Burns v Sunol

NCAT Administrative and Equal Opportunity|2017-11-14

Introduction and background

These proceedings have their genesis in an Application filed by the applicant Garry Burns on 17 October 2017. In that application the applicant sought a finding by this Tribunal pursuant to the provisions of section 73 of the Civil and Administrative Tribunal Act ("the Act") that the respondent John Christopher Sunol was in contempt of this Tribunal. The basis of the application was a publication of certain material by the respondent on a website concerning a Principal Member of this Tribunal and which was alleged to have been published in connection with certain proceedings in this Tribunal being conducted by her between the applicant and the respondent.
The proceedings were amended pursuant to an order made by me with the consent of the respondent by which the applicant in lieu of seeking an order of contempt from this Tribunal sought an order that the proceedings be referred to the Supreme Court of NSW pursuant to the provisions of section 73 (5) of the Act.
Section 73 of the Act is in the following terms; 73 CONTEMPT OF TRIBUNAL (1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court. Note : Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer). (2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission. (3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal. (4) For the purposes of this section: (a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and (b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and (c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied. Note : Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section. (5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination. (6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

The basis for the allegations of contempt by the respondent as contained in the application

The basis for the allegation that the respondent was in contempt of this Tribunal is contained within an Internet site by which the respondent published material from time to time, known as a blog.
A copy of material published on this Internet site became evidence in the proceedings. The applicant gave evidence that he accessed the site on 15 October 2017 at 10:42 am and on that date printed a copy of the material contained on the site which is in evidence. That material indicates that the site was known as johnsunol.blogspot.com and was hosted by webcache.googleuser.content.com. The respondent conceded for the purpose of these proceedings that he was the publisher of this Internet site, although, as will be seen, he denied personally placing the alleged contemptible material on the site.
The publication as searched by the applicant, and as attested to by the printed copy which is in evidence contained a number of references to a named Principal Member of this Tribunal bearing date 28 January 2017. Included within this material are the following matters; 1. a reference by name to the Principal Member "@NCAT NSW" as having "let's trainee hitchhiker killer out of jail and run around a woman's prison with AIDS AND RAPE". Explanatory material states that the named Principal Member was the "NCATNSW judge who ruled (in effect) young boys who were pimped out to gay men by their lesbian mothers….. are doing hate speech by criticising their own life of being urged into child prostitution by their lesbian mothers…" 2. a repeat of the information contained above with a photograph of the Principal Member 3. a reference to a decision of the named Principal Member "that the June 25 case against John Sunol should not be appealed….." 4. A reference to certain aspects of the employment engaged in by the named Principal Member prior to appointment to NCAT.
The printout also contains material placed in a margin under a heading entitled "The Link" to the effect that "vexatious litigation happened to me, Burns vs Sunol and Colikier vs Sunol. This is the definition of vexatious litigation which what happened to me on many occasions over the years I have been in and out of court. The battle lines have been drawn."
I should immediately state that the conduct of the Principal Member described in paragraphs (1) and (2) is beyond any power or jurisdiction of this Tribunal. This Tribunal has no power to make orders allowing any prisoner to be released from prison. It is difficult to comprehend how anyone could make an assertion that a Member of this Tribunal could have engaged in any conduct of the kind described in this publication.

Characterisation of the published material

The applicant formulated a charge of Contempt for the purpose of the original application brought by him in which he described the statements published on the Internet site concerning the Principal Member as being "defamatory, insulting, pernicious and offensive." Furthermore, they were said to be untrue, false and malicious and had the effect of discrediting and impugning the character of the Principal Member with a consequence that that Member "cannot be trusted and accepted as a person likely enable to fulfil" the duty of a Member.
The characterisation of the published material is not contentious because the respondent conceded that it was incorrect, was "totally abhorrent" and that there was no factual basis for the publication of that material. He spoke of the Principal Member as being a person who performs duties in a professional and appropriate manner and he said he did not condone in any way the publication of the material. I shall, however, returned to this apparent declaration of praise expressed by the respondent for the purpose of avoiding a referral of these proceedings to the Supreme Court.

Some further evidentiary material

For the purpose of determining these proceedings it is necessary that I make reference to some other matters concerning the relationship, or more accurately the lack of any relationship, between the applicant and the respondent. Unfortunately, there have been many proceedings before this Tribunal between these two parties conducted over several years. In his evidence the respondent said that since 7 March 2014 the applicant has lodged 18 complaints concerning his conduct to the Anti-Discrimination Board of NSW "resulting from material published directly on johnsunol.blogspot.com.au by him and another person whom he named as Luke McKee. He said that those 18 complaints, of which he provided details, had been referred to this Tribunal "for public hearings in which I was deemed responsible and made the respondent of the complaints." He relied on those complaints as evidence of a course of harassment conducted against him by the applicant. Furthermore, he characterised the applicant as participating in vexatious litigation against him.
The respondent filed a document on 14 November 2017 which he described as being an "initial response" to the contempt application made by the applicant for the purpose of the directions hearing. A number of documents were annexed to this document including a spreadsheet listing all of the proceedings between himself and the applicant before this Tribunal and its predecessor. Other documents which were annexed referred to other proceedings between the same parties together with police proceedings initiated against the respondent alleged to have been instigated by the applicant. There is also annexed some historical material concerning the personal circumstances of the respondent.
One matter which pervades this documentation and which the respondent repeated on several occasions in his evidence and submissions in these proceedings was a claim that the bulk of the offending material was placed on his blog by Luke McKee without his knowledge and consent. I shall return to this matter later in these reasons for decision.
Annexed also was a statement made by the respondent on 22 June 2017 in relation to police proceedings brought against him. In that statement the respondent accused the applicant of colluding with a member of Parliament "and a certain very high officer in the NSW Police Force to get a criminal conviction on me because of what I know about the corruption in the administration of "homosexual vilification" antidiscrimination law in New South Wales….." He also accused the President of the Anti-Discrimination Board of abusing his statutory obligation "in using and encouraging (the applicant) to produce so many complaints against me, to make case law……"
Importantly, for present purposes, the statement includes the following material; 23. Most of the case law under section 49 ZT of the Anti-Discrimination Act (Homosexual Vilification) comes from decisions made by biased panels in the many Burns v Sunol cases when I was unrepresented in front of the panels and unable to coherently defend my comments in the public interest (there is then a reference to a spreadsheet of the several decisions). The problem is that the NCAT panels are hand-picked to have on them people who either support the homosexual agenda as a result of their political convictions or support the homosexual agenda due to their minority sexual orientation. Either way they will always substantiate homosexual vilification complaints from Garry Richard Burns because they are referred by the President of the Anti-Discrimination Board. He (or the acting President see at the present time) are not asking NCAT to dismiss the complaints. They want them legally substantiated in order to deepen and strengthen homosexual vilification case law in line with the homosexual agenda. 23. The homosexual vilification panels at NCAT do not serve the interests of the respondent's human rights, in dealing with the torrent of complaints by Garry Richard Burns, but serve the interests of the President of the Anti-Discrimination Board. And the Anti-Discrimination Board is the spearhead of the homosexual agenda in New South Wales, Australia. I shall refer to this material further.
In the course of his submissions and evidence in these proceedings, the respondent repeated his assertion that the material about which the complaint is made in these proceedings was published by Luke McKee. However, he could not provide any evidence to substantiate this assertion, and was unable to provide any evidence about any steps taken by him immediately upon becoming aware of that publication. Indeed, some of the respondent's evidence was to the effect that he was not looking at the website regularly, but when he had occasion to do so he eventually closed it down and started another one. Again, he was unable to provide any evidence to substantiate these assertions. Nevertheless, the respondent acknowledged that because the material had been published on "his" website he had ultimate responsibility for any adverse consequences.
During the course of his submissions I asked the respondent, having regard to his concession that the published material was abhorrent, whether he intended making an apology. The respondent was granted an adjournment to enable him to formulate an apology in his own words. That apology, with minor amendments which I have made for the purpose of its publication in these proceedings, is in the following terms; 1 The material that was complained about on (the named Principal Member) is totally abhorrent, disgusting and of serious defamation. It lies within the reach of criminal defamation and for this to be put on my blog for the public to see and read without evidence meets the criminal threshold of serious vilification - defamation, - this if it does not meet criminal standards in my mind it should. I see no use of this part to attack a member of the public Judiciary but without evidence as anything but to attack the common law and other members in the public. This (Member) is a hard-working member of the discrimination tribunal who does not deserve this. 2 Whilst I do not accept being the writer of this and ethically I do not accept responsibility, I understand that with me being the owner of the blog and the fact that the blog was in my own name, I have to accept legal responsibility as a publisher of a news media does about the articles written on their media outlets. Whilst I had no real knowledge of this article until after it was published I still offer my apology to (the named) Tribunal member and take responsibility of this only being under my name whilst I am not the author of the so-called post. 3 I will in future keep a check on my blog every day - never write such articles that disparage people like this article and not allow such vilification/defamation/slander on my blog again. I will also check on this blog and delete any such comments as well to other articles that other people put on the blog. Conclusion I do not attack people - I debate ideas and philosophies only.
I observe that the respondent has emphasised in this form of apology his respect for judicial and Tribunal members and his abhorrence concerning the type of criticism contained in the published material which is at the heart of the applicant's application. However, I observe also that the respondent personally engaged in similar scurrilous criticism of members of this Tribunal in the material which he made available during the course of this hearing which I have extracted in [17] above. The named Principal Member who is referred to in the material published on the respondent's blog was a member of the Tribunal which determined a number of the proceedings brought against the respondent by the applicant. There must be considerable doubt about the sincerity of the respondent and the genuine nature of his apology in this regard. Moreover, as will be seen, the respondent has previously been ordered by this Tribunal to make apologies to the applicant on many occasions and, whether or not given, has continued to persist with the same conduct.

