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[2014] NSWCATAD 44
NCAT Administrative and Equal Opportunity
2014-02-21
Original judgment source is linked above.
Introduction 1On 22 January 2014 the Tribunal made orders that Mr Sunol apologise to Mr Burns and remove homosexually vilifying material and material which victimised Mr Burns from websites controlled by him. The Tribunal also ordered Mr Sunol to refrain from publishing further material "to the same or similar effect": Anti-Discrimination Act 1977 (NSW) s 108(2)(b). In default of compliance with those orders within 14 days, the Tribunal ordered that Mr Sunol pay Mr Burns $2,500 for each breach: Anti-Discrimination Act, s 108(9). The Tribunal's orders in Burns v Sunol [2014] NSWCATAD 2 (the Tribunal's first decision) are set out in full at the end of these reasons. The matter was listed on 21 February 2014 to determine whether Mr Sunol had complied with the Tribunal's conduct orders. 2Mr Sunol complied with the orders to apologise and to remove the vilifying and victimising material identified by the Tribunal in its first decision from websites controlled by him. He has not complied with the orders to refrain from publishing further material "to the same or similar effect."
Legislative provisions 3The provision of the Anti-Discrimination Act which makes homosexual vilification unlawful is s 49ZT: (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. 4A public act is defined in s 49ZS: A 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. 5Certain 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. 6The provision making victimisation unlawful is s 50: (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. 7Section 108(2)(b) of the Anti-Discrimination Act is the provision pursuant to which the Tribunal made what can be described as perpetual prohibitory injunctions against Mr Sunol: (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: . . . (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations (Emphasis added.) 8The orders which the Tribunal made under this provision were orders 5, 6, 10 and 11: 5. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect: The first publication - set out at [30] above The second publication - set out at [31] above The third publication (YouTube clip) - set out at [32] above The first and third paragraphs of the fourth publication - set out at [33] above The seventh publication - set out at [37] above The second passage in the eighth publication - set out at [38] above The ninth publication - set out at [39] above The tenth publication - set out at [40] above. 6. Mr Sunol is to refrain from publishing the material described in Order 5, or material to the same or similar effect, on any website, controlled by him. 10. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect: The fourth publication (paras 2, 4 and 5) - set out at [33] above The sixth publication - set 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. 9Section 108(7) of the Anti-Discrimination Act states that: If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order. 10The Tribunal relied on this power to make Orders 8 and 13 in its first decision: 8. In default of compliance with Orders 5, 6 or 7, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders. 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. 11Mr Sunol removed the material specified in Orders 5 and 10. Section 108(2)(b) allows the Tribunal to make an order enjoining a respondent from continuing or repeating any conduct "rendered unlawful by this Act." The only material that the Tribunal found to be unlawful is the material identified below. If Mr Sunol publishes material to the "same or similar effect" as the material the Tribunal found to be unlawful in its first decision, he will have breached order 5 and/or Order 10. We will refer to such material as "similar material" in these reasons. 12The publications which the Tribunal found to be in breach of the homosexual vilification provision (s 49ZT) are set out below. All quotes from Mr Sunol are verbatim. First 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. . Second 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 Third 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. Fourth publication - 5 December 2012, text on website under "Leave a message" pars 1 and 3: 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 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 Seventh 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 . . Eighth publication - 14 December 2012, on website: 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. Ninth publication - 1 January 2013, on website Stuff the poofters and gay parasites like Gary Burns Tenth 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. 13The publications which the Tribunal found to be in breach of the victimisation provision (s 50) were as follows: Fourth publication - 5 December 2012, text on website under "Leave a message" paras 2, 4 and 5: 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. . 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! Sixth 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. For Mr Sunol to have breached Orders 5, 6, 10 or 11, the Tribunal would need to be satisfied either that Mr Sunol did not remove material to the same or similar effect as the above publications from websites controlled by him; and/or he did not refrain from publishing such material.
Introduction 14Mr Burns tendered 13 publications from websites controlled by Mr Sunol which he said were in breach of the orders in the Tribunal's first decision. We have categorised those publications into publications which contain similar material to the publications the Tribunal found to constitute homosexual vilification and similar material to the publications the Tribunal found to be victimisation. For both categories, we have further divided the material into: (1)old publications that were not removed within 14 days of the Tribunal's first decision; and (2)new publications or material published since the Tribunal's first decision on 22 January 2014.
