on about. One for a start the house in NOT in my name it is in a trust company and this needs to be broken Two the sherrif can only take what is mine and Iput it all in my wifes name . . and three Gary is a thieving rotten lying faggot who told lies in court to fasly obtain money and I don not recognisee him or Henry Colliers case . . 38Eighth publication - 14 December 2012, on website: I will never settle the matters with Burns as he is loaded full of demon spirits and has no desire to settle with me no matter what I do. I need to have him foce to settle these matters and shut his big trap through the courrs. Also Burns has no say over my life and he will be forced to shut his big trap, that dirty filthy faggot who is full of demon spirits from his homosexuality. 39Ninth publication - 1 January 2013, on website Stuff the poofters and gay parasites like Gary Burns 40Tenth publication - 2 January 2013 on website under "Leave a message": I do not want to talk about Gary any more as he is a dirty filthy trouble making faggot and that is all he is. I will state no more but the cases are now finished and that is it. 41Eleventh publication - 1 January 2013, email to Tony under the subject heading: "You are a bunch of faggoty dirty fucken mongrel bastards": I will go you mob fromnow on. You have successfully taken down my twiter and facebook accounts through your lies but I will get up again and not stop I declare full sale all out war with you idiots and fools andf you faggot lobers can go and fuck Gary Burns in the ass you filthy mongrels yours John 42Tony forwarded this email to Mr Burns.
What is the relevant act and is that act a "public act" of Mr Sunol's? 43The relevant acts have been set out above. Each of the publications on Mr Sunol's web page are public acts within the definition of that term in s 49ZS. They are communications to the public because any member of the public can access Mr Sunol's blog and read text and view videos that are on that website: Jones v Toben [2002] FCA 1150 per Branson J at [73] - [75]. 44Mr Sunol denies ever writing the word "faggot" (a highly pejorative term for a gay male) on his website. He says he only uses that word in emails and letters. Despite Mr Sunol's denials, the word "faggot" appears on his blog in surrounding text which Mr Sunol does not deny writing. We are satisfied that he wrote that word wherever it appears. 45The eighth publication is partly a response to a post by "Rodney" saying, "Are the police wanting to talk to you about harassing Mr Burns? Mr Sunol if I was you I'd settle all matters with Burns and move on with your life. Burns is not going away." We reject Mr Sunol's submission in relation to the eighth publication that: I was speaking to this man via email who was crating trouble and to stir me up. Yes I did say it but not to the public and it is only an private conversation and would hurt no one; I was angry with Gary who abuses the law and is out to take me to court to gain money unethically and through false accusations. 46Contrary to Mr Sunol's assertion, we are satisfied that Mr Sunol wrote these words on his website. They constitute a public act. 47In relation to the ninth publication, this comment is part of a longer post to "John Ellis" apparently responding to a message that he sent via the website. Again Mr Sunol denies writing this comment on his website. In a letter to the President of the Anti-Discrimination Board he says: Another private conversation with a person who put online what I wrote in reference to and it is being used to set me up and I believe that Gary is part of this. 48We are satisfied from the print out provided by Mr Burns that Mr Sunol published this comment on his publicly accessible website and that it is a public act. 49The fifth publication is a letter to Mr Burns. It is not a public act because it is a private letter addressed to Mr Burns. This part of Mr Burns' complaint is not substantiated. 50In relation to the eleventh publication, this email was sent by Mr Sunol to Tony B who forwarded it to Mr Burns. Neither the sending of the email to Tony or the forwarding of that email to Mr Burns is a public act. Mr Burns says that the email was then "printed via a public act on zgeek's." It is clear from the print out that Tony, or some other person, has posted the content of the email on his blog. Under the heading "John Sunol is deranged", the following text appears: I promised John Sunol that I would not take his abuse and publish any threatening emails I get from this turd of a human being. I have not checked my account for a while and this was sitting in my inbox. 51The content of Mr Sunol's email is then set out. We are not satisfied that the publication of the content of the email on www.zgeek.com was a public act of Mr Sunol. As he is the only respondent in these proceedings, Mr Burns' complaint of homosexual vilification against him in relation to this publication is not substantiated. 52In summary, all the publications, apart from the fifth and the eleventh, are public acts of Mr Sunol.