The prior proceedings

As I have previously indicated, the respondent invited me to have regard to the prior proceedings involving himself and the applicant for the purpose of demonstrating that he was in reality the victim of a campaign of harassment and vilification being directed to him by the applicant. Whilst there was no discussion concerning those matters during the course of the hearing, I did have regard to them in the course of preparing these reasons for decision. The contents of the various published decisions made by this Tribunal and its predecessors are instructive in determining the appropriate approach to take in disposing of these proceedings. In order to demonstrate this, I shall make reference to them to varying degrees as I consider appropriate for present purposes. I should add that in many of the matters conducted by this Tribunal it was constituted by persons other than the Principal Member named in the publication about which complaint is made by the applicant in these proceedings.

Burns v Sunol [2012] NSWADT 246 (28 November 2012)

This is a decision of the former Administrative Decisions Tribunal. The Tribunal found that the respondent had published or was responsible for the publication of the following material; 1. [111024: Context not indicated; appearing on a website not maintained by Mr Sunol]. 'I am not anti gay but anti gay Mardi Gras in Sydney as it is full of criminals... The gay Mardi Gras is a con job and is out to deceave the Australian people. It is full of drugs ect. (Initially published on 4 October 2002, but still accessible on 4 March 2011) 2. [111024: Referring to Westbro Baptist Church Group]. 'Westbro are very right in what they preach, it is just the way they preach it I am in dissagreeance with. They are fighting a very wicked and evil enemy in which they talk about what God really thinks of Fags.' (26 February 2010) 3. [111024: Under the heading 'Thread: who is your Hero today, Mr Magoo or John Christopher Sunol'] 'I speak the truth of these events as these people running Mardi Gras are very very evil and drugs, child pedophilia and else are involved in this event.' (4 October 2010) 4. [111024: Referring to a brief report of a Supreme Court case in the USA, involving one Fred Phelps and said to raise issues of free speech] 'This is an identical case to what I have in Australia in the NSW supreme court. While I might not fully agree with his methods, He is a brave man in attacking these evil people in the Homosexual lobby. I know about Mathew Shepard and from what I found out about from the Homosexual Rainbow groups, Fred is 100% right, Mathew Shepard was a living piece of hojmosexual garbage that got what he deserved when he went and attacked really evil groups, the KKK.' (7 October 2010) 5. [111024: Referring to a newspaper article about 'Greens leader Bob Brown'] 'I am quite dismayed to read such an article on such a wicked and evil man. I believe that this man is going to destroy Australia rather than uplift it and he will bring persecution to the church. I think next he is going to try and take away religious exemption to the Anti vilification laws to make it illegal for the churches and religious organization to refuse to accept gays and lesbians from working inside their organization and joining their congregations. Henry Collier who attacked me unjustly wanted such and look what happened to this man, he has a heart attack and died. That is Gods answer to such evilness.' (15 October 2010) 6. [111024: Referring to a lecture by Father Frank Brennan entitled 'Reconciling religion, politics and human rights] 'I know as I was framed by a Henry Collier, told lies against and set up for to get my name registered as a homophobia. I will not accept it now and not give in speaking about the wickedness and criminality behind the Sydney Gay and Lesbian Mardi Gras. Henry is now dead so I do not have to worry about him and that Rod S is to much of a gutless to do anything to try and stop me.' (4 November 2010) 7. [111024: Referring to a newspaper report that nine men in the UK had been arrested over claims that they had 'groomed teenage girls for sex'] 'This is dreadful and those who are grooming minors for sex need to be locked away for a mighty long time. Just as the poofs groom young boys for sex in the Gay Mardi Gras in Sydney and they need to be shut down as well.' (12 January 2011) 8. [111024: A publication on a web page maintained by Mr Burns, headed 'One Response to BURNS SOUNDS WARNING ON "HITLER STYLE" GAY MARDI GRAS THREAT'] 'This man is very evil...The Mardi Gras is a very wrong event and it is run by child pedophiles and criminals who sell pornography. To put little children in such an event is evil.' (8 February 2011) 9. [111024: Referring to a proposal by Mr Burns for a comprehensive anti-homophobia campaign]. 'Gary Burns calls for a comprehensive national homophobia campaign. The article is just plainly and simply wrong and wicked in the eyes of God. The man who wrote it, Gary Burns, is very repressive and would if he could try to get the Federal Government to legislate to have all the deemed homophobes put on a register... The man would make a homophobic register to the same if not more degree as a child pedophile register.' (11 February 2011) 10. [111043: No specific context]. 'I am working tonight and am not going to Gay and Lesbian Mardi Gras in Sydney. I have reasons for this which are: I am not in favour of this event. It is a perverted piece of living garbage and very defamatory against people in public - also a national security risk of territory attack as Islamic terrorist put their suicide bombers on this kind of activity. This has been set up for use by the criminal elements that help run it.They are drug dealers,They are pedophiles They deal with pornography and xxx material, and put little children in this.They are blasphemers and a national security risk for the whole of Australia most of all they are not only looking for money as they are mega wealthy, and money means nothing to them, it is power to take over the world with alternative legislation which was once frowned up. Most of all they are criminal and evil people It also has political objectives of bringing in unwanted, uneeded and socialy bad legislation to Australia and else where through its enormous marketing capability They use one very good method to shut up people like myself from telling the truth so they can keep their lies going.and that is The use of vilification and equal opportunities legislation...' (5 March 2011) 11. [111024: The statement attributed to Mr Sunol in the Newcastle Herald article]. 'What I'm saying is, the Mardi Gras is run by drug dealers and paedophiles, not all homosexuals [are drug dealers and paedophiles]. I've seen men with no pants on marching down Oxford Street in Sydney, which is repugnant. If they'd done that in Iran, if they'd done that in Iraq, they'd be murdered. I'm speaking out against it because the homo-nazis and femi-nazis are taking away our right to speak against them.' (8 March 2011) 12. [111120: Referring to a radio news report of Derryn Hinch being sentenced to home detention] 'Those in corruption will be exposed (as well as the Mardi Gras leaders as they are wicked people and criminals).' (22 July 2011) 13. [111120: Republication of part of an email composed by Mr Sunol in 2003 and appearing on a website called 'Trephination'- access obtained through clicking onto the words 'Missing Wives and the War on Freemasonry' on one of Mr Sunol's websites - these words on his site were preceded by the statement 'NB: this is cut and pasted material taken from online which is written by me to others some seven to eight years ago around 2003'] 'I will use these cheap rail fares of $3.30 to anywhere... to spread anti Mardi Gras material and... material inciting people to speak out against the Femenist agenda and the Gay agenda. I will not stop ever until I get locked up and then I will just incite those others inside to dissobey the law concerning villification of gays and other evil laws ect... I am also an eternal enemy to the femenist equal opportunity agenda and this will remain and not ever change. You all loose, I win so forget it sister.' (24 July 2011) 14. [111120: As in 13, but a different email by Mr Sunol] 'Dogwomble you are a trouble making bastard of a dirty and filthy minded faggot and poof. I refuse to state anything else.' (24 July 2011)
The Tribunal discussed the relevant legislative provisions and included within its decision the following; The provisions of the Act making homosexual vilification unlawful in certain circumstances are sections 49ZS and 49ZT. At all relevant times, these were in the following terms:- 49ZS Definition In this Division: public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. 49ZT Homosexual vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. Reference should also be made to sections 88 and 104, which state as follows: 88 Vilification complaints A vilification complaint cannot be made unless each person on whose behalf the complaint is made: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim. 104 Proof of exceptions Where by any provision of this Act or the regulations conduct is excepted from conduct that unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent.
In discussing the question of vilification in the context of any order in the nature of injunctive relief, the Tribunal said in part; In a decision to which we have already referred, Collier v Sunol [2005] NSWADT 261, the Tribunal held that Mr Sunol had unlawfully vilified homosexuals through posting on the internet publications closely resembling those that we have held to amount to unlawful vilification. On appeal by Mr Sunol (see again Sunol v Collier (EOD) [2006] NSWADTAP 51), this decision was upheld as to liability, but the Tribunal's orders by way of relief were set aside and different remedies ordered. The orders made by the Appeal Panel included injunctive orders in the following terms:- 3(a)... Within fourteen (14) days of the date of this decision, Mr Sunol is to remove from every website controlled by him, the following material: ... [the specific statements found to have amounted to unlawful vilification were quoted here] and all material to the same or similar effect concerning homosexual men, lesbians, homosexuality or the gay lobby. 3(b)... Mr Sunol is to refrain from publishing the material referred to in order 3(a) above, including statements to the same or similar effect, on any website whether or not controlled by him. As indicated in a later decision to which we have already referred (see Collier v Sunol [2008] NSWADT 339 at [29 - 39]), Mr Sunol did not obey the latter order. This provides no grounds for declining to make an order of a similar nature in these proceedings.
The Tribunal ordered that; 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him: (a) the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of the decision; and (b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality. 2. The Respondent is to refrain from publishing the material described in Order 1 on any website, whether or not controlled by him. 3. Within fourteen (14) days of the date of this decision, the Respondent is to post the following apology, attributed to him, on every website controlled by him: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 28 November 2012. On various dates between 26 February 2010 and 24 July 2011, I published statements on various websites concerning homosexuality and homosexual people. On 28 November 2012, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest. I apologise for publishing these statements. I acknowledge that, although I have no issue with homosexual people or homosexuality, the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public. 4. The Respondent is to pay to the Applicant the sum of $3,000 as compensation for the harm caused to him by the publication, amounting to homosexual vilification, of the statements reproduced as nos. 2, 4, 6, 7, 8, 10 (first three sentences only) and 14 in paragraph [28] of this decision. 5. In addition to the amount stipulated in Order 4, the Respondent is to pay to the Applicant the sum of $3,500 as compensation for the harm caused to him by the publication, amounting to victimisation, of the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision. 6. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders. (personal details of the applicant omitted) The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 28 November 2012 and entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful. I offer my apologies for that behaviour. 7. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him the statements reproduced as nos. 7 and 8 in paragraph [72] of this decision.
It follows from the extract of this Decision that the respondent has a long history of publishing unlawful material. Significantly, also, he could not claim that he was a stranger to the relevant legislative framework or the concept of tendering an apology. However, more significantly is the reference in this decision to the fact that the respondent had previously breached an order dating back to 2005 requiring him to refrain from publishing such unlawful material. As will be seen, the decisions to which the respondent referred me contain several examples of breaches of orders of this Tribunal and its predecessor by the respondent.

Burns v Sunol (No 2) [2012] NSWADT 247 (28 November 2012)

