Burns v Sunol

[2017] NSWCATAD 236

NCAT Administrative and Equal Opportunity|2017-04-19

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-04-19

Catchwords

HUMAN RIGHTS - homosexual vilification - meaning of "public act" - whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual persons

Source

Original judgment source is linked above.

Catchwords

HUMAN RIGHTS - homosexual vilification - meaning of "public act" - whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual persons

Judgment (24 paragraphs)

[1]

REASONS FOR DECISION

These reasons address three complaints lodged by Garry Burns with the President of the Anti-Discrimination Board (respectively "the President" and "the Board").
In two of the three complaints, Mr Burns alleges that John Sunol communicated material via the internet which vilified homosexual people and/or him. The Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for a person, by a "public act", to incite hatred towards, serious contempt for, or severe ridicule of a person on the ground that the person(s) is, or is thought to be, homosexual: s 49ZT.
In the third complaint, Mr Burns alleges that Mr Sunol victimised him by publishing material which alleges Mr Burns has engaged in criminal conduct and, by the operation of s 50 of the Act, is unlawful.
There is a long history between the parties. Since 2011 Mr Burns had made numerous complaints to the President about Mr Sunol. Most allege unlawful homosexual vilification. Some have been found to be substantiated by the NSW Civil and Administrative Tribunal (NCAT) and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT). Currently, proceedings are on foot between the parties in other jurisdictions. In these proceedings both parties made submissions about this history. Except to the extent that those submissions are relevant to the issues we are required to determine in these proceedings, we have not addressed them in these reasons.

[2]

[7]

The first vilification complaint

It is agreed that the comment which is the subject of the first vilification complaint was a comment written and posted on the subject website by Luke McKee.
The comment (the offending comment) is one of 25 comments posted or uploaded in response to an article posted on the subject website on 5 March 2016 entitled "Luke McKee's first report on sexualisation of children witnessed at the Sydney Mardi Gras that satanic OTO member bisexual Kinsey …". An "add a comment" option appeared at the end of that article which, if pressed, enables a person to post a comment. The available evidence indicates that a password was not needed to post a comment.
Mr Burns argues that the communication of the offending comment was the public act of Mr Sunol because he had control over the subject website and gave permission to Mr McKee to post the comment. Mr Sunol disagrees. He submits that as he neither wrote nor posted the comment it was not his public act. He argues that while in the past he may have acquiesced to Mr McKee accessing the subject website, as Mr McKee posted the comment directly on the website, Mr McKee had "equal control over the blog". Furthermore, he wrote, "at the time of writing [17 April 2017] Luke McKee now controls this blog and I have abandoned it". In oral evidence, he claimed that he had started a "new blog" about four to six weeks ago. Mr Sunol also claimed that, given the large amount of material on his website, he can neither monitor nor control the content that is posted.
In oral evidence, Mr Sunol claimed that he took steps to remove the offending material about three weeks after it was posted. Mr Burns, pointing to the document he attached to the initiating complaint, which he claimed was downloaded and copied from the subject website on 13 September 2016, submits that this claim cannot be accepted.. It contains a copy of the offending comment and next to the name of the author the words, "via google +6 months ago…"

[9]

Did the offending comment have the capacity to incite hatred towards or serious contempt of Mr Burns on the ground of homosexuality?

