Burns v Sunol

Principles applying to the exercise of the power to award compensation for loss or damage

1. Where the Tribunal finds a complaint substantiated in whole or in part, among other things, it may order a respondent to pay the complainant damages not exceeding $100,000. Section 108 of the Anti-Discrimination Act relevantly states: 108 ORDER OR OTHER DECISION OF TRIBUNAL (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (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, … (Emphasis added)
2. In Commissioner of Police, NSW Police v Mooney (No 3) (EOD)[2004] NSWADTAP 22 (Mooney) at [23]-[35], an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal (the ADT), examined the meaning of the phrase "loss or damage suffered by reason of the respondent's conduct" in the then s 113 of the Anti-Discrimination Act (which is substantially in the same terms as s 108(2)(a) of the current version of that Act). The Appeal Panel noted at [27] that while the principles of tort and contract law relating to the assessment of damages provide guidance, they are not "controlling".
3. Citing in support Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at [82], the Appeal Panel concluded at [28] that in applying s 113, the complainant must establish that the respondent's contravention of the Anti-Discrimination Act "materially contributed" to the claimed loss or damage. This approach has consistently been followed by the ADT and NCAT. See for example, Margan v Manias [2014] NSWCATAP 16 at [39]; Burns v Sunol [2017] NSWCATAD 215 at [70]; Smith v Department of Education and Communities [2013] NSWADT 162; Carter v Brown [2010] NSWADT 109.

Claim for loss or damage

1. It falls to Mr Burns to establish on the balance of probabilities, that, as claimed: 1. He experienced feelings of upset, hurt and anger; and 2. Mr Sunol's conduct, the subject of the complaints found to be substantiated, materially contributed to him experiencing feelings of upset, hurt and anger and/or damage to his reputation.
2. On 16 January 2017, Mr Burns was directed to file and serve any material in support of his claim for compensation and to identify any material previously filed in these proceedings on which he relies. In a letter filed on 16 January 2018, Mr Burns stated that he relied upon statements (including attachments) dated 10 May 2017, together with letters and submissions filed on 16 January 2017.
3. In a statement given to Police on 12 April 2017, Mr Burns wrote that after filing a judgement debt in the NSW Local Court on 10 October 2017, Mr Sunol posted a number of YouTube clips on his website referring to compensation awarded to him by NCAT and calling him, among other things, a "child Molesting Faggot" and a "thieving looking child molesting fagot". He stated that these clips caused him to become "very upset, hurt and angry" as he found them to be extremely offensive as they implied that he had sex with children. He wrote that the posted statements also caused him to have a "genuine concern for his personal safety" because it might cause someone who views the clips to believe he was a paedophile and seek to "bash or even kill me".
4. In a statement filed on 16 January 2018, Mr Burns claimed that he was still "raw from the attack on him", by which we understand him to mean the posting of the Video on Mr Sunol's website.
5. In addition, Mr Burns relies upon a report prepared by a psychologist in late 2013. 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. 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".
6. Despite the absence of any independent material, we find that Mr Burns experienced emotions of "upset, hurt and anger" and that the publication of the Video and the offending Statement in particular, materially contributed to Mr Burns experiencing those feelings. We find it likely that the publication was not the sole cause that those emotions were invoked. As a review of the cases involving Mr Burns and Mr Sunol reveals, this is not the first time Mr Burns has claimed to experience emotions of this kind as a result of similar statements published by Mr Sunol. See for example, Burns v Sunol (No 2) [2017] NSWCATAD 236 at [83].
7. In addition, we find that the publication materially caused Mr Burns to experience fear as a consequences the reactions of people on learning that he had been named as a paedophile.

Should an order for compensation be made?