The following extracts from the Decision of the Administrative Decisions Tribunal assist in gaining some understanding of the proceedings with which it was dealing; The publications for which Mr Sunol was responsible The text of the five remaining publications on Mr Sunol's website that, according to Mr Burns, vilified homosexuals unlawfully was set out in his complaints to the Board and in printouts from the internet that he attached to these complaints. We will now reproduce them in chronological order, together with the relevant file number, some additional material indicating the context of their publication and the dates on which they were published or on which Mr Burns gained access to them. Misspellings and typographical errors are not corrected:- 1. [121050: Under the heading 'Homosexuality is a choice, it is NOT GENETIC' - this passage includes the first of the two linking statements discussed above] 'I will not ramble on this very much at all, but homosexuality is a choice, a human choice and it is sin against God. Condemns this as with this choice it brings evilness upon the Human race and destruction. Homosexuality is a Behavioural disorder brought on by the social conditioning of mankind It is sin, nothing else and nothing more but plain straight out disobedience to God our Maker and Savior When you sin in such a way you leaver yourself open for Demons to oppress you and it mixes in with witchcraft. These are the reasons we MUST NOT ACCEPT THIS SINFUL BEHAVIOUR AND GAY MARRIAGE IS WICKEDNESS, I do not believe in or will accept homosexual rights as they have no rights for their sinful choice in society. This is all I will state on this but homosexuals need deliverance from their sinful behaviour and the evil spirits oppressing them and repentance to the Lord. Repentance to the Lord and deliverance from this sinful and wicked behaviour is the ONLY WAY FOR SALVATION IF YOU ARE A PRACTISING HOMOSEXUAL. when one person has sex with the same sex they deliver evil spirits between one another, In a marriage to the opposite sex which is not blood related the Holy Spirit then takes over and goes between the two.' (28 January 2012) 2. [121058: Under the heading 'China's gays celebrate love on Valentine's day] 'this is not the part of Chinese culture, Original Chinese culture is very Nuclear family orientated and anti Gay - I blame this as part of that dirty filthy poof Henry Collier who has now since died. It is wicked in the eyes of God.' (15 February 2012) 3. [121070: On the day before the Mardi Gras parade, with the second sentence in large print] 'that dirty filthy faggots March is in Sydney tonight, I tell you keep me out of this. this Mardi Gras is a disgrace to Australia.' (3 March 2012) 4. [121070: Also on the day before the Mardi Gras parade, with the second sentence in large print and providing a link to the website of the Mardi Gras] 'Never put me in this child molesters and pedophiles event, Sydney gay mardi Gras. or all hell will break out. as this is just a child molesters and paedophiles Happy parade' (3 March 2012) 5. [121070: With a link from the word 'Mortein' to the website of Mortein, a brand of insecticide] 'Gary B and his poofy followers are Lui the fly and I will be the Mortein that cleans the world of this disease.' (8 March 2012)
In dealing with their conclusions concerning homosexual vilification the Members of the Tribunal said, in part; In our opinion, publications 2 to 5 inclusive in the foregoing list satisfy the criteria to be considered in concluding that a 'public act' falls within section 49ZT(1) of the Act. Each of these four publications contains one or more phrases that, read in context, has the 'capacity to incite', or the 'effect of inciting', feelings of 'hatred' and/or 'serious contempt' for the persons to whom the phrases refer amongst 'ordinary members' of the 'class to which the publication is directed'. The phrases in question do not merely convey these negative feelings, but urge readers of them to experience such feelings. The negative reaction that they incite is not merely dislike but hatred and/or serious contempt. Examples of these phrases are 'dirty filthy poof' in no. 2, 'dirty filthy faggots' in no. 3, 'child molesters and paedophiles' in no. 4 and 'disease' warranting eradication (such as the product Mortein is claimed to achieve with flies and other pests) in no. 5. The 'target' of the phrase or phrases that we have held to contravene section 49ZT is expressly identified as a homosexual person (e.g. Mr Collier) or a homosexual group, such as participants in the Mardi Gras. Furthermore, the 'ground' on which each publication incited hatred and/or serious contempt was the homosexuality of the person or group. The person's or group's homosexuality was 'a substantially contributing factor'. We reach the opposite conclusion with regard to publication no. 1, even though it applies epithets such as 'sinful' and evil' to homosexual people. Our reason is that its principal message is that, in the opinion of the writer (Mr Sunol) if not also of other adherents to the Christian faith, homosexuality infringes doctrines of Christianity. To proclaim on a website that, according to some versions of Christian doctrine, homosexuality is a sin and homosexuals are sinners does not, in our opinion, incite hatred and/or serious contempt for homosexual people amongst 'ordinary members' of the 'class' (i.e., internet users) to which the proclamation is 'directed'. It is the reactions of 'ordinary' members of this 'class' that must be considered: see Sunol v Collier (No 2) [2012] NSWCA 44 at [41] and [61], and the discussion in the main decision at [11 - 16]. In making this finding, we take into account the possibility that many of the internet users who consult Facebook pages or 'blogspots' such as that maintained by Mr Sunol might have similar religious views to his. For the same reasons as are outlined in the main decision at [60 - 62], we find that none of the four publications satisfying the criteria in subsection (1) of section 49ZT falls within the exception in subsection (2). It follows that the dissemination by Mr Sunol of each of nos. 2, 3, 4 and 5 in the above list of publications, but not no. 1, was an act of unlawful vilification on the ground of homosexuality under section 49ZT of the Act.
In dealing with the question of victimisation, the Tribunal said, in part; The publications about which Mr Burns complained We will now reproduce in chronological order the ten publications that were identified in Mr Burns' complaints to the Board (i.e. those in category (a)), together with the relevant file number, some additional material indicating the context of their publication and the dates on which they were published or on which Mr Burns gained access to them. Misspellings and typographical errors are not corrected:- 1. [121050: Under the heading 'I have a court case corning up next Monday 31October 2011 NSW supreme courtt appeal'] 'I want to rid Australia of the Anti vilification laws which are not needed at aIl. If we can not rid Australia of unneeded and abused laws then a real modification is needed to protect all Australians from the abuses who use the Anti-Vilification legislation unethically. They are abused by what I call as Internet thugs and legal abusers, as was done with me through deliberate abuse and misuse of the law in the Collier v Sunol case and now that Gary Burns is trying to do to me now. Gary is carrying on the abuse that Henry did successfully to me which I am going to overturn for the benefit of all Australians and i am using the court systems to do just that.' (26 