Burns v Sunol

The evidence and submissions of the parties given in response to the show cause decision

1. The applicant filed two affidavits and supplemented them with oral evidence including cross examination by the respondent. In the first affidavit dated 12 April 2018 the applicant annexed a Certificate issued by the Registrar of this Tribunal on 16 October 2016 pursuant to the provisions of section 78 of the Act. That Certificate was issued relating to file numbers 111024, 111043, 111120, 121023, 131095, 131012, 131062, 121050, 121058, 121070, 121082 and 131012. The certificate forms an annexure to this Decision.
2. It will be seen that the effect of the Certificate is to certify that the several orders made by the Tribunal which were identified in the earlier decision were made and that as at 10 October 2016 there was owing unpaid the sum of $49,500. From this amount should be deducted for present purposes the sum of $6500 being amounts ordered to be paid by the former Administrative and Decisions Tribunal as outlined on the first page of that Certificate. In that none of the decisions referred to in the Certificate has been overturned on appeal, or subject to any other challenge of any kind, the Certificate must stand for and represent the fact of the respective orders having been made, and that the orders for payment of monies have not been complied with.
3. In the course of his affirmed evidence given on 11 May 2018 the applicant said that he conducted an Internet search on 11 April 2018 at 9:59 AM by using the Google search engine to search John Christopher Sunol. There appeared in response to the search which he had conducted a large number of items. Relevantly, there appeared an item posted on 28 January 2017 which is the same item concerning the named Principal Member of this Tribunal as described in paragraph [8] (1) and (2) in the earlier decision. Even though there is a reference at the bottom of the screen shot which the applicant made at that time on that date and which is annexed to his affidavit to the effect that it is located in "http://archive.is/UpSRI" it was nevertheless clearly visible on the search that he conducted. This is clearly indicative that despite the protestations of the respondent that he has taken steps to remove offending material from his website, being material which he referred to as "abhorrent" as I have recorded in the earlier decision, such material had not been removed as at 11 April, 2018.
4. Included within the material annexed to the applicant's affidavit is an extract from the respondent's blog website bearing date 10 April, 2018 at 1:12 PM. The location also refers to johnsunol4.blogspot.com.au. Included within this material is a reference by the respondent to the fact that he owns his own home which he values at not less than $700,000-$800,000 which "has a large investment factor" by reference to it being close to the University of Newcastle "with a prime student rental and other rental prospective." The material then states; "I am so fortunate I have my home in a shelf company as if I didn't I would be forced to sell by the LGBT lobby and mobs of homosexual rights lobbyist (sic) would dive in like sewer rats to take me to Court based on lies to claim their share of my assets." It may be assumed that this is indicative that the respondent is content to use his "ownership" of his home through the services of a "shelf company" as a means of avoiding paying, at the least, monies due under the several orders made by this Tribunal.
5. In his affidavit of 13 April 2018 the applicant affirmed that he had visited the website of the respondent "http://johnsunol4.blogspot.com" on 13 April, 2018 at 7:59 AM. Included within the screenshot which the applicant said that he took of the material displayed was a reference to the possibility of referral to the Supreme Court with the following notation "I will not accept that I have contempt to the law. I refuse to accept this lie as I was set up and framed by homosexual activists. I will accept nothing else." The respondent also maintained that the contemptible material was written by Luke McKee "from Vietnam" who was a co-author of his blog at the time that the material was written concerning the Principal Member of this Tribunal referred to above. He continued to maintain that that material was published without his knowledge and that he knew nothing about it until it was "brought out before NCAT to attack me with as a weapon." He attacked the unnamed person who was accusing him as a "cyber bullying trying to bully me into accept homosexual rights but due to my faith (Pentecostal evangelical) I can never accept gay rights nor will I as I see this as: homosexual rights are wickedness before God to me in my Belief."
6. The proceedings conducted on 11 May 2018 were scheduled to commence at 10 AM. At 9:25 AM that day the respondent filed a request with the Registry that videoconference evidence be taken at 10 AM that day from Luke D McKee whose remote location was said to be Hanoi, North Vietnam and a telephone number was provided. It was said on the request form that Mr McKee would assist the respondent's defence by proving that he was not responsible for writing or publishing the material complained of by the applicant. When the proceedings commenced I indicated to the respondent that the Registry would require 48 hours' notice to set up a remote facility for taking his evidence. The respondent said in response to a question I asked of him that he did not have any form of statement from Mr McKee concerning the evidence that he was likely to give, that he had not spoken to Mr McKee but had communicated with him by email. He said he had an arrangement that Mr McKee would telephone the registry at 10:30 AM that day. As at 10:40 AM, when the proceedings were adjourned at the conclusion of the hearing no such phone call had been received from Mr McKee.