1. Section 108(2)(a) of the Anti-Discrimination Act does not, as suggested by Mr Burns, create an automatic entitlement to damages where the Tribunal is satisfied that a complainant has suffered loss or damage as a result of the respondent's conduct. The power to award damages is discretionary, to be exercised having regard to the circumstances of the particular case and the remedial character of the Anti-Discrimination Act.
2. Mr Burns contends that an award of $5,000 is fair and reasonable, citing in support the decision of Margan v Taufaao [2017] NSWCATAD 216. In that matter the Tribunal (differently constituted) found that an assault by Mr Taufaao on Mr Margan in a nightclub, accompanied by the statements "fuck off faggott" and "I'm going to kill you faggott", constituted unlawful vilification on the ground of homosexuality. The Tribunal ordered Mr Taufaao to pay Mr Margan damages of $10,000.
3. In support of the submission that the Tribunal should decline to exercise the power to award damages, Mr Sunol repeated many of the same arguments he previously advanced, arguing that the complaint could not be substantiated. As that issue has been determined, in these reasons we will confine our consideration to the arguments advanced by Mr Sunol which are relevant to the question of whether an award for compensation should be made.
4. Mr Sunol argues, first, that Mr Burns has failed to take reasonable action to mitigate his loss, and second, that he is not in a financial position to pay an award for compensation.
5. With respect to the first of these arguments, Mr Sunol contends that any award for costs should take account of Mr Burns' failure to take steps to minimise his loss. He argues that Mr Burns cannot expect to be compensated for feelings of hurt and anguish (which he does not accept Mr Burns experienced) in circumstances where it was reasonably foreseeable that if he visited his website he might find the content to be offensive. Mr Sunol points out that Mr Burns did not stumble across his website but rather was using Google Alerts, to notify him by email each time his name was mentioned on the website.
6. This issue was considered in Burns v Sunol [2012] NSWADT 246. The Tribunal (differently constituted) noted at [112] that the general principles governing compensation in tort and contract cases provide that a party entitled to compensation has a duty to take reasonable steps to mitigate the damage or loss caused by the relevant conduct of the opposing party. Referring to Mooney at [43] - [46], the Tribunal wrote at [128] that while the duty to mitigate may be applicable in assessing damages under the Anti-Discrimination Act, there is no "hard-and-fast rule" that it be applied. Nonetheless, the Tribunal considered it relevant that Mr Burns could choose to visit Mr Sunol's website in circumstances where it was reasonably foreseeable that he might encounter "hurtful material". In addition, the Tribunal considered it relevant that Mr Burns' foreknowledge of this likelihood would have enabled him to prepare emotionally for encountering such material. The Tribunal considered these factors relevant to the assessment of damages and a reason to award an amount at a "markedly lower level" at [128] - [132].
7. We agree with this analysis. Mr Burns visited Mr Sunol's website in circumstances where he was aware that it was likely to contain content that might cause him to suffer emotions of the type of the subject of his claim for damages. As the history to the complaints between the parties makes clear, Mr Burns has consistently alleged that Mr Sunol publishes material on his website that vilifies homosexuals as a group, and on occasion himself as an individual, and this causes him to suffer distress and anguish. While this history of itself does not operate to deprive Mr Burns of an award of compensation, nonetheless in our view it favours an award at the lower end of the "scale".
8. The second argument advanced by Mr Sunol is that he lacks the capacity to pay an award for compensation, pointing out that shortly after being discharged from bankruptcy late last year he was ordered to pay Mr Burns over $50,000. We are unaware of any authority for the proposition that a respondent's financial capacity to meet an award for damages is a relevant factor in the assessment of damages.

Should an award for damages be made and if so what amount should be awarded?

1. It is widely acknowledged that the task of assessing damages for non-economic loss as a result of a respondent's contravention of the Anti-Discrimination Act is notoriously difficult. The "injury" is often intangible and difficult to measure. Wilcox J cautioned in Hall v Sheiban (1985) ALR 503 at [543] that because damages for matters such as injury to feelings, distress, and humiliation "are not susceptible to mathematical calculation", this is not a basis to ignore these items. In Alexander v Home Office [1998] 1 WLR 968 at 975, the English Court of Appeal cautioned against awarding minimal damages in discrimination cases, reasoning that "this would tend to trivialise or diminish respect for public policy".
2. In Margan v Taufaao, after reviewing the cases involving complaints of unlawful vilification under the Anti-Discrimination Act where damages for "non-pecuniary harm" were awarded, the Tribunal concluded at [99] that the awards were in the range of $1,500 to $20,000.
3. Without the benefit of considered submissions, this is not the case to consider whether the quantum of damages awarded by NCAT in this class of matter is appropriate. In any event, the range is at best a guide to the measure of damages. The circumstances of the particular case must always be the determinative factor.
4. Mr Burns has provided us with limited evidence about his experience of feeling upset, hurt and angry after viewing the Video. There is no evidence to suggest that Mr Burns continues to suffer from PTSD, as his then treating psychologist believed in 2013. Nor is there any evidence that viewing the Video materially aggravated that, or any other pre-existing condition. Nor is there any evidence of the duration, or likely duration of Mr Burns' experience of feelings of upset, hurt and anger. Nor is there evidence that Mr Burns required or sought treatment, to manage his experience of these emotions. Nor is there evidence to suggest that that experience materially affected his enjoyment of life. Finally, as noted above, it was reasonably foreseeable to Mr Burns that by visiting Mr Sunol's website he would experience emotions of the type he now reports.
5. It may be that Mr Burns' feelings of upset, hurt and anger experienced as a result of Mr Sunol's contravention of the Anti-Discrimination Act, which is the subject of this Complaint, will continue for a significant period, necessitate medical treatment and/or have an adverse impact on other aspect of his life. However, that is not the evidence before us. While we appreciate that Mr Burns is self-represented, this does not permit us to fill in the gaps in the evidence by speculating on how he has been affected by Mr Sunol's contravention of Anti-Discrimination Act. Findings made by this Tribunal must be based on probative evidence. While we accept that Mr Burns experienced feelings of upset, hurt and anger as a result of Mr Sunol's contravention of the Anti-Discrimination Act, the available evidence does not justify an award of damages in the sum of $5,000. In our view, an award of $2,500 is more appropriate. In reaching that decision we are mindful of the cautionary words of the Court of Appeal in Alexander v Home Office that awarding minimal damages for non-economic loss in discrimination cases, may "tend to trivialise or diminish respect for public policy".