October 2011) 2. [121050: A comparatively long passage (from which the following extracts are sufficient), appearing under the heading 'I will not apologise to a Gary Burns over false villification complaints he has put agaisnt me to the ADT'] 'Gary! I notice you have put one more false complaint against me to the Administrative Decisions tribunal to me... ... it is very wrong that you are getting professionals to back me for nicks (or free) and very epensive and hight level, a QC with a barrister in the ADT. I know it is wrong very wrong... I would rather go to prison than apologize to Gary and he will get nothing from me at all as I do not care if I am imprisoned of contempt of the law as I show no contempt of the law - this was and is only a political exerside by Gary... I am not willing to apologize to Gary under any circumstance and would rather go to prison that do that as inside prison I can openly let all know that I am being prosecuted by those who want to bring to the world a one world government filled with corruption... For Gary to get so high profile funding which he does not deserve there funding and I ask the question: Who am I for a well known serial litigant and trouble maker Gary Burns to attack me since he normally only attacks high profile people like John Laws, Jeff Kennett and the Nine network footy show over gay vilification issues? What do I have to make me so dangerous that this man has to get funding from senior legal people and why are they setting up such a high profile case. There is no other reason I can accept behind the fact. It is a political exercise to give this man a higher profile in amongst the homosexual lobby community and I have a huge potential to be very dangerous - these goons who are taking me on know this so i intend to keep going the way I am and not give in.' (17 December 2011) 3. [121050: under the heading: 'One topic I will not mention on this blog again, is that of the homosexual activist Gary Burns'] 'This man is unbelievable. He is taking me on for victimisation over answering some of his false complaints about me and eternal winging he does. He is only a bad winger over nothing and a serial litigant who tells lies (blows a mountain out of a mole Hole). I am going to pay him absolutely nothing and fight him through the courts and tribunals all the way (I will physically harm no one as this mongrel man is putting against me. I am not like that and never have been, instead I fight in the courts and use the legal system to answer my critics along with the web. I do not make abuse of the system as this man does either) I never that I would physically harm him and this is a blatant lie. He fears for nothing from me as I am not like that and never have been He deserves nothing from me at all except just a "kick in the ass" from the NSW courts system for blatant Skulduggery and the continual abuse of the courts system - He is a waste of time as he manipuIates the legal system through his skulduggery to get his own way and steal money from others who have alot of publicity "eg Burns vs Laws (2UE)" I can say no more due to legal reasons but when these cases are finished read my writings and you will see.' (31 December 2011) 4. [121050: Under the heading 'One message to all so desired trouble makers who want to take me to court on false accuastyions'] 'I have my house and most of my money tied up in family Trusts - There is no way anyone like that man taking me to the Tribunals again on false charges can touch my money or assets. I have protected myself from thief's like you (Gary) as i put my house and assets in a family trust and others names so that thief's Like you can not get to me So understand this buster. You are a farmer who trodes around the paddock all day overturning dry Cow paddies and washing in the Old wet paddy you find underneath This is all you are Gary" as people like you dig up shit (as with the Cow Pazddies and swim in the shit) and they told lies about me and against me.' (25 January 2012) 5. [121050: Under the heading 'I am being persecuted by a trouble maker called Gary Burns', with the first sentence in large print] 'This man is full of skull duggery and interprets peoples writings in the worst light he can use by using lies and attack those who do nothing to him. He is only out looking for notoriety to big note himself as one of the most wonderful homosexual activist in Australia In reality he is NOT he speaks lies and defames people (like myself) with his misguided and deliberate false interpretations of the activities and writings in public. similar to what he did in the (Laws vs Burns) famous case study for vilification I refuse to give in to this Gary Burns on the pain of going to Prison for contempt of the courts as he has set it all up and interpret what I write wrongly to suit his own agenda. So the case Gary Burns vs John Sunol is not a real case, is is a misuse of the Australian legal system to suit the whims of a trouble maker and those who abuse the civil courts systems all of the time are not real activist, they are only trouble makers who are serial litigants and should not be taken seriously. I refuse to accept guilt and class Gary Burns in the same light as that of Henry Collier when he took me to court. I do not vilify, I do not defame, I do not break the equal opportunity laws and most of all I do not hate gays. This is all a lie purported by this Gary Burns who is falsely accusing me of his own agemda. This man is an evil man, as now he had even got another trouble maker (Helen Gow) from years ago who put false accusations against me at the NSW Tafe when I was going drug and alcohol studies back in 1994 that I was masturbating myself in class. This was proven wrong at this time as I challenge this lie those 18 years ago. Gary is like a farmer who digs up dry Cow Paddies and fussels through the shit that comes out from underneath. so Gary: I will not give in. I will not change and I claim that you are the liar, and you are wrong and I refuse to give in or stop. You will stop this persecution of myself by your own skull duggery and I will not change one little iota.' (29 January 2012) 6. [121058: Under the heading 'Churches today are under serious persecution'] 'It wilI be that people like myseIf speak up against the evils of the New World order and other such situations wilI be put in front of the courts like Henry Collier did to me and Gary Burns is attempting to steaI money through the abuse of the Civil tribunals and courts then to have me made to shut up by the court orders.' (6 February 2012) 7. [121058: Under the heading 'I believe we are living in the last days before Christ returns'] 'These demonic forces knows that I am right and want to stop me - so they bring a trouble maker named Gary to attack me through the courts to try and stop me. Then I tell this Gary I will not stop no matter how much you try and I have God on my side, you must leave your homosexuality and find Christ or your life is doomed When Christ does return which is going to happen. This has been fortold in the past and preached in the churches for many years. Ok then I wiIl speak no moe on this Gary and if he continues putting in complainsts against me I will let it take its time and go trhough the courts system. I do not care about this. The only thing I ask is PLEASE DO NOT LET THIS GET IN THE MEDIA AND MAKE ME A PUBLIC CASE LIKE THAT INFORTUNATE THING THAT HAPPENED TO DAVID HICKS AS IF BECAME NATIONWIDE NEWS PUBLIC FODDER IT WOULD SERIOUSLY EFFECT MY JOB (DRIVING TAXI) AS EVERYONE WOULD KNOW ME IN THE WRONG LIGHT and moe than likely I could not do it fully without