7. In any event, I indicated that in view of the delay that would be occasioned in setting up the audio visual link I was not prepared to allow Mr McKee's evidence to be adduced because there was no clear indication given as to the nature and effect of that evidence, the request could easily have been made earlier and was made too late, and significantly, there was considerable doubt concerning the utility of the evidence that could be given by Mr McKee. This was because the respondent had persisted during the course of many of the hearings before the Tribunal as outlined in the earlier decision that Mr McKee had written the material without his consent. However, the respondent acknowledged that because the material had been published on his website he was responsible for it. To this extent the authorship of Mr McKee is less relevant. Furthermore, the respondent had informed the Tribunal on several occasions that he had made arrangements to have the offending material removed, yet it remained on his website, and still remained on his website as recently as 11 April 2018, as referred to in the evidence of the applicant which I have set out above.
8. Apart from seeking to introduce this evidence, the respondent repeated the assertions which he had previously made to the effect that he was not responsible for writing the offending material, and that he had endeavoured to have it removed.
9. In a document entitled "submission" and headed "without prejudice" the respondent referred to the earlier decision and complained that it introduced material that had not been referred to during the course of the earlier hearing. It is clear that the respondent has failed to address the notice given to him that the hearing which I conducted on 11 May 2018 was held for the purpose of enabling him to make submissions whether it was appropriate to refer that material to the Supreme Court under section 73 (5) of the Act. In any event, he did not seem anxious to address this orally although his written submission document contained the following material referring to the discussion in the earlier decision of the history of the proceedings before the Tribunal: 16. I cannot see the fairness or relevance of the presiding member hanging out all this "dirty laundry" in this case, that is immediately seized upon by the media and in particular the homosexual community's nationwide newspaper the Start Observer. I am being sent to the Supreme Court and will be perceived to be sent there for homosexual vilification which is not the truth. I submit that my being sent to the Supreme Court is being done for political propaganda purposes, to provide the gift of a scapegoat to the "homosexual community".
10. I perceive this material as indicating a lack of concern about the circumstances in which these proceedings are being taken, the significance of the conduct which he is alleged to have committed and a lack of understanding of the role that this Tribunal takes in ensuring the proper administration of the rule of law. I shall return to this aspect later in these reasons for decision.
11. When asked whether the material contained within this submission document contained everything that he wished to say in order to establish that he had a reasonable excuse for his conduct, the respondent replied in the affirmative.

The relevant principles concerning referral consequent on an application for referral

1. I had occasion to consider the relevant principles which inform the exercise of discretion under section 73 (5) of the Act in Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88. I should stress that those proceedings concerned only an application for referral and not a consideration of the matter on the initiation of the Tribunal. Furthermore, they were confined to contempt said to be constituted by continuing and persistent breaches of Orders of this Tribunal. At [28] to [35] I said; There are a number of authorities which will govern the approach to be adopted in the resolution of these proceedings. It should first be observed that I am concerned only with the question of whether or not, by reason of the allegations of contempt against the respondent made by the applicant, that matter should be referred to the Supreme Court for determination by that Court. An alternative question may arguably arise under sec 73(5) about whether I have formed any independent view that the respondent is guilty of contempt of the Tribunal. Because of the view which I take concerning the disposition of these proceedings it is not necessary that I consider this question further. Arguably, if I were to do so I would need to be satisfied that in my view it appears that the respondent is guilty of contempt. Arguably, also, there may be a difference in approach between what is required to be considered and determined depending upon whether the question is one of what "appears" to the Tribunal "on its own view" or the question concerns an allegation that the respondent is guilty of contempt. In either case, this Tribunal has a discretion under section 73 (5) whether to refer the matter to the Supreme Court, and the exercise of that discretion must involve a consideration of relevant matters. As I have formed the view that I am able to dispose of these proceedings by having regard only to the allegations of contempt made by the applicant, it is only necessary to consider such matters as are relevant to the exercise of discretion whether to make the relevant referral. Fortunately, guidance is provided as to the appropriate in principle approach by observations of Basten JA (Sackville AJA agreeing) in the NSW Court of Appeal in Mohareb v Palmer [2017] NSWCA 281. The fundamental question to be determined is whether the conduct which is the subject of the allegations is "capable of amounting to contempt." The determination of this question involves a consideration of the relevant factual matters coupled with a requirement to afford the respondent an opportunity to address the Tribunal about whether or not the matter should be referred to the Supreme Court. I shall proceed accordingly. Many of the cases involving contempt have focused on the civil/criminal contempt dichotomy and the relevant onus of proof. The distinction between the two occupied the attention of the High Court of Australia, in AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46. In determining this issue, the Court examined the criteria which divided one class of contempt from the other. This caused the Court to consider the nature of the conduct in the context of whether any disobedience to a court order was criminal if the primary purpose was to vindicate the authority of the court or civil if the primary purpose was to vindicate the rights of an individual party to