Mr Burns must establish that at least one of the "real", "genuine" or "true" reasons for the offending passage having the capacity to incite hatred towards or serious contempt of him was on the ground of his homosexuality: Jones v Trad [2013] NSWCA 389 at [98].
The offending comment reads : This shows you what Gary Boylover Burns is up to and it's not everything but enough to get you started on who he is normalizing pedophilia. Search "Sparkles the pony" to see why he IS a paedophile. (spelling uncorrected)
The offending comment, in particular the statement that Mr Burns is "a paedophile", undoubtedly had the capacity to incite hatred towards, contempt of Mr Burns. It implies that Mr Burns engaged in or approves of child sexual abuse. There are few stronger taboos in our society and such behaviour is both condemned on moral grounds and is criminalised by our penal laws. However, for the reasons that follow, we are not satisfied that the offending comment had the capacity to incite either hatred towards, or contempt for Mr Burns on the ground of Mr Burns' sexuality.
The 25 comments posted on the subject website, following the article posted by McKee, involved a colourful and sometimes abusive exchange between Mr McKee and "Jacob" about a wide range of topics. These include the purported link between homosexuality and paedophilia.
Mr Burns did not explain in either the initiating complaint or Points of Claim filed in these proceedings, the basis for his contention that the offending comment has the capacity to incite one or both of the relevant emotions on the ground of his sexuality. He concedes that the offending comment does not expressly draw a connection between the allegation that he is a paedophile - an allegation he vehemently denies - and his sexuality. Nor does he argue that the reader would understand the term "boy lover" to mean a homosexual male who is a paedophile. He argues that the writer seeks to draw a link the link between his sexuality and the paedophilia allegation by the reference to "Sparkles the Pony". He claims that the statement "Search 'Sparkles the Pony' to see why [Mr Burns] IS a pedophile" constitutes an invitation to the reader to make inquiries about Sparkles the Pony, which if made, are likely to result in a connection being drawn between his sexuality and the paedophilia allegation.
This argument cannot be accepted. First, the question for determination is whether the communication of the offending comment has the capacity to incite one or more of the relevant emotions on the claimed ground, not whether when read together with other unspecified information the communication of the offending comment had that capacity.
Second, the available evidence does not support a finding that the ordinary reader would have understood "Sparkles the Pony" to be a reference to homosexuals who are paedophiles. Relying on an extract purportedly downloaded from the "Sparkles the Pony" Facebook, Mr Sunol contends that "Sparkles the Pony" is "a network of homosexual men" who are paedophiles. Mr Burns agrees "Sparkles the Pony" is a reference to a network of paedophiles, but not homosexual paedophiles.
But more to the point, the issue is not what the parties understand to be the meaning conveyed but what the ordinary reader of the subject website is likely to have understood by the reference to "Sparkles the Pony". Mr Burns has produced no evidence which might assist us to determine this question. There is no support for the contention that it is a matter of common knowledge, to which we may have regard, that Sparkles the Pony is a reference to a paedophile ring, or a paedophile ring whose members are homosexual. (See s144 of the Evidence Act 1995 (NSW))
By inviting the reader to search the term "Sparkles the Pony", Mr McKee may have been seeking to persuade the reader that Mr Burns is a paedophile because he is a homosexual. Mr McKee makes no secret of his belief that male homosexuals have a predisposition to paedophilia. However, the issue we must determine is not what Mr McKee meant by the reference to "Sparkles the Pony", but what meaning was likely to have been conveyed to the ordinary reader.
On the available material we are not satisfied that Mr Burns' sexuality was at least one of the real reasons for the offending passage having the capacity to incite hatred towards, contempt of Mr Burns.
Accordingly, the first vilification complaint must be dismissed.

[11]

Was the communication of the offending article a public act of Mr Sunol?