Claim for aggravated damages

1. Mr Burns submits that Mr Sunol's conduct is so "pernicious and deliberate" it warrants aggravated damages.

Length of time the Video was posted on Mr Sunol's website

1. Before considering whether an award for aggravated damages can and should be made, it is necessary to resolve a factual issue in dispute, namely the period the offending Video remained on Mr Sunol's website. Mr Burns claims it was on the website for about three weeks. Mr Sunol claims he removed it within 24 hours. He claims he posted the Video in a fit of pique after being served by a Sheriff of the NSW Local Court with a notice of a judgement debt owed to Mr Burns. It is not in dispute that Mr Sunol placed the Video on his website on or about 9 January 2017.
2. In a letter to the President of the Anti-Discrimination Board sent on 3 March 2017, Mr Burns claimed the Video was not removed until 2 February 2017, the day Mr Sunol was charged with the offence of "using a carriage service to menace, harass or cause offence" under s 474.17 of the Criminal Code Act 1995 (Cth). In a subsequent letter to the President dated 7 March 2017, Mr Burns claimed he downloaded and viewed the Video on 2 February 2017 at about 11:30 am.
3. On 20 February 2017, Mr Sunol posted on his website that he "made a mistake" in posting the Video on his website and took it down within 24 hours. He repeated that claim in a letter to the President, sent on 13 March 2017, responding to the complaint made by Mr Burns.
4. Each party provided us with material about Mr Sunol's conviction for the offence of using a carriage service to "menace, harass or cause offence". It establishes that as late as 12 April 2017, Mr Sunol was in breach of the bond he gave to the Local Court on 2 March 2017 to be of good behaviour by not continuing any activity with a Commonwealth "carriage service", which identified or named Mr Burns. However, it does not disclose whether the subject Video remained on Mr Sunol's website until 2 March 2017, or was part of the material which remained on the website until 12 April 2017.
5. In the absence of any independent evidence, we are left therefore with the conflicting claims made by the parties. Mr Burns gave a clear account of viewing the Video on the morning of 2 February 2017, the day Mr Sunol was charged with offences under the Criminal Code Act. On the other hand, Mr Sunol's account of taking the Video down "within 24 hours" lacks detail. Notably, he does not explain why he felt impelled to act to remove the Video within 24 hours of having posted it, in circumstances where he first learnt that a complaint had made about the Video three weeks later.
6. We find it more likely than not that the subject Video was not removed from Mr Sunol's website until 2 February 2017.

Principles relating to aggravated damages

1. Aggravated damages are designed to compensate a plaintiff for increased distress due to the manner in which the subject wrong was committed. The appellate courts have warned of the dangers of awarding double compensation if separate awards are made for distress, insult and injury and for aggravated damages. In Australian Anti-Discrimination Law by N Rees, S Rice and D Allen, (Federation Press, 3rd ed, 2018) it is suggested (at [16.4.15]), in our view correctly, that rather than making separate awards a more sensible approach may be to bear in mind that a person may have sustained higher levels of distress, insult and injury to feelings as a result of the manner in which the wrong was committed. At all times it must be borne in mind that damages awarded under the Anti-Discrimination Act are compensatory not punitive.
2. We understand Mr Burns to argue that the power to award aggravated damages should be exercised for two reasons. First, because the Video remained on Mr Sunol's website for about three weeks. Second, because Mr Sunol continued to publish material about him after undertaking to the Local Court in March 2017 that he would stop doing so.
3. With respect to the first argument, we have taken into account the length of time the Video remained on the website in the assessment of damages. With respect to second, we are not persuaded that aggravated damages are available for Mr Sunol's actions in posting material in breach of the undertaking he gave o the Local Court in March 2017. In reaching that conclusion we note that apart from the fact that Mr Sunol continued to mention Mr Burns' name on his website, we have not been provided with any information about the type of material he posted after 2 February 2017.

The double jeopardy argument

1. Mr Sunol argues that it is not open to the Tribunal to award damages because "this is the second charge for the same utterance", namely his conviction for the offence under s 474.17 of the Criminal Code Act.
2. We understand Mr Sunol to be referring to the common law rule against a person being placed in "double jeopardy" - that is, being convicted of the same crime in respect of the same conduct on more than occasion: Davern v Messel [1984] HCA 34; (1984) 155 CLR 21.
3. This argument is misconceived. Leaving to one side the fact that the conduct found by us to amount to a contravention of the Anti-Discrimination Act is not criminal in nature, that conduct is not the same conduct which was the subject of the offence for which Mr Sunol was convicted by the Local Court.

Orders

1. Pursuant to s 108(2)(a) of the Anti-Discrimination Act, Mr Sunol must pay Mr Burns the sum of $2,500 within 28 days.

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: 04 June 2018