Do the remaining acts incite serious hatred towards, serious contempt for or severe ridicule of a person or group of people on the ground of homosexuality?
Introduction 53Of the remaining publications, the first, second, third, fourth (paras 1 and 3), seventh, eighth (para 2), ninth and tenth publications constitute homosexual vilification. The fourth (paras 2, 4 and 5), sixth and eighth (para 1) are not substantiated. 54Mr Sunol submits that none of his publications incite hatred, serious contempt or severe ridicule against a person or group of people on the ground of their homosexuality. He says that was not his intention. He does not consider all members of the gay community to be paedophiles or drug dealers, but he says he knows "for a fact" that pedophiles "roam" at the Mardi Gras and that "drugs are heavy". Mr Sunol says, "I was not vilifying but stating what I think of the event, not the gays, this has nothing to do with gays." 55Mr Sunol's understanding of what he said, or meant to say, is irrelevant. The words themselves are the public act, not what Mr Sunol intended to say or his subsequent interpretation of his words: Burns v Sunol (No 2) supra at [38] and [39]. 56The publications on Mr Sunol's website were directed to internet users. Anyone who uses the internet was able to access his website and read the text. Internet users are the class of persons to whom the text is directed. The Tribunal made the same finding in its 2012 decision: We 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. 57Similarly, in this case, there is no evidence as to the nature of the particular audience to whom the publications were directed. We simply do not know whether those who actually read the text or viewed Mr Sunol's YouTube clip were more or less responsive than ordinary internet users to his statements.
First publication 58In relation to the first publication, referring to people as "criminals", and saying that they have been "drug dealing and sexually assaulting young children in the Mardi Gras" are extremely serious allegations. While Mr Sunol says that he knows such people are involved in these activities he has not provided any details about those allegations and has effectively accused all those running the Mardi Gras of these crimes. There is a very high level of social stigma attached to being accused of being a paedophile and/or a drug dealer. Mr Sunol goes on to urge that these people be prosecuted and subjected to criminal checks and investigations. Accusing people of such serious crimes and urging that action be taken against them, has the capacity or effect of inciting an ordinary internet user to hatred and/or serious contempt for those people. 59The publication relates to those who "run"' the Mardi Gras and the Mardi Gras "leaders". We take judicial notice of the fact that the vast majority of people who organise and participate in the parade (and the Sleaze Ball) are homosexual. In Burns v Sunol [2012] NSWADT 246 at [57], the Tribunal held that such statements targetting "the leaders" or "those who run" the Mardi Gras do not incite hatred, serious contempt or severe ridicule "on the ground of homosexuality". The Tribunal said: We 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. 60The subsequent decision in Jones v Trad [2013] NSWCA 389 clarified the causation test. The test is not whether homosexuality was the sole or a substantial basis for the incitement. It is sufficient if homosexuality is one of the real, genuine or true reasons for the incitement: Jones v Trad supra at [98]; Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]. Applying that test, we have reached a different view from that reached by the Tribunal in relation to similar publications in the Tribunal's 2012 decision. 61We accept that there is more than one reason for Mr Sunol making these comments. He has the unshakeable belief that the "leaders" of the Mardi Gras have engaged in criminal activities. The Mardi Gras is an event run by homosexuals and, although Mr Sunol denies it, that fact has contributed to his belief about their engagement in criminal activities. It is one of the real, genuine or true reasons for the incitement. He singles out Mardi Gras leaders as the place to start when investigating these alleged criminal activities and implies that they are even more culpable than some Catholic priests ("how much more these criminals that run that Sydney Gay and Lesbian Mardi Gras"). 62This publication constitutes homosexual vilification.
Second publication 63The second publication alleges that criminal activities are taking place "in the Gay and Lesbian Mardi Gras and associated events". Mr Sunol does not single out the leaders of the Mardi Gras but makes more general allegations. Writing that "the real criminals" in the area of child paedophilia "harbour themselves" in the Mardi Gras and urging that a Royal Commission investigate potential child paedophilia in the Mardi Gras has the capacity or effect of inciting hatred or serious contempt in an ordinary internet user. The implication is that homosexuals are seeking refuge in the Mardi Gras and are free to commit the abhorrent criminal act of child paedophilia in that environment. Mr Sunol is again urging, not just an investigation, but a Royal Commission. 64These comments are directed to people participating in the Gay and Lesbian Mardi Gras and associated events, namely the Sleaze Ball. One of the real, true or genuine reasons for making these comments is the homosexuality of the people participating in these events. 65This publication constitutes homosexual vilification.