litigation. This in turn caused the Court to consider "the distinction between casual, accidental and unintentional disobedience on the one hand and wilful disobedience on the other ...." (at [21]). The characterisation of the admitted disobedience by the respondent of the several orders of this Tribunal which is at the heart of these proceedings involves a consideration of whether and to what extent the disobedience may have been, on the one hand, casual, accidental or unintentional, or wilful. For this reason, the observations of the plurality in Mudginberri are of assistance. In their joint judgement, Gibbs CJ, Mason, Wilson and Deane JJ, after discussing the imposition of fines in the context of civil contempt in authorities dating back to the 16th and 17th Centuries, said; 22. In more recent times a strong stream of English and Australian authority has emerged to support the imposition of fines for disobedience to orders in circumstances where the disobedience is wilful (Phonographic Performance; British Motor Trade Association v. Hewitt, reported only in "The Times", 1 June 1951; Multiform Displays Ld v. Whitmarley Displays Ld (1957) RPC 137; Steiner Products Ltd v. Willy Steiner Ltd (1966) 1 WLR 986; (1966) 2 All ER 387; In re Mileage Conference Group of the Tyre Manufacturers' Conference Ltd's Agreement (1966) 1 WLR 1137; (1966) 2 All ER 849; Heatons Transport (St Helens) Ltd v. Transport and General Workers' Union (1973) AC 15; Coonan & Denlay Pty Ltd v. Superstar Australia Pty Ltd (No. 2) [1981] FCA 197; (1981) 57 FLR 118, affirmed on other grounds [1982] FCA 190; (1982) 65 FLR 432; Flamingo Park Pty Ltd v. Dolly Dolly Creation Pty Ltd [1985] FCA 123; (1985) 59 ALR 247). In Phonographic Performance Cross J. held, at pp 198-199, that where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt has a dual character, namely, (a) as between the parties to the proceedings, the element of civil execution and (b) as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court in the public interest. In such a case, at least, "(c)ivil contempt bears much the same character as criminal contempt." His Lordship held that the "very great casualness" of the defendants in complying with the order amounted to "wilful disobedience", though it did not involve a sufficient "measure of contumacy" to warrant the imposition of a fine. His Lordship asserted, at p.200, that there was a lack of logic in saying that in a case of civil contempt "the court has no alternative to sending the defendants to prison", concluding, at p.201, that "the court must have power, in the case of a civil contempt, to impose the lesser penalty of a fine". 23. In Morgan Windeyer J. considered, at pp.499-500, that this conclusion was inconsistent with the comments of Lord Lindley in Seaward v. Paterson and Lord Atkinson in Scott, at pp 497-500. His Honour did not consider the English decisions in Hewitt and Multiform to have authoritative value because the defendants did not contest their liability to a fine, perhaps because had they done so it might have ensured their imprisonment. His Honour pointed out, at pp.501-502, that cases in the United States supported the view that there was no power to fine for civil contempt, and such cases as there were in which fines were imposed for civil contempt were explicable on the basis that they were cases in which the fine was payable to the injured party to make good his actual loss, the fine corresponding to assessment of compensation or an account of profits (see United States v. United Mine Workers of America [1947] USSC 40; (1947) 330 US 258, at pp 303-304; Gompers v. Bucks Stove & Range Co. [1911] USSC 79; (1911) 221 US 418, at p 449; Leman v. Krentler-Arnold Hinge Last Co. [1932] USSC 26; (1932) 284 US 448). Subsequently in his judgment (at pp 502-503), Windeyer J. indicated a view that wilful conduct would not constitute contempt unless it was also "contumacious". In support of that view, his Honour cited (at p 503) Fairclough v. Manchester Ship Canal Co. (1897) WN 7; 41 SJ 225 and Worthington v. Ad-Lib Club Ltd (1965) Ch 236. 24. However, the position has been illuminated by the decisions since Morgan. It can now be seen that Cross J.'s interpretation in Phonographic Performance of the word "wilfully" in Ord.42, r.31 of the Rules of the Supreme Court, 1883 accorded with a proper understanding of what had been said by the English Court of Appeal in Fairclough where the Court contrasted "casual, or accidental and unintentional disobedience" with what was required in a case where "it is sought to commit a private individual to prison for contempt" or "to sequestrate the property of a company upon the ground of disobedience" (see, for example, Steiner, at pp.991-992; p.390 of All E.R.; Mileage Conference, at pp.1161-1162; pp.861-862 of All E.R.; and Flamingo, at p.260). In Steiner Stamp J. imposed a fine upon the defendants as punishment for a contempt constituted by breach of an undertaking to the court in a case which was not one which it was "possible to regard as an obstinate disregard" of the undertaking but which was "simply a case of a failure by the company, for no excuse whatever, to carry out the terms of its undertaking" (at p.992; p.390 of All E.R.). In the course of his judgment, Stamp J. pointed out (at pp.991-992; p.390 of All E.R.) that the Court of Appeal in Fairclough, in expressing the view that it was necessary, in such cases, that the court's "order has been contumaciously disregarded", was using the word "contumaciously" in the narrow sense of "wilfully". Stamp J. expressed the conclusion, in support of which he cited the judgments of Chitty J. in Attorney-General at the Relation of the Leyton (Essex) Urban District Council v. Walthamstow Urban District Council (1895) 11 Times LR 533 and Warrington J. in Stancomb v. Trowbridge Urban District Council (1910) 2 Ch 190, that any "disobedience which was worse than casual, accidental or unintentional must be regarded as wilful". His Lordship had earlier indicated that, if the effect of the decision of Stirling J. in Worthington was that "nothing short of stubborn opposition to the terms of an order or undertaking amounted to wilful disobedience so as to be punishable by proceedings for attachment", he was not prepared to follow it. In that regard, it is of interest to note that in Mileage Conference (at p.1162; pp.861-862 of All E.R.) the members of the Restrictive Practices Court, who included Megaw J. as President and McVeigh L.J., suggested that the approach of Stirling J. in Worthington, which they rejected, had resulted from the fact that the only report of Fairclough which had been cited to Stirling J. had been "the abbreviated eight-line report in the Weekly Notes, and not the fuller and better report in the Solicitors Journal" and that Windeyer J., in Morgan, had likewise referred only to the report of Fairclough in the Weekly Notes when citing that case and Worthington in support of the proposition that conduct which was "wilful, but not contumacious", was not punishable by fine or sequestration. In Mileage Conference, the members of the Restrictive Practices Court (at p.1162; p.862 of All E.R.) accepted as correct the view of the law expressed by Warrington J. in Stancomb (at p.194), namely, that it is no answer to proceedings for contempt "to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order". Thus, it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty" (per Warrington J. in Stancomb, at p.194). In Mileage Conference itself, substantial fines were imposed on companies for contempt by breach of undertaking which was not merely non-contumacious but was committed reasonably on legal advice. 