Burns v Sunol

Burns v Sunol - [2017] NSWCATAD 215 - NSWCATAD 2017 case summary — Zoe

[4]

The precedent argument

Mr Sunol contends that previous decisions made by the NSW Civil and Administrative Tribunal (NCAT), and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT), relating to complaints made under the Act by Mr Burns are unreliable because they are "tainted by proven apprehended bias shown by the Deputy President and division head of the Administrative and Equal Opportunity division [of NCAT]".
Apart from listing a number of decisions made by NCAT and the ADT concerning complaints made by Mr Burns of unlawful homosexual vilification, Mr Sunol did not elaborate on the basis for his assertion of "proven apprehended bias" relating to the Deputy President. Nor did he elaborate on the basis for the assertion that the listed decisions were "unreliable".
The claim of apprehended bias relating to the Deputy President is both unparticularised and unsupported, and therefore we are unable to consider it further. However, we deal with what we understand to underlie Mr Sunol's concern - the belief that that this Tribunal is bound by findings of fact made by the Deputy President.
The Tribunal is obliged to follow a statement of legal principle of a court to which decisions of this Tribunal are appealable, relevantly the NSW Supreme Court, the NSW Court of Appeal and the High Court. While we are not bound to follow a statement of relevant legal principle by the Appeal Panel of NCAT or the Tribunal (constituted by the Deputy President), comity demands that we exercise caution before departing from a considered ruling or interpretation of law: BY v Director General, Attorney General's Department [2002] NSWADT 79 at [22] - [23].
However, the doctrine of precedent does not bind this Tribunal in respect of findings of fact made by other Tribunals, even where constituted by the Deputy President. Put simply, a finding of fact made by a differently constituted Tribunal that a complaint has been substantiated is irrelevant to our considerations. We must decide each case on its merits. We are required to make findings on the available evidence about the Complaint referred and apply the law to those facts.

[5]

The pre-judgement argument

Mr Sunol asserts that this Tribunal (constituted by Principal Member, A Britton and General Member, J Newman) has a "conflict of interest" because of its "involvement with prior Burns v Sunol hearings". Each member of this Tribunal has determined complaints of unlawful vilification made by Mr Burns against Mr Sunol.
Mr Sunol has not identified the nature of the "interests" said to give rise to a relevant conflict. It appears he is in fact alleging actual bias or apprehended bias in the form of prejudgement.
Apprehended bias arises where a "fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question the [decision-maker] is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6]; Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Michael Wilson & Partners) at [31]. The test is an objective one.
The application of the apprehension of bias principle involves a two-step process. The first is the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits. The second is an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner at [8] and Michael Wilson & Partners at [63]. In Michael Wilson & Partners, the plurality stated at [63]: The bare assertion that a decision-maker appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
Mr Sunol has done nothing more than make the "bare assertion" that because each member of this Tribunal has previously determined complaints made by Mr Burns of unlawful homosexual vilification, this gives rise to an apprehension of bias. He failed to articulate the connection between previous decisions which we have each made and the alleged appearance of bias. Without more, we could not be satisfied that the "fair-minded lay observer", in possession of the relevant information, might reasonably apprehend that we might not bring an impartial and unprejudiced mind to the determination of the Complaint.
Mr Sunol appears also to allege actual bias in the form of pre-judgement. Actual bias requires an assessment of the state of mind of the decision-maker(s): Michael Wilson & Partners at [33]. Actual bias in the form of pre-judgement will be established if the decision-maker's mind is "[S]o committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [75]; Michael Wilson & Partners at [33].
In Minister for Immigration and Multicultural Affairs v Jia Legeng, Hayne J outlined at [185], several distinct elements which underlie the assertion that a decision-maker has prejudged or will prejudge an issue: The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
An allegation of actual bias must be distinctly made and clearly proved; cogent evidence is required; a finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
Apart from referring to the fact that each member of this Tribunal has been a member of Tribunals constituted to determine complaints of unlawful homosexual vilification made by Mr Burns, Mr Sunol has provided no information to assist us to evaluate whether there is some basis for the allegation of actual bias.
Mr Sunol has failed to establish either actual bias or a reasonable apprehension of bias. Therefore the application that we recuse ourselves is refused.