Not removing similar homosexually vilifying material
15Mr Burns tendered two print outs which he said were instances of Mr Sunol not removing similar material from a website controlled by him (Exhibit A and Exhibit B.) 16Exhibit A is a print out from Mr Sunol's twitter account: Rodney Crome is very wrong. Same sex marriage is not a human right at all, it is a curse which will be put on all who accept this and the Tasmanian upperhouse know this 17Mr Sunol posted this comment on 29 October 2013. He said he has four or five twitter accounts and he did not go through them all to remove material vilifying homosexuals. That is no excuse because the Tribunal ordered him to remove similar material. 18We find that Mr Sunol's twitter accounts are websites controlled by him. The remaining question is whether this public act contains similar material to the homosexually vilifying comments set out above. 19Expressing the view that same sex marriage is not a human right is not similar material to the comments the Tribunal found to be unlawful homosexual vilification. We have reached the same view about the comment that same sex marriage is a "curse." 20Exhibit B is an extract from a post on Mr Sunol's blog dated 27 October 2013. It states that: I wish to tell Garry, there is no way that I am going to take down my sites or remove what you want from them. I would rather go to prison than give into an internet thug like you. I could lobby for support of people inside prison if I went there for contempt of court who know how evil this Mardi Gras really is. I am just not going to stop or give in buster. 21Referring to the Mardi Gras as "evil" is not a comment that the Tribunal found to constitute homosexual vilification in the first decision. Consequently, it is not the publication of similar material to any of the comments the Tribunal decided were unlawful in its first decision.
Publishing similar homosexually vilifying material 22Exhibit G is a post on a new website Mr Sunol set up after the Tribunal's first decision. On 2 February 2014, Mr Sunol wrote: New political party hopes to bring gay rights to the Senate Watch this video will you, we must never back of vote for this party as it is very deceptive and very evil. It is an enemy to society and I will spend every day that I am alive and this part exists opposing it on all levels . . . 23There is a link on the website to a video on an ABC News website (www.abc.net.au/news) headed "New political party hopes to bring gay rights to the Senate." 24Referring to a political party which supports gay rights and same sex marriage as "very deceptive and evil" is not a comment that the Tribunal found to constitute homosexual vilification in the first decision. Nor is it similar material to any of the comments the Tribunal considered in its first decision. 25Exhibit M is a post on Mr Sunol's new website dated 14 February 2014: I might even go down to the Mardi Gras this year myself and hide in the crowds to get information to use against this evil event. I will be unnoticed as I mix in the crowds and on one know me when I do just that. 26Referring to the Mardi Gras as an "evil event" is not a comment that the Tribunal found to constitute homosexual vilification in the first decision. Consequently, it is not a publication to the same or similar effect as any of the comments the Tribunal considered in its first decision. 27 Exhibit F is a post on Mr Sunol's new website dated 3 February 2014: The Mardi Gras is run by a bunch of perverts and criminals and it is repugnant to the whole of Australia I will say no more but this is the truth of that event. I will keep this no matter what anyone said or does as it is true 28In the Tribunal's first decision at [61], it found that a comment that criminals run the Gay and Lesbian Mardi Gras and that they sexually assault young children, breached the homosexual vilification provisions. The comment in Exhibit F, that the Mardi Gras is run by a bunch of "perverts and criminals," is to the same or similar effect. Mr Sunol has breached Order 6 of the Tribunal's first decision by publishing this comment. Mr Sunol is ordered to pay $2,500 for breaching this order.
Not removing similar victimising material 29Mr Burns did not provide any evidence that Mr Sunol had failed to remove material which the Tribunal held in its first decision to constitute victimisation.