25. The correctness of the approach outlined in the preceding paragraph was endorsed by the House of Lords in Heatons Transport, at p.109; their Lordships explicitly citing Steiner and Mileage Conference as precedents for the imposition of a fine in a case of disobedience to an order which is more than casual, accidental or unintentional. This endorsement was evidently based on the reasoning in the decisions to which we have referred, including an appreciation of the unsatisfactory consequences which would flow from the adoption of the view that there is no power to fine in such cases. To those reasons we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional. It is immaterial that the existence of the power to impose a fine for wilful disobedience to a court order may not have been explicitly recognized in 1903 . Accordingly, in considering the conduct of the respondent it is appropriate to determine whether it is a "deliberate commission or omission which is in breach of an ... order (which will thereby)... constitute ... wilful disobedience unless it be casual, accidental or unintentional." "Deliberate" where used in this context does not reflect conduct where there is a direct intention to disobey an order. It will include conduct where the respondent, being aware of it, had "no direct intention to disobey the order". Significantly for the purpose of these proceedings, the conduct will remain characterised as wilful "even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty" . The High Court of Australia revisited the civil/criminal contempt dichotomy in Witham v Holloway [1995] HCA 3. It is not necessary that I refer to the judgements in those proceedings at this stage, save to note that the joint judgement of Brennan, Deane, Toohey and Gaudron JJ applied Mudginberri and emphasised that "the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests."
2. Accordingly, as discussed above, the fundamental question to be determined is whether the conduct which is the subject of the allegations is "capable of amounting to contempt." In doing so I shall take into account such characteristics of a failure to comply with orders of the Tribunal as will constitute contempt in the nature of that which falls within the rubric of wilful disobedience as described above.

The relevant principles concerning referral consequent on a conclusion that it appears on the Tribunal's own view that the respondent is guilty of contempt

1. The above discussion does not extend specifically to circumstances where the Tribunal is required to consider whether "it appears…on its own view" that the respondent "is guilty of contempt" of the Tribunal. In considering what is meant by these words I will have regard to the context in which they appear. Section 73 of the Act creates two pathways in which to consider and determine whether a person is guilty of contempt of the Tribunal. The first permits the Tribunal itself to deal with the matter, and the manner in which it is to do so is created by the deemed application of the contempt provisions applying to the District Court as contained in the District Court Act 1973. Relevantly, section 199 of that Act is in the following term; 199 CONTEMPT (1) In this section, "contemnor" means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court. (2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may: (a) by oral order direct that the contemnor be brought before the Court, or (b) issue a warrant for the arrest of the contemnor. (3) Where the contemnor is brought before the Court, the Court shall: (a) cause the contemnor to be informed orally of the contempt with which he or she is charged, (b) require the contemnor to make his or her defence to the charge, (c) after hearing the contemnor, determine the matter of the charge, and (d) make an order for the punishment or discharge of the contemnor. (4) The Court may, pending disposal of the charge: (a) direct that the contemnor be kept in such custody as the Court may determine, or (b) direct that the contemnor be released and such a direction is sufficient authority for the contemnor's being kept in custody or released, as the case may be. (5) The Court may give a direction under subsection (4) (b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his or her appearance in person to answer the charge. (6) A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court. (7) The Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days. (8) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
2. It will be seen that section 199 uses the same language as is contained in section 73 of the Act, namely a reference, relevantly, to an allegation or an appearance to the Court on its own view that a person is guilty of contempt of court…. The section contemplates a process by which the person concerned is brought before the Court, informed of the charge, and required to make out a defence. Thereafter the Court may determine whether the charge is made out and, if so, make an appropriate order for punishment. It cannot be said that any conclusion that there is the appearance on the view of the Tribunal that a person is guilty of contempt necessarily involves the making of any finding of contempt, or indeed the making of any conclusion that contempt has been committed prior to the alleged contemnor before being brought before the Court, informed of the charge and given an opportunity to defend it. Otherwise this would be a hollow exercise. It follows that these circumstances must also apply to any consideration by the Tribunal given by reference to the provisions of section 73 (1) incorporating the provisions of subsection (4) (a). It must also follow that the same circumstances must apply to any consideration made by the Tribunal to a reference to the Supreme Court under subsection (5) because the same words are used in that subsection.