Third publication 66The third publication is a YouTube video of Mr Sunol engaging in a monologue expressing similar sentiments to those in the third publication. He states that the Mardi Gras is "full of paedophiles that do wicked things, full of drug dealers that do wicked things" and that these acts need to be investigated. Even without the adjective "wicked" in the second passage, the seriousness and abhorrence of the alleged crimes satisfies us that those words are capable or would have the effect of prompting the relevant emotion in the ordinary person who uses the internet. Again the reference to the Mardi Gras, an event celebrating homosexuality, satisfies us that the incitement was on that ground.
Fourth publication 67This text was posted on Mr Sunol's website about a week after the publication of the Tribunal's 2012 decisions on 28 November 2012. In those decisions the Tribunal ordered Mr Sunol to apologise, remove the offending material from his website, refrain from publishing the same or similar material and to pay damages to Mr Burns by way of compensation. We are satisfied that the orders referred to in the text are the orders made by the Tribunal on 28 November 2012. 68The fourth publication can be divided into three sections. The first paragraph is about those who take part in the Mardi Gras parade. The second, fourth and fifth paragraphs relate to Mr Burns and the third paragraph concerns a person called "Rod" or "Rodney". 69In relation to the first paragraph, this text, ending with the words "Happy parade" is identical with text that Mr Sunol published on 3 March 2012. That publication was the subject of a decision in the Tribunal's 2012 decision. The Tribunal concluded at [31] that the use of the words "child molestors and paedophiles" 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." We make the same finding in this case. 70The Tribunal also concluded that these comments were directed towards a homosexual group (participants in the Mardi Gras). The "ground" on which the publication incited hatred and/or serious contempt was the homosexuality of the person or the group. 71Paragraph three relates to "Rod" who Mr Sunol refers to as "a dirty filthy lying cheating faggot". Similar comments were held to constitute homosexual vilification in the Tribunal's 2012 decision. In that case, the following publication was under consideration: Dogwomble you are a trouble making bastard of a dirty and filthy minded faggot and poof. 72The Tribunal held at [44] to [47] that the words "dirty and filthy minded faggot and poof" is very strong and abusive language, inciting not just dislike, but hatred and/or serious contempt of homosexuals. Similarly, in this case, the words "dirty filthy lying cheating faggot" is very strong and abusive language inciting hatred and/or serious contempt. A real or genuine ground for that incitement is Rod's homosexuality. 73Paragraphs 2, 4 and 5 of publication 4 relate to Mr Burns. This abusive and insulting language incites hatred or serious contempt against Mr Burns. But it does not do so on the ground of Mr Burns' homosexuality. Mr Sunol is insulting and abusing Mr Burns because he has brought proceedings against him in the Tribunal. Homosexuality is not one of the real, genuine reasons for these words. 74This part of the complaint of homosexual vilification is not substantiated.
Sixth publication 75This comment, which appears to be in response to a comment made by someone else, does not constitute homosexual vilification because it was not made on the ground of homosexuality. There is no direct or indirect reference to Mr Burns' homosexuality. This part of Mr Burns' complaint is not substantiated.
Seventh, ninth and tenth publications 76These publications use the words "faggot", "poofter" or "parasite" and "demon spirits" as well as derogatory adjectives such as "dirty" and "filthy". This highly insulting and abusive language has the capacity or effect of inciting hatred and/or serious contempt against Mr Burns on the ground of his homosexuality.
Eighth publication 77The first comment does not refer directly or indirectly to Mr Burns' homosexuality and is not made on the ground of homosexuality. This part of the complaint is not substantiated. 78The second comment is substantiated. The use of the word "faggot" and abusive and derogatory terms such as "dirty", "filthy" and "demon spirits" means that this publication has the capacity or effect of inciting hatred or serious contempt in the mind of the ordinary internet user.