trouble. So Gary, You are a trouble maker and an evil homosexual man who is bell bent on abusing the Austrtailan legal sstems corruptly with no regard for humanity. You do now know me I will not hurt you physicaly as you put this, but I need a forum to get out my knowledge and I use this as a forum with the You Tubes So shut your mouth buster and go back to bed and stop telling lies. You need Christ as we all do and the only saviour is Jesus Christ and no one else from any otehr relgiion as they ae all demonic.' (11 February 2012) 8. [121058: Within a comparatively long passage under the heading 'I am one of ther most highly qualified under employed and over qualified Taxi drivers in Australia'] 'No one would take notice due to my older age and the perceptions people Iike Henry Collier put on me by taking me to court unethically and now the Gary Burns who has taken over. These people are liars and I class them law abusers who manipulate the laws to please themselves. So do NOT TAKE NOTICE TO GARY BURNS AS HE DOES NOT KNOW ME AT ALL and i will fight back.' (14 February 2012) 9. [121082: Under the heading 'I had my Taxi authority suspeded for so called inappropriate behaviour'] 'I had my taxi authority suspended for what was deemed inappropriate behaviour in speaking about Muslims and/or homosexuals. I beg to differ over this and will appeal this decision vigorously as I need an income and this is where I get my income from, the taxi driving. I REFUSE TO GIVE IN and that Gay who is fa sly attacking me but let be known I will sit on the computer all day and every day now whilst I am not working writing what I want and he (Gary) can go and get stuffed if he wants me to stop as that is just not going to happen. I do NOT VILIFY HOMOSEXUALS,NEVER HAVE AND HE (GARY) IS JUST A PLAIN STRAIGHT OUT TROUBLE MAKER AND LIAR... I do not blame the officer I made a mistake - which I will accept, but with Gary making false complaints I blame Gay and his co-horts and also Rod Swift for making false complaints about me and setting me up as they hate my guts They know I am right about the homosexuals and especially the Mardi Gras. I will not stop now or ever and never give in I also refuse to apologise to that Gary under any circumstances, as far as I am concerned he can go and get stuffed: bring it on mate and we will fight before the courts and media as I will spend the time now online attacking the Mardi Gras all of the time no matter what He wants or does YOURS DOING THIS IN DEFIANCE TO HIS ACTIONS - that is Gary.' (11 April 2012) 10. [121082: Under the heading 'I just wilI not accept where I went wrong over writings on the homosexual community'] 'I just will not accept that I am wrong. I have been set up for a political purpose and this is orchestrated by Rod Swift, the Henry Collier in the past and now Gay Burns. I will accept nothing else than this Gay Burns is totally and fully wrong and I just will not apologize, stop or give in now or ever And I tell all this GAY BURNS IS A POLITICAL ANIMAL WHO IS TAKING ME TO COURT ON POLITICAL REASONING IT IS NOT MY FAULT AND I WILL NEVER ACCEPT THIS OR BE WILLING TO APOLOGIZE TO THE MAN And If this Gary wins any money against me in the cases, He deserves not a brass Ra zoo and is only a thief who steals money off people by taking them to court on false pretenses and continual abuse of the court system on vilification and/or discrimination issues. I refuse to accept that I am wrong.' (29 April 2012)
In the above extract, the respondent asserts in forceful terms that he will not engage in any form of apology to the applicant, nor will he pay any monies to the applicant in defiance of orders of the Tribunal. This is prima facie indicative of a contumelious disregard for the authority of that Tribunal.
The Tribunal framed its conclusions dealing with the question of victimisation in a considered fashion; In our judgment, Mr Burns' claims of victimisation should be upheld in relation to six out of the ten publications of text that we have reproduced: namely, nos. 2 - 5 inclusive, 7 and 10. In each of these publications, Mr Sunol used a number of abusive and highly derogatory terms with reference to Mr Burns. In no. 2, he called Mr Burns a 'serial litigant', accused him of wanting to 'bring to the world a one world government filed with corruption' and asserted that he had 'a huge potential to be very dangerous'. In no. 3, he used the phrase 'serial litigant who tells lies' and accused Mr Burns of 'skulduggery' and 'continual abuse of the court system'. In no. 4, he called Mr Burns a 'thief', accused him of 'making false charges' and likened him to a 'farmer' who digs up cow manure and swims in it. In No. 5, he repeated (in substance) almost all of the epithets used in nos. 3 and 4, adding the phrase 'evil man'. In no. 7, a lengthy attack on Mr Burns included the following sentence: 'So Gary, you are a trouble maker and an evil homosexual man who is bell bent on abusing the Australian legal system corruptly with no regard for humanity.' Finally in no. 10, having set out a number of accusations (some in capital letters) against Mr Burns, he described Mr Burns as 'only a thief who steals money off people by taking them to court on false pretences and continual abuse of the court system on vilification and/or discrimination issues'. In varying degrees, these six publications, disseminated via the internet, were such, in our opinion, as to cause Mr Burns to feel offended, upset, alienated, angry and anxious (all of these being words used by Mr Burns in his written evidence to describe his reactions). In conformity with the Tribunal's determination in Carter v Brown [2010] NSWADT 109 at [154], we are satisfied that they subjected Mr Burns to a 'disadvantage' which was 'not trivial' and which therefore amounted to a 'detriment' under section 50 of the Act. We are also satisfied that in each of these publications Mr Sunol referred to the Tribunal proceedings instituted against him by Mr Burns in such a way as to demonstrate that one or more of these proceedings constituted 'at least one of the "real", "genuine" or "true" reasons' (to use the test laid down in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]) for his abusive and derogatory language regarding Mr Burns. If there were any doubt on this matter, substantiation can be found amongst the email messages sent to Mr Burns by Mr Sunol during March and April 2012. More than once, Mr Sunol expressed hostility to Mr Burns in highly abusive language, on account of being compelled to defend Tribunal proceedings.
The Tribunal, in dealing with consequential relief and in particular, injunctive relief said; In conformity with conclusions reached on very similar facts in the main decision at [103 - 105], we make orders in the nature of an injunction against Mr Sunol, in the following terms:- 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him: (a) the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of the decision; and (b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality. 2. The Respondent is to refrain from publishing the material described in Order 1 on any website, whether or not controlled by him. .
In addition, the Tribunal ordered the respondent to post an apology within 14 days in terms specified by it on any website controlled by the respondent, to pay the respondent a total of $4500 by way of compensation for harm, and to forward to the respondent a signed letter of apology in terms set out in its Decision. Furthermore, the respondent was required within a period of 14 days to remove the relevant material from all websites controlled by him.