3. Accordingly, when determining what is required to be considered when ascertaining whether it "appears to the Tribunal on its own view" that a person is guilty of contempt, I first take into account that to have the appearance as required it must be plain or clear or create the impression that the person is guilty of contempt. Secondly such a view must be held by the Tribunal member determining the matter.
4. Of course, endeavouring to state the matter in these simple terms begs the question of the reasoning process that should be applied in determining that it is plain or clear or creates the impression that a person is guilty of contempt, or, to use the language in the subsection, "it appears….on its own view" that the person is so guilty. The use of the words "is guilty" is to be distinguished from the use of the words "may be guilty." Accordingly, the appearance required is much more than a possibility of guilt. It seems that there must be an actual opinion held by the Tribunal member that the contemnor is guilty of contempt, but this involves something less than a positive finding to that effect or a concluded view to that effect. And perhaps, given the seriousness of the conclusion in the context of the very serious charge of contempt, something more than an opinion reached on the balance of probabilities may be appropriate in coming to that conclusion. I have not had the benefit of any submissions about this matter, but working on what I regard as first principles it seems more appropriate to me that the Briginshaw standard should be adopted. As I do not regard the circumstances in which the conclusion is required to be made as indicating a positive finding of guilt or the expression of a concluded view I do not regard the criminal onus as applying. In all the circumstances I conclude that it is appropriate to apply the civil onus but qualified by the more rigorous provisions contained in the Briginshaw standard in determining whether or not there is an appearance on my view that the respondent is guilty of contempt of the Tribunal. Seen in this way it is arguable that this requires a different approach to a determination of whether or not the conduct identified is capable of constituting contempt which is the test adopted in considering whether to refer a matter to the Supreme Court consequent upon an allegation having been made by another person. I shall proceed on this basis.
5. I should add for completeness that the evidence concerning the failure of the respondent to comply with the identified orders of the Tribunal is contained in the findings of the Tribunal of non-compliance as set out in the published Decisions of the Tribunal against a background of Orders having been made which have not been the subject of any successful challenge. Nor have the findings themselves been the subject of any successful challenge. This evidence, coupled with the material contained in the Registrar's section 78 Certificate referred to above results in all of the evidence concerning failure to comply with orders being based on reasons for decision and orders of this Tribunal. In these circumstances, there would be every justification in concluding beyond any reasonable doubt that the identified orders have been breached.

The nature and extent of the contempt of the respondent alleged by the applicant

1. These matters are fully set out commencing at [6] to [10] of the earlier decision. The manner in which it was characterised by the applicant and conceded, at least in part, by the respondent is described in [11] and [12] of the earlier decision.
2. At [91] of the earlier decision I concluded that: It appears to me that the respondent's conduct constituted by the remarks made by him in the publication referred to in paragraphs [7], [8] and [9] and in the statement referred to in paragraph [17] is capable of constituting contempt. I have described this conduct earlier in [83].
3. As is clear, it is conduct which scandalises the Tribunal. Allegations that Tribunal members are corrupt or lack integrity, propriety or impartiality or that they bow to the wishes of outside individuals go beyond permissible critical assessment of a decision or even the conduct of a tribunal member.