The parties agree that the offending article was written by Mr McKee. However, they differ about whether the act of communicating it to the public was a public act of Mr Sunol. In support of their respective submissions, the parties advance broadly the same arguments made in the first vilification complaint.
Mr Burns argues that the evidence supports a finding that Mr Sunol gave Mr McKee permission to post the article on the subject website, pointing to an entry posted on the subject website by Mr Sunol on 29 August 2016: I have given permission for a Luke McKee to write to this blog as co-author with myself … This man writes some very good material that will give an extra flavour to my blog.
In addition, Mr Burns claims that the offending article had not been removed by April 2017. In support, he pointed to a copy of the article he claims he downloaded and copied from the Sunol website on 14 April 2017 (Exhibit A 1). The document bears the address of the website and the date 14 April 2017. We accept Mr Burns' claim.
Mr Sunol gave conflicting evidence about whether he gave his password to Mr McKee. In oral evidence, he initially admitted that he gave Mr McKee his password but later claimed he changed his password to prevent Mr McKee accessing the website but could not remember when he took this step. In addition, Mr Sunol claimed he emailed Mr McKee asking him not to post articles on his website about 12 to 18 months ago. He was unable to produce a copy of those emails.
The available evidence indicates that at the time the second vilification complaint was made a password was needed to post articles on the subject website. It is not in issue that Mr Sunol had the password to the website. We find it more probable than not that Mr Sunol gave Mr McKee the password which Mr McKee in turn used to access the site and post the offending article. Mr Sunol's claim of having changed the password to prevent Mr McKee accessing the subject website is unsupported and inconsistent with the entry posted by Mr Sunol two weeks before the offending article was posted. Mr Sunol's claim of taking steps to remove the offending article three weeks after discovering it is irreconcilable with the evidence that on 14 April 2017 the offending material remained on the site, six months after the President had notified Mr Sunol about Mr Burns' complaint about the offending article on 17 October 2016..
For the reasons discussed in relation to the first vilification complaint, the available evidence does not support a finding that Mr Sunol had abandoned the website at the time the complaint was made. We find at that time it remained under Mr Sunol's control.
By writing and posting the offending article on the subject website, the communication to the public of the offending article was a public act of Mr McKee. However, there is no warrant for interpreting s 49ZT(1) of the Act to mean that the relevant "public act" can only be the act of one person. In circumstances where Mr Sunol had control of the subject website, had given the password to the subject website to Mr McKee, had actual knowledge of the posting of the offending article and had taken no steps to remove it, its communication to the public was also Mr Sunol's public act.
We find the communication to the public of the offending article was a public act of Mr Sunol for the purposes of s 49ZT of the Act.

[13]

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 meanings 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].

[16]