[6]

Should Mr Sunol be permitted to call Mr McKee to give evidence?

Prior to the hearing, Mr Sunol applied for leave to call Mr McKee to give evidence by phone. Mr McKee apparently resides in Vietnam. At a directions hearing held on 7 February 2017, the Tribunal (PM Britton) made orders to the effect that Mr McKee would be permitted to give evidence by phone, if, after considering the issue at the substantive hearing, the Tribunal was satisfied that Mr McKee is likely to be able to give evidence relevant to the matters that are required to be determined in the Complaint.
On the day of the hearing after receiving further submissions from the parties, we decided not to give Mr Sunol leave to call Mr McKee to give evidence. In making that decision we had regard to the following issues. First, the fact that there is no dispute between the parties about a number of key factual matters including the fact that the offending passage was written and posted on Mr Sunol's website by Mr McKee. Second, Mr Sunol's failure to identify any areas of factual contest about which Mr McKee would be able to give evidence.
Mr Sunol's submission was, in effect, that leave should be given to him to call Mr McKee because Mr McKee was better placed to explain why the offending passage did not constitute unlawful discrimination. He stated that the Tribunal would benefit from hearing from Mr McKee about the "legal and political history about the Sydney homosexual movement, including the formation of the Gay and Lesbian Liaison officers within the NSW Police".
Mr McKee's views about same sex marriage, the history of the Sydney homosexual movement and associated issues may be of interest to him and others but are not relevant to the issues we are required to address. Our task is not to conduct a wide-ranging review into matters of interest to the parties but to consider whether the Complaint of homosexual vilification made against Mr Sunol is or is not substantiated.
We concluded that Mr McKee was unlikely to be able to give any relevant evidence about the matters in dispute and we refused the application.

[11]

Was the publication of the offending passage a public act of Mr Sunol?

Mr Sunol contends that, because he neither wrote nor posted the offending passage, the act of communicating the passage via the internet was not his public act. He argues that by making the Complaint against him, and not the "true author" of the passage, Mr Burns is using him as a "useful idiot to manufacture case law". Citing Burns v Corbett; Gaynor v Burns [2017] NSWCA 3, he asserts that the reason Mr Burns is targeting him rather than Mr McKee is that the Tribunal lacks jurisdiction to entertain a complaint brought against Mr McKee because he resides in Vietnam.
Mr Sunol does not dispute that the offending passage was posted on a website that at the relevant time, and to this day, he operated and controlled - https:///johnsunol.blogspot.com.au. Nor is it in contest that the website was available to the public or members of the public on the internet. However, he denies giving Mr McKee permission to put the offending passage on the website.
Mr Burns disputes that claim pointing to the comment posted on Mr Sunol's website on 8 September 2016. Appearing under a link to a youtube clip, apparently prepared and posted by Mr Sunol, that entry reads: I am very angry that I have been complained about for the 76th time to the Anti-Discrimination Board Published on Sep 8, 2016 Over articles that I did not write. They were written by Luke McKee from Vietnam whom I gave my password to. Luke is also a victim of the cyberbullying and bullying by [Mr Burns] …
At the hearing, Mr Sunol admitted that he had given Mr McKee the password to his website and that this enables content to be posted on the website. However, he claimed because of "all the trouble" Mr McKee had caused him, at some point in time he changed his password. He said he could not remember when he changed his password. He asserted that even without a password Mr McKee would be able to post material on his website because he is "very internet savvy".
Mr Sunol stated he did not endorse the views expressed by Mr McKee in the offending passage that Mr Burns was a "child molester". He said if he found comments such as that on his website he would "take it straight down". When asked why the offending passage was still on his website on 18 February 2017, he stated that it had probably been missed. He claimed he had "so much stuff on my blog: I don't have the time or ability to take it down". He stated that he will not be held responsible for what another person, relevantly Mr McKee, writes.