Publishing similar victimising material 30Mr Burns provided evidence that Mr Sunol has continued to victimise him in breach of Order 11 as early as eight days after the Tribunal handed down its decision: (1)Exhibit C is a post on Mr Sunol's 'new' blog (http://johnsunolb.blogspot.com.au) dated 30 January 2014 I wish to tell Garry this, who took this order against me by NCAT decisions handed down on January 22nd 2014 I wish to tell those clowns that took me to the courts on false accusations which I will never accept responsibility for, I was framed, and lied aginst to set me in a position to get ordrs on me top shut up (2)Exhibit D is a post on Mr Sunol's 'new blog dated 31 January 2014 I am going to go bankrupt just to piss Garry off I might have to do this as I will have no choice but I am not going to pay this thief at all what so ever (3)Exhibit J is a post on Mr Sunol's new blog dated 6 February 2014: I have gone bankrupt This was due to sitautions beyond my control years ago when I drove taxis down in Wollongong back from 2003-2005 I will use this not to pay that man who is straling money from me on the false accusation he is setting me up in the Tribunals. I tell you this Garry You will not get any money no way as I am bankrupt and there is nothing coming your way . . Garry Can go to hell as he can not and will not stop me He is only a thieving piece of living shit and that is that. There is not a damn thing that thieve like that person who got THIS on me can do about it (If a reader clicks on the word "THIS" there is a link to the Tribunal's decision where the orders were made.) (4)Exhibit K is a post on Mr Sunol's new blog dated 8 February 2014: I wish to let you know this Garry? Then I will say no more you you buster??? Garry your get nothing and I just will not pay thiefs like you who mapulate the law with lies to steal money from your victims (5)Exhibit L is a post on Mr Sunol's new blog dated 13 February 2014: That is all that Garry is that is taking me court A liar, a big trouble maker and her purgers himself with lies in front of the law all of the time Yours writing this in complete contempt and glory in telling you this. Go and get suffed buster as I am going to say no more but I will not stop writing what I want and doing as I like online - you are only a trouble maker buster who has committed purery in attacking me with the lies he puts before the courts in all ways (If a reader clicks on the words "committed purery" there is a link to the Tribunal's first decision.) (6)Exhibit M is a post on Mr Sunol's new blog dated 14 February 2014: God is putting me through change God has allowed this evil man to persecute me from the case above to see that I get changes in my life. It is not that I done anything wrong but it is that this man who took out this order in the case above has told lies and committed purgery and skulduggery by telling lies to the authorities in letters big time He is driven by the Devil and has a one mind of thought over this, dedicated to bring me down as he sees me as a danger. I only give apology yes to keep court orders as I do not want to be found in contempt of the courts. He is an evil man who I will never accept fault at with the above finding. You are driven by demon spirits and are a very evil man. He is not a real activist, only a trouble maker masquerading as an activist and this is the sort of mongrel will stop at nothing. Foul good or lies to get his own way by force. (Behind the words "God is putting me through change" is a link to the Tribunal's first decision.) (7)Exhibit E is a post on Mr Sunol's new blog dated 31 January 2014 I am not going to pay him so Garry, forget it buster as you are not getting any money from me I refuse to given into an internet thug and an trouble maker like yourself (8)Exhibit F is post on Mr Sunol's new blog dated 1 February 2014: Court case decisions just come . . his is where he corruptly told lies to the court and the officials as this man really hates me Try and get me to stop writing to the web also as you arer sure to fail in this as well. I will not mention your name as it is in the link above and you can do nothing to force me know (There is a link to a website where the Tribunal's decision in Burns v Sunol [2014] NSWCATAD 2 is set out.) (9)Exhibit N is a post on Mr Burns' blog www.garyburnsdiscriminationactivist.wordpress.com which states, in part: Gary I have gone bankrupt and I do not have the money to pay you. This bankruptcy cam around because of another totally unrelated issue which I will not go into right now. Neither will I give you any money as I still class you as a thief that has maniputlated and corruptly abused the law. 31Mr Sunol submitted that he has not identified Mr Burns in these publications because he has merely referred to him as 'Garry'. In Publication 9 he says, "I will not mention your name as it is in the link above . . " By placing a link to the Tribunal's first decision on four of the nine publications,(Publications 3, 5, 6 & 8) Mr Sunol has made Mr Burns' identity abundantly clear to any person reading the material and accessing the linked information. 32In the Tribunal's first decision, it held that describing Mr Burns as a 'liar', a 'thief' and a 'mongrel' caused Mr Burns a 'detriment' that was not trivial. The Tribunal also found that Mr Sunol referred to Mr Burns in those terms because he had lodged complaints of vilification and victimisation against him. 33Mr Sunol is in breach of Order 11 of the Tribunal's first decision because he has not refrained from publishing similar material to the material found by the Tribunal to constitute victimisation. Mr Sunol has described Mr Burns as "a thieving piece of living shit", a man who has "committed perjury" and "corruptly told lies". Mr Sunol is ordered to pay $2,500 for breaching this order.
Orders
Tribunal's orders in Burns v Sunol [2014] NSWCATAD 2
Burns
Sunol