Consideration

In Points of Claim filed on 15 February 2017, Mr Burns wrote that each paragraph of the article has the capacity to incite each of the relevant emotions. We also understand him to contend that, read as a whole; the article has the capacity to incite each of the relevant emotions.
In evaluating whether all or part of the offending article has the capacity to incite, as a first step we must ask what was the meaning or impression conveyed to the ordinary reader by the article as a whole and the parts complained about by Mr Burns.
The article is littered with references to the long history between the parties and the complaints made to the President by Mr Burns about Mr Sunol. In our view, much of the offending article is incomprehensible without some knowledge of that history.
The opening sentence of the final paragraph provides but one example. It reads "You must not disrespect those who have sex with underage boys and fly on Air Force One with Obama ….". Without some knowledge of the NCAT decision, referred to in that paragraph, the meaning of the paragraph is unclear.
Therefore, in deciding what the ordinary reader is likely to have understood as the meaning conveyed by the article and, in turn, whether it (or part of it) had the capacity to incite either of the relevant emotions, we must consider whether the ordinary reader is likely to have possessed any knowledge of the history between the parties as referred to in the offending article.
The available evidence does not support a finding that the history between the parties and the complaints made by Mr Burns to the President about Mr Sunol are matters of common knowledge. Nor does it support a finding that the readers of the website were likely to have knowledge of that history. Accordingly, in determining what was the likely meaning conveyed we have assumed that the ordinary reader possessed no knowledge of that history.
Nonetheless, we acknowledge that the element of incitement does not require Mr Burns to establish that the meaning conveyed by the offending article was clear. A poorly written article that is largely incomprehensible may have the capacity to incite. Whether it is likely to have that capacity will depend on multiple factors including the article itself, the context in which it was communicated to the public and the characteristics of the group to whom it was directed. The exercise of determining whether the offending article is likely to have the capacity to incite does not lend itself to empirical assessment and involves an impressionistic assessment of the probability of the communication having that capacity. Mr Burns does not need to prove that the ordinary reader is likely to have understood the meaning that Mr McKee intended to convey or that the article had a rational meaning or one open to only one interpretation. Rather, it is enough that the impression gained from reading the material is likely to have the capacity to incite either of the relevant emotions in the ordinary reader.
Applying that analysis, we are unable to accept the proposition that the first and final paragraphs of the offending article had the capacity. The meaning conveyed to the ordinary reader who did not possess any knowledge of the history between the parties is at best obtuse. The meaning conveyed by each paragraph is unclear. Each conflates a number of "themes". Each makes liberal references to the history between the parties. While the impression gleaned by the ordinary reader is likely to have been that NCAT has made a series of decisions involving homosexual vilification of which the writer strongly disapproves, in our opinion, it is not obvious that either paragraph had the necessary characteristic of encouraging or urging a particular emotion towards homosexual men in general or Mr Burns in particular. While those paragraphs are undoubtedly unpleasant and insulting, their venomous intent is directed towards staff of the Anti-Discrimination Board and this Tribunal. The complaint fails in that respect.
However, we have reached a different conclusion about the major heading and the second paragraph of the article.
The heading reads "Gay Dads" keep on raping, and "marriage Equality: is a platform to give them more boys to rape!'. The clear meaning conveyed is that the campaign for marriage equality is a ruse to give "gay dads more boys to rape". The subject of the heading is "gay dads". In our view, the words used, together with the intemperate tone of the heading, have the capacity to incite hatred of and contempt towards "gay dads" in the ordinary member of the group. In addition, we find at least one of the real reasons for the offending passage having the capacity to incite hatred towards, contempt of "gay dads" is their sexuality.
The second paragraph reads: Notice the decision above says it's a crime to link to http://tinyurl.com/abcplugspedos that goes to this video not about gays, but about pedophiles! But Garry Burns says they are fellow homosexuals just like him (who rape boys?) who must not be vilified
While the ordinary reader is unlikely to have understood what was meant by the reference to "the decision above", consistent with the plain meaning of the paragraph, we find they are likely to have understood that Mr Burns is a homosexual who rapes children. It is a matter of common knowledge that paedophiles are held in low regard within most sections of the Australian society. Given the moral outrage that attaches to the paedophile label, in our view the paragraph is capable of inciting hatred toward and serious contempt for Mr Burns in the ordinary reader. In addition, in our view the paragraph had the capacity to incite those emotions not just because of the allegation that Mr Burns is a paedophile but also because of his sexuality. In reaching that conclusion, we note the reference to Mr Burns' sexuality and the implicit assumption conveyed by the second paragraph that Mr Burns and fellow homosexuals rape children.
With respect to the article read as a whole, while it is possible that it had the capacity to incite the relevant reactions, we are not satisfied that the evidence before us is sufficient to establish this on the balance of probabilities.

[22]

Should an order for compensation be made?