4. In Gallagher v Durack [1983] HCA 2 Gibbs CJ, Mason, Wilson and Brennan JJ said; The facts of the matter, so far as it is necessary to state them, are as follows. On 11 May 1982 Keely J., a judge of the Federal Court of Australia, held that the Australian Building Construction Employees and Builders Labourers' Federation (the "Federation"), the applicant, Mr Gallagher (who is the Federal Secretary of the federation), and one, B. Boyd, were guilty of contempt of court. On 18 May 1982 Keely J. fined the Federation $15,000 for the contempt and directed that the fine be paid by the Federation by an agent properly authorized in writting by the Federation to make that payment on its behalf. On the same day Keely J. sentenced the applicant to two months' imprisonment and fined Mr. Boyd. On 21 July 1982 a Full Court of the Federal Court unanimously dismissed an appeal by the Federation but by a majority (Evatt and Deane JJ., Smithers J. dissenting) allowed the appeal by the applicant and set aside the finding that he was guilty of contempt of court and the sentence of imprisonment which had been imposed on him. The court also unanimously allowed the appeal by Mr. Boyd. On the same day, and after judgment had been given in the Federal Court, a number of journalists, television cameramen and others assembled outside the office of the Federation at Carlton seeking an interview with the applicant in respect of the judgment of the Full Court of the Federal Court. At about 1.00 p.m. on that day the applicant, accompanied by others, came out of the office of the Federation and was interviewed. No reliance was placed by the respondent on anything said by the applicant in that first interview. The applicant then distributed to those present copies of a resolution passed by the federal management committee of the Federation. The first sentence of the resolution read as follows: "The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher." At the request of a representative of a television channel, the applicant consented to a second interview and to answer further questions. One of the questions was as follows: "Mr. Gallagher, what is your reaction (or response) to the Court's decision?" To this question the applicant replied: "I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs . . . I believe that that has been the main reason for the court changing its mind." It has been held by the Federal Court that in making that statement, the applicant was guilty of a contempt of Court. (at p242) 3. Before us counsel for the applicant submitted that the Federal Court, in convicting the applicant, relied entirely on the principles stated by Rich J. in R. v. Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 and that those principles imposed an undue and unwarranted restriction on the freedom of speech and discussion and that this Court should adopt the principle, accepted by the Supreme Court of the United States in cases arising under the Constitution of the United States, that a publication should not be held to be a contempt of court unless it amounts to a "clear and present danger" to the administration of justice. (at p243) 4. The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419 and R. v. Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248 before R. v. Dunbabin; Ex parte Williams was decided, and the judgment of Rich J. in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that "it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority": per Dixon J. in R. v. Dunbabin; Ex parte Williams (1935) 53 CLR, at p 447. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment "is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable": R. v. Fletcher; Ex parte Kisch, per Evatt J. (1935) 52 CLR, at p 257. There is no reason to reconsider these principles in the light of the American authorities, which are of course decided on constitutional provisions which have no counterpart in Australia, and which in any case lay down rules not dissimilar to those of the common law. (at p243) 5. It has not been shown that the Federal Court ignored or misapplied proper principles in the present case. The statement by the applicant that he believed that the actions of the rank and file of the Federation had been the main reason for the court changing its mind can only mean that he believed that the court was largely influenced in reaching its decision by the action of the members of the union in demonstrating as they had done. In other words, the applicant was insinuating that the Federal Court had bowed to outside pressure in reaching its decision. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under any outside influence. What was imputed was a grave breach of duty by the court. The imputation was of course unwarranted. In considering whether this statement was calculated to lower the authority of the court, and whether it was necessary in the interests of the ordered and fearless administration of justice to fine or imprison the applicant, the Federal Court was entitled to consider, as it did, the fact that the applicant is a union leader, very well known to the Australian public, holding an important office in a large national trade union, and the fact that some members of the public might have been the more ready to accept the assertions of the applicant as true because of their awareness that on some occasions employers and even governments are influenced by the pressure which trade unions are able to bring to bear. Further, it was open to the court to consider that the publication by the applicant of the resolution of the Federal Management Committee was relevant to the question whether the applicant's statement was a deliberate one, for the court was entitled to think that even if the resolution, by itself, was ambiguous, the circumstances showed that it was to the same effect as the applicant's own statement. On the other hand, in favour of the applicant, it was right to consider that the offending statement was made in the course of a second interview which the applicant might not have expected to be held, that it was only one of a number of statements made, and that the newspapers and television channels responsible for giving publicity to the applicant's statement were not themselves charged with contempt of court. However, there is not the least ground to suppose that the Federal Court overlooked these matters, since all the relevant facts are referred to in the course of the judgments. One final matter upon which reliance was placed by counsel for the applicant was that the statement was made after the proceedings before Keely J. and the Full Court in relation to the matter with respect to which the statement was made had concluded. It is however obviously incorrect to say that public confidence in the administration of the law cannot be affected by comments made about a court after it had given the judgment which was the subject of the comment; the fact that the matter is no longer pending is simply one of the circumstances to be considered. (at p244) 6. There can be no doubt that the offending statement amounted to a contempt of court, and if repeated was calculated to undermine public confidence in the Federal Court. The question whether it was necessary, in order to vindicate and protect the court's authority, to imprison the applicant called for the most anxious consideration, but no ground has been shown to justify our granting special leave in order to interfere with the decision made by the Federal Court. (at p245)
5. Having regard to the expansive matters referred to in the above extract from the judgement of the High Court of Australia, it is now appropriate to consider the substance of the material which was brought to the attention of the respondent in connection with the show cause hearing. The material which is summarised in [8] of the earlier decision accuses the named Principal Member of this Tribunal of inappropriately having released from prison a person who has killed a hitchhiker and thereby given access to that person to spread aids in a woman's prison and to rape the inmates. There is also a reference to the consequential effect of the actions of this Member on young boys pimped out to gay men by their lesbian mothers. The material which is contained in [17] of the earlier decision accuses the person responsible for the selection of NCAT panels to determine discrimination matters, presumably the President, to have selected members who support "the homosexual agenda" either by reason of political conviction or sexual orientation. The Members appointed to determine these matters are said to be subservient to the interests of the President of the Anti-Discrimination Board and presumably influenced by him or her.