Burns v Sunol [2014] NSWCATAD 2; (22 January 2014)

This is the first decision of this Tribunal and dealt with a number of publications of the respondent The period of the complaint is 9 November 2012 to 2 January 2013. Mr Burns complains that several publications on a blog - www.johnsunol.blogspot.com.au, and letters and emails Mr Sunol wrote, breach s 49ZT.
It is not necessary for present purposes to set out the content of those publications.
The Tribunal found a number of complaints of homosexual vilification proven and dismissed others. It ordered that the respondent remove specified material from every website controlled by him "and/or material to the same or similar effect."
I observe that the respondent has subsequently breached the order to refrain from publishing material to the same or similar effect on many occasions, as will be seen from a consideration of the later Decisions, which I shall shortly discuss.
The Tribunal also ordered the respondent to post an apology on his websites and specified the form thereof, which was to be attended to within 14 days of the date of that decision. If he defaulted in complying with any of those orders the respondent was ordered to pay to the applicant the sum of $2500 for each breach. In addition, the respondent was ordered to pay the applicant $3000 for victimisation, such payment to be made within 28 days.
Significantly, for present purposes, the Tribunal said; In the Tribunal's 2012 decision it found some aspects of Mr Burns' complaints of homosexual vilification and victimisation substantiated and ordered Mr Sunol to: (1) remove certain material from every website controlled by him; (2) refrain from publishing that material again; (3) post a specified apology on every website controlled by him with 14 days; (4) pay to Mr Burns $3,000 as compensation for the harm caused to him by the publications which were found to constitute homosexual vilification; (5) pay to Mr Burns $3,500 as compensation for the harm caused to him by the publications which constitute victimisation; and (6) write a letter of apology in specified terms to Mr Burns. The Tribunal determined several other complaints of homosexual vilification and victimisation involving the same parties in Burns v Sunol (No 2) [2012] NSWADT 247. The orders in that matter were in similar terms to those summarised above except that Mr Sunol was ordered to pay Mr Burns $2,000 as compensation for the harm caused to him by the publications which constituted homosexual vilification and $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation. In total, Mr Sunol was ordered to pay Mr Burns $11,000. According to Mr Burns, Mr Sunol has not complied with any of these orders.

Burns v Sunol [2014] NSWCATAD 61; (14 May 2014)

The Tribunal considered the following publications; (1) First publication - 12 November 2012 child abuse royal commission needs to go a lot further than just the Catholic church Yes If child abuse or sexual molestation is found in parts of the Roman Catholic church, they must be dealt with according to law. But I am afraid that this child abuse goes a lot further than just ther church The church is only one institution I has occurred to on some occasions and this is not the only place Let alone child abuse and drug dealing is rampart in other areas of lifestyle and events. Namely one organization much bigger and larger than the catholic church is that of Gay nad Lesbian Public events, such as the, Sydney Gay and Lesbian Mrdi Gras and the yearly sleazeball in October every year and all associated events. This is also run by brought about by drug dealers and pornography dealers into child sex port as well as other such thngs. Other areas such as the ex inustray legal and uillegal brothels and sex shops should also be inviestigatwed. These should also be investigated completely and when the purpentrators are found they should be brought to justice with there criminal acitivites closed down for good At least that repugnant sleaze ball. And all associated sex shops and brothels should be investigated as well. I will not shift from this as this is fact. (2) Second publication - 3 March 2013 blog post: All parts of society and as all parades have a message to point out. I could easily see the message in this parade which I am disgusted at, all segments of society to accept diversity of ways and gay and lesbian sexuality. This is evil and a major security risk to Sydney.. . . THAT IS DANGEROUS, VERY VERY DANGEROUS AS A BOMBING COULD EASILY BE CARRIED OUT ON THIS PARADE WHICH WOULD HAPPEN WITHOUT NOTICE. Then you have near naked men and woman march down the parade, showing their bums at all, acting sexual behaviours, little children involved in this march and right at the very end two men masturbating each others on a float with gay marriage, and women acting sexjual acts with each other as well. This was the last thing I could task as the end of the parade started to hype up into a sex orgy in the main streets of Sydney so I had to get out and when it finished I just walked away from this and went to central station to catch a train bus back to Broadmedow This is evil as right at the end you practicably had ther parade participants get involved with sex with each other over a gay marriage float and for the Military and Police with other government departments and heads (such as clover Moore) go get involved with such, it is totally unacceptable/ and worst of all Our authorities are now part of this degenerating and unacceptable behaviours as depicted in this march, Where is Western society leading, God will not tolerate this wickedness for ever. (According to Mr Burns, by using different fonts, the applicant invites the reader to click on the links. In this case the link opens up to a page headed "Destination NSW" promoting the Sydney Mardi Gras.) (3) Third publication - 10 March 2013 blog post,: To all whom think that I should be punished for vilification I do not do Also i am making it my goal to rid Sydney of this Mardi Grad which is also a major danger of terrorist attack upon this city. (4) Fourth publication - 14 March 2013 blog post,: Jesus is NOT gay The only thing is to stop parade in case of potential terrorism in 2014 because of the soft target and the controversial nature of the parade. If a terrorist done a bombing on this or a suicide bombing we could not possibly stop them, nor could the police and they would be blown up in it I state better to stop this parade to keep the terrorist away. If I was able to creep in unnoticed so could anyone and so could a potential suicide bomber. this is a bad ting and must be stopped this year, and put into the annuls of Sydney's history. (5) Fifth publication - 1 April 2013 blog post I Declare Jihad I declare Jihad against the all LGBT groups and the atheist as they are deluded deceiving the people. i also agree with Fred Phelps over the GLBT groups which in themselves are very evil and wicked groups that God will destroy eventualy (6) Sixth publication - 14 April 2013 blog post: I do not hate gays and or lesbians as he accuses, I do not like the Sydnety Gay and Lesbian Mardi Gras as it is totally inappropriate for the streets of Sydney. Open target for terrorist attack Besides that it draws big crowds in an event in Australia which has got troops overseas fighting Islamic extremists and extremists else where and this leaves a huge danger to Sydney of an easy terrorist attack and terrorist suicide bombing. This event is extremely controversial, extremely large crowds of people gather in very difficult to protect if the authorities can at all from a terrorist attack, and would give very wide publicity for the terrorist group who done the bombing It should be stopped immediately without delay before something very nasty happens or it will come upon us by surprise, just like the London Bombings, (7 July 2005) Madrid train bombings (7th March 2004) and Most all which is now infamous 9/11 September 11 2001 in New York (7) Seventh publication - 7 May 2013 blog post, with hyperlink to a YouTube clip of Westboro Group Church, with the following statements: The best of Fred Phelps - I do not agree full but he is better that the LGBD and rainbow groups - You Tube Fred Phelps You Tubes I do not think that this is appropriate in all circumstances but Fred Phelps is a far better man than the leaders of the GLBT or rainbow groups which are very evil and they are a extremely nasty piece of garbage Watch and Enjoy understanding I back this rather than the GLBT groups or the rainbow groups
In discussing the question of publication, the Tribunal said, in part; What is the relevant act and is that act a "public act" of Mr Sunol's? Mr Sunol agrees that he published the material set out above on an internet site controlled by him that is accessible to any member of the public without a password. Such publications are a form of 'communication to the public' and constitute 'a public act': Jones v Toben [2002] FCA 1150 per Branson J at [73] - [75]. Publication 7 contains a hyperlink to a YouTube video about the teachings of the Westboro Baptist Church. The video shows a person making extremely derogatory remarks about homosexual people and engaging in anti-homosexual campaigning. Providing the hyperlink to this video is a form of communication to the public. By posting the hyperlink on his website Mr Sunol was publishing the content of the video to internet users at large. In summary, all seven publications are public acts of Mr Sunol.
The Tribunal found that; 1. The following publications constitute homosexual vilification: Publication 1 (bold font), Publication 5, Publication 7 (excluding the publication of the YouTube video). 2. The following complaints of victimisation are substantiated: Publication 1 and Publications 3-11.
The Tribunal ordered, inter alia that 3. Within 14 days of the date of this decision, Mr Sunol is to remove the unlawful material identified in Orders 1 and 2 from every website controlled by him including Facebook and all material to the same or similar effect. 4. Mr Sunol is to refrain from publishing the material described in Orders 1 and 2 or material to the same or similar effect, on any website, controlled by him.
Furthermore, the respondent was ordered to post an apology in a specified form on every website controlled by him, and in default of compliance with any of the orders made was to pay the applicant the sum of $2500 for each breach. In addition, the respondent was ordered to pay to the applicant $1000 for homosexual vilification and $2000 for victimisation. Finally, the respondent was required to forward a written apology to the applicant in a specified form. He was required to pay the applicant the sum of $2500 for any breach of these latter orders.