Mr Burns seeks an order for compensation for non-economic loss in the amount of $33,000.
Section 108(1)(a) of the Act states: 108 Order or other decision of Tribunal … (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95(2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
In Margan v Manias [2014] NSWCATAP 16, an Appeal Panel of NCAT stated at [39] that damages under s 108(2)(a) of the Act are to be assessed on the basis that they are awarded to compensate the person for loss or damage suffered as a result of the unlawful act. The Appeal Panel noted that while the equivalent principles within tort and contract law provide a guide, they are not "controlling", citing in support of that proposition: Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [23]- [27], [48]). (See Burns v Sunol [2012] NSWADT 246 at [111] - [133] for a detailed consideration of the issues involved in the assessment of damages under the Act).
In these proceedings, Mr Burns claimed that the publication, over a long period, by Mr Sunol of material that vilifies him and homosexuals as a class has caused him great trauma and distress. He claims that he suffers post-traumatic stress disorder (PTSD), which is reactivated each time he reads content which vilifies him on the ground of his sexuality. He claims that he finds the publication of allegations that he is a paedophile to be traumatising, especially because of the death of a family member who had been abused as a child.
In support of his claim that he suffers from PTSD which is reactivated on reading vilifying material, Mr Burns relies upon a report prepared by a psychologist in late 2013 (Exhibit A2). At Mr Burns' request we made a non-disclosure order in relation to that report. To avoid disclosing the details of the report, in these reasons we will refer to it in general terms. At the time of preparing the report, the author had been treating Mr Burns for 12 months. He wrote that in his opinion Mr Burns suffers from PTSD caused by a violent "gay hate crime" of which he was the victim in the late 1980s. He went on to write that the "ongoing homophobic harassment" Mr Sunol had subjected Mr Burns to over the past two years (2011 to 2013) caused Mr Burns to be "traumatised and re-traumatised".
In addition, in support of his claim for non-economic loss, Mr Burns relies on two letters written in 2005 by the then NSW Deputy State Coroner, Jacqueline Milledge, in which Her Honour thanked Mr Burns for giving evidence in an inquest about his own "horrific experience" as a victim of crime. It can be inferred from the letter that the subject inquest related to the death of a homosexual male.
Mr Burns stated that he is seeking compensation because he wants the "harassment to stop". He stated that the non-monetary orders made by NCAT and the ADT - apologies, restraining order and damages - have not stopped the conduct. (In 2015, a differently constituted tribunal made orders enjoining Mr Sunol from continuing to publish material which amounts to unlawful homosexual vilification: Burns v Sunol [2015] NSWCATAD 131). Since that time, Mr Sunol has published material found to constitute unlawful homosexual vilification, see for example, Burns 2017.)
Mr Sunol opposes the claim for damages. He claims that he has filed for bankruptcy and has no capacity to pay. He points out that, as a result of decisions made by NCAT and the ADT following determination of complaints of unlawful homosexual vilification, he has been ordered to pay Mr Burns an aggregate amount of about $50,000. He claims Mr Burns has subjected him to a campaign of harassment by repeatedly making unsubstantiated complaints and he should be compensated for ongoing harassment, not Mr Burns.
In addition, Mr Sunol argues that if Mr Burns' claim of being traumatised by the material published on the subject website was genuine, he would stop "trolling his blog" and using "Google alert" to notify him when any mention is made of his name.

[23]

Consideration

The report of the psychologist relied upon by Mr Burns in support of his claim of suffering from PTSD corroborates his claim of having been diagnosed with PTSD. Prepared over four years ago, of itself the report does not support a finding that the publication of the material we have found to constitute unlawful homosexual vilification "reactivated" the condition. Nonetheless, it is corroborative of Mr Burns' self-report that the publication of this type of material causes him distress.
A difficulty in assessing Mr Burns' claimed loss and damage is that it is apparent from his submissions that he is not only upset and traumatised by the publication of material which we found to constitute unlawful homosexual vilification in the second vilification complaint, but also other material published by Mr Sunol which, while demeaning of him and/or the homosexual community, is not the subject the complaint currently before us. In these circumstances, identifying the loss or damage "suffered by reason of" Mr Sunol's conduct found to constitute unlawful homosexual vilification in the second vilification complaint is not an easy task.
A further consideration which arises in this matter is whether Mr Burns has taken reasonable steps to mitigate his loss. While there is no hard-and-fast rule that a duty to mitigate applies in assessing damages under the Act, in our view it is appropriate to apply those principles in this case. This is not a case where Mr Burns could not avoid witnessing the unlawful homosexual vilification as was the case, for example, in Burns v Dye [2002] NSW ADT 32 where the vilifier was a neighbour and the offending conduct took place in the immediate vicinity of Mr Burns' home. Nor is it a case where the offending material was communicated directly to Mr Burns, posted, for example, on his Facebook or sent to him by email. Mr Burns has put in place a "Google alert" for the purpose of being alerted to publications about himself that are posted on the Sunol website, in circumstances where it must be inferred he was aware the website was likely to contain material that he would find distressing and hurtful.
It is possible that Mr Burns' PTSD was further aggravated as a result of the part of second vilification complaint we have found to be substantiated and/or that it caused him to suffer additional trauma. However, on the available evidence, we are not satisfied of this to the requisite standard. In any event, coupled with the evidence that Mr Burns failed to take reasonable steps to mitigate his loss, we have decided not to exercise the discretionary power to award compensation.

Burns v Sunol

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Cited By (16)