Victimisation - legal principles 79It is unlawful for a person to victimise (or punish) another person because he or she has complained of discrimination or done certain other things listed in s 50 of the AD Act: (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. 80To prove victimisation, Mr Burns must establish the following: (a)he did one of the things referred to in sub-paras (a) to (d); (b)Mr Sunol caused him to undergo or experience something; (c)he suffered some consequential detriment; and (d)that detriment occurred on one of the grounds set out in sub-paras (a) to (d): Carter v Brown [2010] NSWADT 109 at [131] - [133]. 81The concept of "detriment" was discussed in detail in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity Tribunal, as it then was, held that "... all that is 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." The Tribunal went on to say that a broad interpretation of the word detriment is "consistent with the evident legislative intention to protect those who use the processes of the Act, or contemplate such use or assist in relevant ways in such use." The Tribunal adopted this construction of the word "detriment" in Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244] and Carter v Brown [2010] NSWADT 109 at [145]. This test has also been applied by the Federal Magistrates Court, as it then was, in Damiano v Wilkinson [2004] FMCA 891. 82In the Tribunal's 2012 decisions some complaints of victimisation were dismissed because the detriment inflicted by the publications was "trivial". The Tribunal explained that each of the non-victimising publications contained "no more than a single derogatory imputation about Mr Burns' character or conduct." The Tribunal went on to say that: 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. 83The finding that many readers would be unlikely to pay much attention to the imputation is relevant when assessing whether Mr Burns suffered any damage to his reputation. He makes no such claim in this case. 84In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40], the Tribunal held that the word "detriment" should be given its ordinary English meaning of "loss, damage or injury". The statement in Bogie that the complainant must be placed under a disadvantage as to a matter of substance as distinct from a trivial matter, is no more than an attempt to define detriment. If the disadvantage is trivial it will not constitute a detriment. Section 50 speaks of "any detriment in any circumstances". Regardless of the circumstances, any detriment is sufficient. Depending on the circumstances, that detriment may include the humiliation and stress which the comments engender and/or, as was suggested by the Tribunal in its 2012 decision, the damage to a person's reputation. 85Whether a detriment has been suffered is to be determined objectively. In Sivananthan at [41], the Tribunal stated that "it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment." In summary, in our view a detriment is any objective disadvantage in any circumstance, but a person will not have suffered a detriment if a reasonable person would not regard the matter as a detriment because it is trivial. 86In determining whether the detriment occurred "on the ground of" one of the matters set out in sub-paras (a) to (d), the question is whether "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": Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.
Complaints of victimisation 87Mr Burns complained that the fourth (paras 2, 4 and 5), fifth, sixth and seventh publications constitute victimisation. In relation to all the victimisation complaints, it is not disputed that Mr Burns did one of the things referred to in paras (a) to (d) of s 50. He brought proceedings against Mr Sunol under the AD Act. 88In paragraphs 2, 4 and 5 of the fourth publication, Mr Sunol calls Mr Burns a "thieving rotten mongrel", a "plain rotten thief", and "a liar cheat and thief". He says "this thief of a Gary" set him up. Making these comments constitutes a detriment to Mr Burns. The intensity and repetition of this derogatory language satisfied us that, objectively, Mr Burns suffered a detriment which is not trivial. We accept that, subjectively, he was humiliated and distressed by being called these names. 89These comments were made because Mr Burns brought proceedings against him and the Tribunal made orders in relation to those proceedings. 90This complaint of victimisation is substantiated. 91The comments on the first page of the fifth publication (the letter to Mr Burns) resemble those made by Mr Sunol in the fourth publication. It is clear from the comments themselves that Mr Sunol abused Mr Burns on the first page of this letter because he had brought proceedings against him. The repeated use of strong and derogatory language would have caused Mr Burns a detriment, namely humiliation and distress. This part of Mr Burns' complaint of victimisation is substantiated. 92The comment at the end of the letter does not constitute victimisation because it was not made on the ground that Mr Burns had brought proceedings under the AD Act. There is no link in that sentence between Mr Burns having done anything referred to in paras (a) to (d) of s 50 and any detriment he may have suffered. This part of Mr Burns' complaint of victimisation is not substantiated. 93In relation to the sixth and seventh publications, these comments were made because Mr Burns brought proceedings against Mr Sunol under the AD Act. Calling Mr Burns "a thief and a liar who manipulates the law to get money off people" and a "thieving rotten lying faggot who lies in court" is a detriment to Mr Burns. All the comments were made on the ground that Mr Burns had brought proceedings against him. These parts of Mr Burns' complaint of victimisation are substantiated.