6. All of this material constitutes "baseless attacks on the integrity or impartiality of" the members of the Tribunal. The respondent has insinuated that the Tribunal has "bowed to outside pressure in reaching its decision(s)." In the case of the named Principal Member, not only is there a baseless and scurrilous attack on her integrity, but the material smacks of allegations that in some way this member has connived at the inappropriate release of persons from imprisonment in circumstances where such persons are prone to cause harm to others.
7. It may be understood that in the real world judicial officers and tribunal members must be prepared to deal with, live with, and deflect undue and inappropriate criticism of their work in the courts and tribunals, especially at the hands of the popular press eager to sensationalise a particular story about a particular individual or matter. It has been said that judicial officers must take a robust view of criticism levelled against them. Notwithstanding this, I am satisfied that the material concerning the named Principal Member to which I have referred as published by the respondent on his website in the circumstances to which I have referred is such that it is capable of constituting contempt of this Tribunal in the manner set out above. I am satisfied also that the respondent published the material referred to in [17] of the earlier decision and that that material constitutes contempt in the manner set out above. There is no basis to assume that there is any appropriate excuse available to the respondent for this conduct.
8. Accordingly, I intend referring this matter to the Supreme Court of NSW pursuant to the provisions of section 73 (5) of the Act.

The nature and extent of the contempt of which, on my view, the respondent appears to be guilty

1. In addition to the published material referred to in [17] in the earlier decision, the conduct of the respondent which it appears to me on my own view demonstrates that the respondent is guilty of contempt of this Tribunal is that which is constituted by his failure to obey the several orders of this Tribunal which I have particularised in [92] of the earlier decision as amplified by [93].
2. I have set out earlier in these reasons for decision an extract from the decision of the High Court of Australia in Mudginberri. It is sufficient for present purposes that I repeat the observations of the Court that; "the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests." I repeat also my summary of the effect of that decision in determining whether or not there has been conduct either by way of a deliberate commission or omission as constituting a failure to comply with orders which may be characterised as contempt which I set out in Bott, extracted above; Accordingly, in considering the conduct of the respondent it is appropriate to determine whether it is a "deliberate commission or omission which is in breach of an ... order (which will thereby)... constitute ... wilful disobedience unless it be casual, accidental or unintentional." "Deliberate" where used in this context does not reflect conduct where there is a direct intention to disobey an order. It will include conduct where the respondent, being aware of it, had "no direct intention to disobey the order". Significantly for the purpose of these proceedings, the conduct will remain characterised as wilful "even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty"
3. It is sufficient only to refer to the number of instances in which the respondent failed to comply with orders of the Tribunal requiring him to desist from the further publication of unlawful material and to pay monies if he had failed to furnish the appropriate apologies which are referred to in the narrative contained in the earlier decision as evidencing a deliberate failure to comply with orders of the Tribunal and which constitutes wilful disobedience of those orders. Such failure to comply cannot be characterised as being casual, accidental or unintentional. Indeed, the respondent has professed in material published on his website as recorded in several of the decisions of this Tribunal that he had no intention of complying with the orders. It is difficult to imagine a more patent example of a contumelious intentional and deliberate disregard of the orders of this Tribunal than that which has been undertaken by the respondent in the several sets of proceedings which are the subject of these reasons for decision.
4. The only excuse sought to be proffered by the respondent is that some of the material was published without his knowledge on his website by Luke McKee, and that at some stage he had given Mr McKee consent to publish that material. This has been a constant theme of the respondent by way of excuse proffered in the various proceedings conducted by the Tribunal over many years. To date the respondent has not produced one scintilla of evidence referred to in any of the decisions of the Tribunal, or in the course of the proceedings which I have conducted that would corroborate in any way any participation by Mr McKee in the publication of the material the subject of these proceedings. In these circumstances it is difficult to accept what was said by the respondent as constituting any form of reasonable excuse as referred to in section 73 (2) of the Act. Indeed, as the respondent readily acknowledged on many occasions, he ultimately remained responsible for the material published on his website. The evidence is that the offensive material was published under his name, and presumably he basked in the reflective glory of that material, whether written by Mr McKee or not.
5. I have no hesitation in concluding that it appears on my own view that by reason of these matters the respondent is guilty of contempt of this Tribunal in the manner referred to in section 73(5) of the Act and that it is appropriate that his conduct be referred to the Supreme Court accordingly.