Burns v Sunol [2014] NSWCATAD 62; (14 May 2014)

The Tribunal described the publication which is the subject of these complaint proceedings in the following terms; Sunday, 11 August 2013 One of these videos is going to be used against me in a court of law on October 4, 2013. Watch this and know that I do not think this can be done today but it was back in History but this is what happened in History. This is taken from Fred Phelps site God hates fags on the Westerbury Baptist church and this is what Gary Burns is going to use against me on October 4, 2013. I do not think this can or should be done today as we are living in the times of grace and not the law. But this is going to be put forwards that I want to do in a court hearing on October 4, 2013 and I challenge Gary over this 100%. (Hyper link to you Tube clip entitled "Anti-Christ in Chief" with a graphic of a man sodomising another man on the cover of the video) Thank God for Russia's fag law (video News) Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it. I agree with Fred over this, let's thank God that the Russian people have got this right more I agree with Fred over this, let's pray for salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and rainbow people who are in very evil groups driving by the devil to create troubles. (Link to YouTube clip entitled DEATH PENALTY 4 FAGS) Death Penalty for Fags (sign movie) All nations should follow God in requiring the death penalty for sodomy. I do not agree that this is for today, it was done in Biblical history but today we are living in the times of grace that through Jesus Christs death we are taken from the law and put under Grace, this might have been relevant in Biblical times but not to go on a murderous rampage as it can easily be taken out of context. It was used against me that I want to go on this in a court case coming up October 4, 2013 but that is not truth. This man taking me is a trouble maker, liar and abuse of the law all of the time, habitually tells lies to courts to obtain money. This is the video that I am being accused of supporting to go on a murderous rampage and kill gays, those taking me to court and use this video to accuse me of serious vilification. This is far from the truth: whilst I agree with this in history I do not agree that to kill gays today is relevant at all. I would be no better than a raging lunatic if I did that and it would be right for the authorities to lock me up for murder or attempted murder This is what is coming up on October 4th and I am willing to speak to any media that wished to speak to me over this. I am willing to speak to any media that wants to contact me over this case coming up on October 4 as I am going to fight this fully. The man who is taking is a continual and habitual court abuser. (Hyperlink to you Tube clip entitled "God H8S FAG MARRIAGE") God's love (audio) Parody of "Same Love." Too late to pray, now that you've let fags marry. Have you read "Remember Lot's Wife" lately? - this I agree with as God not only hates gay marriage, gay marriage is an abomination to him and will end up in his wrath coming upon all who marry such a way. You are deceived and deluded by Satan when you believe anything else. (Hyperlink to you Tube clip entitled Vine of Sodom and grapes of gall.) I agree but No comment. Deuteronomy 32:32 for their vine is of the vine of Sodom, and os the fields of Gomorrah: their grapes are grapes of gall, their clusters are bitter. morehink that this is for today but in Biblical history this was done John Sunol
In referring to the case being prosecuted by the applicant, the Tribunal said; Mr Burns is not relying on the content of the video clips which are linked to Mr Sunol's blog as constituting homosexual vilification. He did not tender those videos in evidence. He is relying only on the depiction of the titles of the videos, the graphic of a man sodomising another man on the cover of the "Antichrist in Chief" video and Mr Sunol's commentary. In particular, Mr Burns highlights the following parts of the publication: (1) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol: "Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it." (2) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. " (3) the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and (4) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..." We will refer to these publications as Publications 1-4.
The Tribunal described the allegations of victimisation brought by the applicant in the following terms; Complaints of victimisation The allegedly victimising conduct is publications of text on Mr Sunol's blog on 19 August 2013 and five letters Mr Sunol wrote to Mr Burns during the period 29 July to 16 September 2013. There is no dispute that Mr Sunol wrote these comments. Mr Burns' case is that Mr Sunol subjected him to a detriment by making these publications and that the reason he did so was because he lodged complaints against him under the Anti-Discrimination Act. The relevant parts of the publications are set out below, in chronological order. We have re-produced the publications verbatim and put the allegedly offending matters in bold font. Gary Burns is a theif http://en.wikipedia.or/wik/Gary_Burns_(activist) This man has taken me to court on number of occasions set up on false accusations and lies, this man is full of fraud and he tells big lies about me, as he done to the ADT in these cases. This man also is very political and this is another piece that he writes on. To me Tony Abbott has no need to listen to this clown as he does not need to apologise to any gay whatsoever, he like me has done nothing wrong Gary is full of skulduggery and political lobbying so all need to have an all Gary altogether this is only a political attack upon Tony Abbott as like me he is degusted with gay marriage I saw an article in the Newcastle Herald today has made me feel sick of two men being married in New Zealand he did not even pay the $4000 he owed to my solicitor when he lost an AVO case in wave at 10 on 5 August 2011. He told straight out lies that I am going to harm him and I am a very dangerous man. Gary told straightout lies and made up a load of bull shipped stories that I am going to hurt him, he was very afraid of me and put me to the expense of bringing a solicitor to defend myself. He knew this was a load of crap and when he lost this AVO and did not get it, he was told to pay my solicitor $4000 but he did not even do that, he disobeyed court orders openly knowingly and contemptuously - then when he won $11,000 off me by fraud in the ADT in 2012 he demanded the money straight away when I did not have it. He was even going to send a debt collectors around. I tell this "ass hole" and Internet plug and a liar, go to hell as I am not going to pay you buster even if you win these last cases I will fight you and your kind write very end as you are the troublemaker, you are the liar and you are the abuse of courts. You are very wrong and a very evil man. I am a fighter and do not give into thugs like yourself I have never given into thugs like you or curtailed to show restraint in any sense. Also you do not preter me buster, I do not get frightened, I just fight you back knowing that you are a very evil man who tells lies to get what you want and I am right and the victim in this case as with all my cases against you Burns. You tell lies to the court, when caught out you will not pay but you expect me to pay you straight away when you're lies win in a civil tribunal will then go to hell buster as this is not going to happen I am not going to pay you one red cent, I will fight you to the very end. Take me to the Supreme Court, have to be prisoned, I do not care but when I am right and thugs like you is attacking me I do not give in or sway one little iota you are just as bad as those criminals that run that Mardi Gras held in March each year in Sydney I will never pay you one red cent and you cannot and will not get this from me. I do not vilified, I do not harass anyone and I do not victimise like you accuse me of. That is all "bullshit" and "lies" made up out of your own mind to get money from me by