Background 94Section 108(1) of the AD Act provides that: (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. 95We have found 9 separate publications on Mr Sunol's blog site to constitute homosexual vilification. (Publications 1, 2, 3, 4 (paras 1 and 3) 7, 8 (second passage), 9 and 10.) We have also found four instances of victimisation in publications 4 (paras 2, 4 and 5), 5, 6 and 7. Notably publication 7 constitutes both homosexual vilification and victimisation. 96Having found some of the complaints substantiated, we may make certain orders in relation to those complaints: s 108(2). Those orders include damages by way of compensation for any loss or damage suffered by reason of Mr Sunol's conduct, an order enjoining Mr Sunol from continuing or repeating any unlawful conduct and an order to publish an apology or retraction. In addition, if the Tribunal orders an apology or enjoins a respondent from continuing or repeating certain conduct it may also order that, in default of compliance with the order, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order: s 108(7). 97Mr Burns sought an order for damages, an order that Mr Sunol write an apology and an order enjoining Mr Sunol from continuing or repeating any unlawful conduct. At the hearing, Mr Burns said that he does not want Mr Sunol to use his name on the internet or to identify him as gay, corrupt, a thief or a liar. We explained that we can only make orders stopping Mr Sunol from publishing comments that it is unlawful for him to make. 98In the Tribunal's 2012 decision it found some aspects of Mr Burns' complaints of homosexual vilification and victimisation substantiated and ordered Mr Sunol to: (1)remove certain material from every website controlled by him; (2)refrain from publishing that material again; (3)post a specified apology on every website controlled by him with 14 days; (4)pay to Mr Burns $3,000 as compensation for the harm caused to him by the publications which were found to constitute homosexual vilification; (5)pay to Mr Burns $3,500 as compensation for the harm caused to him by the publications which constitute victimisation; and (6)write a letter of apology in specified terms to Mr Burns. 99The Tribunal determined several other complaints of homosexual vilification and victimisation involving the same parties in Burns v Sunol (No 2) [2012] NSWADT 247. The orders in that matter were in similar terms to those summarised above except that Mr Sunol was ordered to pay Mr Burns $2,000 as compensation for the harm caused to him by the publications which constituted homosexual vilification and $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation. In total, Mr Sunol was ordered to pay Mr Burns $11,000. 100According to Mr Burns, Mr Sunol has not complied with any of these orders.
Evidence relating to remedies 101Mr Burns provided medical evidence from his treating psychologist. We made a suppression order in relation to the report prepared and the evidence given by Mr Burns' psychologist. The publication of that evidence dated 19 February 2013, is prohibited in accordance with s 75(2)(c) of the Administrative Decisions Tribunal Act 1997. We made that order because of Mr Burns' understandable concern that Mr Sunol would publish that highly sensitive and personal information and make comments about it on his website. While we will not outline the evidence in detail in these reasons, much of the information about Mr Burns' history and his sensitivity to Mr Sunol's comments about him and homosexuals in general, was set out in the Tribunal's 2012 decision at [98]. 102Mr Burns gave evidence that he fears becoming a victim of gay hate crime because there is a particular disdain in the community for people who are thought to be paedophiles. 103Mr Sunol was given the opportunity to cross examine the psychologist. He asked whether Mr Burns' existing condition could have been caused or re-activated by something other than his publications. While the psychologist conceded that that was technically possible, she said she had no reason to suspect that that was the case because Mr Burns did not mention anything else that was causing his current symptoms. 104Mr Sunol also questioned the psychologist about whether Mr Burns' involvement in other litigation may be a cause for his symptoms. Again the psychologist said that she was aware of other litigation but she understood that the parties to those proceedings had responded professionally and had not made personal comments about Mr Burns. 105We accept the psychologist's evidence. 106We are satisfied that Mr Burns is suffering from complex Post Traumatic Stress Disorder. He was the victim of a number of violent gay hate crimes during the period 1989-1993. He suffered severe physical injuries and Post Traumatic Stress Disorder. Mr Sunol's repeated verbal attacks have caused him to be re-traumatised.