[14]

The relevant principles

The element of incitement in the unlawful vilification provisions of the Act has been the subject of extensive consideration by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following statement of principles may be distilled from those authorities: 1. An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53]) 2. The word "incite" in s 49ZT 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" (Sunol at [41]; Margan at [11]) 3. For a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or there was an intention to incite (Sunol at [41]; Margan at [12]) 4. It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons. It must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41]) 5. The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61]) 6. In making that assessment, the particular class to whom the act is directed, the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]).
NCAT and the ADT have consistently held that the words "hatred" and "serious contempt" in the vilification provisions of the Act are to be given their ordinary meaning and have applied 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). See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]; Burns v Sunol [2012] NSWADT 246 at [112].

[17]

Consideration

To put the offending passage in context, we reproduce below the immediately preceding passage appearing on the website: "What if the NSW Anti-Discrimination Act was modified to actually add a proper definition for homosexuality - then my problems would be solved!" The definition needs to be changed to. A homosexual is a person who does sexual acts with the member of the same sex, and only ever to those people over the legal age of consent for sex or prostitution. This is clearly a better definition that what we have now: "A homosexual is a [male or female] homosexual" leaves what just is a homosexual and what they aren't undefined. This would also ensure children can't legally be homosexuals because they are too young to do gay sex acts or to be obsessed with wanting to do them. This is a thought experiment, because though it's medically proven that paedophilia is more common among the gay demographic, lets pretend we put this legal fiction created by Garry himself that 'gays can never be paedophiles' pushed into case law by the NSWADB enshrined in an amendment to the Anti-Discrimination act and see what will happen when we enforce the legal fiction fairly considering the body of case law paedophilia normalization activist Garry Burns has created under the gay rights banner.
As noted we have decided not to reproduce the offending passage. It is necessary, however, to summarise its contents. It states that Mr Burns: 1. Is "ineligible" to sue anyone under the Act because "we are in possession" of leaked emails that Mr Burns hires underage "teen prostitutes". 2. Sponsors Sri Lankan gay men as partners to apply for visas to live in Australia. 3. Had sex with a teenage boy and treated him as a "piece of meat". 4. Spammed the author with photographs of his penis. 5. Uses a gay dating website between "rent boy interludes".
The plain meaning conveyed by the passage is that, among other things, Mr Burns uses under-age prostitutes. Read in context, the ordinary reader is also likely to have understood that Mr Burns made false representations to the Department of Immigration that he is the partner of gay male visa applicants from Sri Lanka. For the purpose of the Complaint we understand Mr Burns to complain about this part of the offending passage.
As stated, the readers of the offending passage are likely to hold a range of views about homosexuality. The type of emotion (if any) that the passage was likely to have the capacity to invoke, in our view, turns primarily on whether the reader is likely to have accepted the allegations made about Mr Burns as true. While the reasonable ordinary reader might have dismissed those allegations as fantastic and implausible given the colourful and sensationist language used, the ordinary reader might not, especially given the claim of the existence of supporting material in the form of photographs and "leaked emails".
Applying that analysis, the question posed is: did the offending passage have the capacity to incite feelings of hatred toward and/or severe contempt for Mr Burns in the ordinary member of the group. Having regard to the nature of the serious nature of claims made about Mr Burns - that he had sexual intercourse with minors and treated one "like meat" - taken together with the poor regard with which paedophiles are held within Australian society, we conclude that the offending passage had the capacity to incite not merely feelings of dislike or disdain for Mr Burns but feelings of hatred toward and/or severe contempt for him in the ordinary member of the audience.
We are satisfied that the offending passage had the capacity to incite each of the relevant emotions.

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (1)

Cases Cited (13)

Cited By (6)