Conclusion and orders

1. For the reasons which I have earlier set out I conclude that it is appropriate that I refer the conduct of the respondent as described in [17] and [91] of the earlier decision, and the conduct which is referred to in [92] and [93] of the earlier decision to the Supreme Court of NSW pursuant to the provisions of section 73 (5) of the Act.
2. In determining to refer these additional matters to the Supreme Court of NSW under section 73 (5), I am conscious also that the voluminous litigation between the applicant and the respondent has occupied the time and resources of this Tribunal over many years. The respondent blames the applicant for continuing to embark upon some malicious campaign to vilify and harass him by continuing to make complaints about him to the President of the Anti-Discrimination Board who in turn initiates proceedings against him in this Tribunal. The respondent fails to understand, and may be incapable of understanding, that if he desisted in continuing to publish material of the kind which is to be found on his website, the applicant would have nothing to complain about and the seemingly endless proceedings before this Tribunal would cease. Whether or not the respondent derives some inexplicable pleasure out of seeing himself as being victimised by the applicant in the course of proceedings conducted in this Tribunal, it is clear that the respondent never has had and never will have any particular concern that he should cease conducting his unlawful activities in the publication of his material on his website or any concern that he should obey the orders and directions of this Tribunal as being lawfully binding upon him. Perhaps the status and presence of the Supreme Court of NSW will have some greater effect. This represents an additional reason why it is appropriate to refer the matters which I have already described to the Supreme Court.
3. I hereby make the following orders; 1. I hereby refer to the Supreme Court of NSW for determination the allegation that the respondent John Christopher Sunol is guilty of contempt of this Tribunal made by the applicant Garry Burns. Such contempt is constituted by the publication by the respondent of the material described in [7], [8], and [9] in Burns v Sunol [2018] NSWCATAD 78, and which I have found is capable of constituting contempt of the Tribunal The referral is made pursuant to the provisions of section 73 (5) of the Civil and Administrative Act. 2. I hereby refer to the Supreme Court of NSW for determination pursuant to the provisions of section 73 (5) of the Civil and Administrative Act the conduct of the respondent John Christopher Sunol which I describe hereunder, because it appears to me on my own view that by reason of that conduct the said John Christopher Sunol is guilty of contempt of this Tribunal. The conduct is; 1. the publication by the respondent of the material described in [17] in Burns v Sunol [2018] NSWCATAD 78 2. the failure of the respondent to comply with the orders of this Tribunal particularised in [92] and in [93] in Burns v Sunol [2018] NSWCATAD 78. For ease of understanding I set out again the contents of [92], to which I have added reference to the citations of the several Decisions of the Tribunal 1. the failure of the respondent to make payment of the monies ordered to be paid on 22 January, 2014 as set out in paragraph [38] above. Burns v Sunol [2014] NSWCATAD 2; (22 January 2014) 2. the failure of the respondent to refrain from publishing further material "to the same or similar effect" by order of the Tribunal made on 22 January 2014 as found in paragraph [50] above. Burns v Sunol [2014] NSWCATAD 63; (14 May 2014) 3. the failure of the respondent to refrain from publishing materials to the same or similar effect on any website controlled by him as ordered by the Tribunal on 14 May 2014 as set out in paragraph [43] above constituted by the publication of material identified in subsequent Decisions of the Tribunal. Burns v Sunol [2014] NSWCATAD 61; (14 May 2014) 4. the failure of the respondent to make payment of the monies ordered to be paid on 14 May 2014 as set out in paragraph [44], [49] and [50] above. Burns v Sunol [2014] NSWCATAD 61; (14 May 2014), Burns v Sunol [2014] NSWCATAD 62; (14 May 2014), Burns v Sunol [2014] NSWCATAD 63; (14 May 2014) 5. the failure of the respondent to refrain from publishing material as identified in paragraph [54] above pursuant to order made on 25 June 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal. Burns v Sunol [2015] NSWCATAD 131 (25 June 2015), Sunol v Burns [2015] NSWCATAP 207 (24 September 2015), Burns v Sunol [2016] NSWCATAD 16 (21 January 2016), Burns v Sunol [2016] NSWCATAD 74 (19 April 2016), Burns v Sunol [2016] NSWCATAD 81 (29 April 2016), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWCATAD 215 (30 June 2017), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2018] NSWCATAD 10 (10 January 2018) 6. the failure of the respondent to refrain from publishing material as identified in paragraph [56] above pursuant to an order made on 24 September 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal. Sunol v Burns [2015] NSWCATAP 207 (24 September 2015), Burns v Sunol [2016] NSWCATAD 16 (21 January 2016), Burns v Sunol [2016] NSWCATAD 74 (19 April 2016), Burns v Sunol [2016] NSWCATAD 81 (29 April 2016), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWCATAD 215 (30 June 2017), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2018