Remedies for vilification complaints 107It is appropriate to order Mr Sunol to remove from his website all the material which we have found to constitute homosexual vilification and any material to the same or similar effect. Mr Sunol should also refrain from publishing such material on any website, controlled by him, in the future. 108It is also appropriate for Mr Sunol to publish an apology for the vilifying conduct on his website in the terms set out in the orders. Because Mr Sunol has a history of non-compliance with Tribunal orders, and has publicly flouted those orders, if he does not remove all the offending material and any material to the same or similar effect, refrain from publishing similar material and publish the apology within 14 days of the date of these reasons, he is to pay Mr Burns damages of $2,500 by way of compensation for failure to comply with any of those orders. The Tribunal will re-list this matter in 3 weeks to hear evidence as to whether Mr Sunol has complied with these orders. 109In addition, Mr Sunol should pay Mr Burns damages for the pain and suffering he has endured as a result of the vilifying statements. The principles in relation to damages for vilification were set out in the Tribunal's 2012 decision at [112] to [123]. In this case, all the vilifying publications were on Mr Sunol's website. Prior to the Tribunal's 2012 decision, there had been no awards of damages for vilification published on the internet. We agree with the conclusion in the Tribunal's 2012 decision that damages for publications on Mr Sunol's website would be much less than for a publication by a high profile person such as Alan Jones. As in the 2012 decision, Mr Sunol's publications were relatively inconspicuous. 110We accept Mr Burns' evidence about his special sensitivity to all the material, some of which related specifically to him. While the first, second and third publications related to Mardi Gras organisers and participants, parts of the fourth, all of the sixth and seventh, and parts of the eighth publications, relate solely to Mr Burns. But none of this material was "thrust upon" him. Mr Burns chose to read it, knowing Mr Sunol's reputation for publishing vilifying material. 111In the Tribunal's 2012 decision at [126] and [127] the Tribunal made the point that Mr Burns has a duty to take reasonable steps to mitigate the damage or loss caused by the conduct. The duty to mitigate may be applicable in assessing damages under the AD Act, but there is no hard and fast rule. While the Tribunal in that case did not consider it appropriate to deny Mr Burns' damages on the basis that he had failed to mitigate his loss, it did consider it relevant that Mr Burns could choose whether or not to visit Mr Sunol's website and run the known risk of encountering hurtful material. 112We accept Mr Burns' evidence and that of his psychologist about his special sensitivity to the vilification of homosexuals including himself. But these publications were all on Mr Sunol's website. They were not sent directly to Mr Burns or said in his presence. Mr Burns either accessed the website himself or, in some cases, was provided with the information by a friend. He says that one reason he did so was to check whether or not Mr Sunol had complied with the Tribunal's 2012 orders. 113Mr Burns was impliedly on notice following the Tribunal's 2012 decision that his damages could be affected if he continued to choose to access Mr Sunol's website himself or read the content forwarded by someone else. While he chose to rely on others to forward him information from that website, he nevertheless read it. We appreciate that Mr Burns wanted to see whether Mr Sunol had complied with the Tribunal's orders but he could have delegated that task to a friend and advised him or her not to disclose the content of any further breaches. Because he chose not to take this course, Mr Burns' damages should be even less than the $3,000 awarded by the Tribunal in the 2012 proceedings. We assess Mr Burns' damages at $1,500.
Remedies for victimisation 114The victimising conduct was insulting and defamatory words on Mr Sunol's website and in a letter written directly to Mr Burns. While Mr Burns could have avoided reading the victimising material on the website, he could not avoid reading the letter addressed personally to him. That letter contained extremely insulting and defamatory language. 115We assess his damages overall for victimisation to be $3,000. 116We also consider it appropriate for Mr Sunol to apologise personally to Mr Burns for the victimising conduct in the terms set out below, to remove the offending material from his website and to refrain from publishing similar material in future. Again, in default of compliance with any of those orders Mr Sunol should pay Mr Burns $2,500.
Orders
Burns
Sunol
[1995] FCA 1653
[2004] FMCA 891
(1995) 62 FCR 556