the abuse of the courts system and fraudulent activity by yourself. You are a very evil man as I have never touched you and never will. All I do is to defend myself and others from an Internet thug and court abuser like yourself and the others working with you from the GL S BT and/or rainbow groups. A heal of bull crap, I have never hurt anyone or would: this man is a plain straight out liar and a con artist he wants to steal off you by telling lies and city you up on false accusations. I have more cases coming up on 4 October in the ADT in Sydney so stay tuned and watch but Gary. Let me tell you this buster I am not going to pay you even if you win as you, you mongrel with your skulduggery has told lies and stolen off me. I am not going to apologise to you or the gay community as I hurt know one will never hurt them or have I ever vilified. I tell the truth and you tell lies which are made up by yourself in complete vindication. Also when ever I answer you, you mongrel you state more lies that I am harassing you and victimising you. Just to let you know this buster, I have no intention of paying you if you win the case on July 5 or this one on October 4, 2013 as you deserve nothing but a good kick in the bum by those authorities and the police for wasting their times with false cases and abuse of the legal system (which you habitually do). In reality you are not getting victimised by me, but I am being victimised by you as you tell straight plane out lies in knowing what you are doing to receive money by fraud. I will never change from this that I put on this blog, never give in and I will fight you all the way to death just know this. The war between us is on, NOT OFF, and I will never bow down to a thief and court abuser like yourself. So enjoy yourself fidgeting as it is going to stay on and not off as I am not going to give in in any time coming and will never recognise where I am wrong, also I will never pay you one red cent and if a debt collector pays you - that is his fault and I will refuse to pay him I will state no more but this is my answer to a thug, court abuser, liar and thief like yourself. You are very evil mate just know that. I promise Gary and all others, I stand for truce and justice. Not gay marriage which is nothing but evilness and makes me sick in the stomach to see two men or two women get married in God this is totally blasphemous towards God, makes God very angry and will bring his judgement down on all who do such evil. John Christopher Sunol.
The Tribunal said; The letters which Mr Sunol wrote to Mr Burns are dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013. They make similar allegations against Mr Burns and refer to him in the same derogatory terms. The 29 July letter accuses Mr Burns of harassing him and telling lies about him to the 'courts'. In the 26 August 2013 letter Mr Sunol accuses Mr Burns of "continual abuse of the law and perverting the cause (sic) of justice." He also said he had given "false statement" to the ADT. In the letter of 2 September 2013 Mr Sunol calls Mr Burns a "liar" and a "trouble maker". In the letter of 4 September 2013, Mr Sunol writes that: You have no right to take me to court on such as you are only wasting the time of the ADT and the Anti-Discrimination Board on hated and bias towards me - that is all it is. As I am not going to listen to a person who abused the courts like yourself, tells lies and tries to steal money off me as you do. In the letter of 16 September Mr Sunol refers to Mr Burns as a "bastard who misuses the law all of the time to get money and to get what you want" and an "internet thug".
The Tribunal made the following Orders; 1. The following publications constitute homosexual vilification: (a) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol: "Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it." (b) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. " (c) the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and (d) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..." (5) The following complaints of victimisation are substantiated: The passages in bold set out at 36 above. The passages in the letters dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013 reproduced 37. (6) Within 14 days of the date of this decision, Mr Sunol is to remove the unlawful material identified in Orders 1 and 2 from every website controlled by him and all material to the same or similar effect. (7) Mr Sunol is to refrain from publishing the material described in Orders 1 and 2 or material to the same or similar effect, on any website, controlled by him. (8) Within 14 days of the date of this decision, Mr Sunol is to post the following apology on every website controlled by him: This apology is made pursuant to orders of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014. On 11 August 2013, I published statements on a website controlled by me: www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people. On 14 May 2014 NCAT held that my statements amounted to unlawful homosexual vilification. NCAT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality. I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public. (9) In default of compliance with Orders 3, 4 or 5 within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders. (10) Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,000 for the homosexual vilification. (11) Within 28 days Mr Sunol is to pay Mr Burns $5,000 for the victimisation. (12) Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns (and then followed a specified form of apology which I have omitted). (13) In default of compliance with Orders 7, 8 or 9 within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders. (14) This matter is to be re-listed on 9 July 2014 at 10.00 am to determine whether Mr Sunol has complied with these Orders.

Burns v Sunol [2014] NSWCATAD 63; (14 May 2014)

In its Decision, the Tribunal referred to orders made in Burns v Sunol [2014] NSWCATAD 2, and said; 1 On 22 January 2014 the Tribunal made orders that Mr Sunol apologise to Mr Burns and remove homosexually vilifying material and material which victimised Mr Burns from websites controlled by him. The Tribunal also ordered Mr Sunol to refrain from publishing further material "to the same or similar effect": Anti-Discrimination Act 1977, s 108(2)(b). In default of compliance with those orders within 14 days, the Tribunal ordered that Mr Sunol pay Mr Burns $2,500 for each breach: Anti-Discrimination Act, s 108(9). The matter was listed on 21 February 2014 to determine whether Mr Sunol had complied with the Tribunal's conduct orders. 2 Mr Sunol complied with the orders to apologise and to remove the material from websites controlled by him that was the subject of the substantiated complaints of homosexual vilification and victimisation. He has not complied with the orders to refrain from publishing further material "to the same or similar effect" which either victimises Mr Burns or amounts to homosexual vilification. We order that Mr Sunol pay damages totalling $5,000 for these two breaches. Orders 1. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching order 6 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2. 2. Mr Sunol is to pay Mr Burns the sum of $2,500 within 28 days of the date of this decision for breaching Order 11 of the orders the Tribunal made in Burns v Sunol [2014] NSWCATAD 2.
This provides yet another example of a breach by the respondent of orders of this Tribunal.

Burns v Sunol [2015] NSWCATAD 131 (25 June 2015)

The Tribunal upheld all of Complaints 1 and 2 and part of Complaint 3 of the following complaints; "1. The complaint of homosexual vilification in the publishing of comments on the respondent's blog on 23 March 2014 and endorsing comments by Luke McKee (C2014/0238). ... 2. The complaint of homosexual vilification for comments published on the respondent's blog on 21 March titled 'Rape little boys taken off ABC shows - this is same sex marriage' and following comments (C2014/0371) ... 3. The complaint of homosexual vilification in relation to comments made by the respondent on his blog published on 21 March 2014 headed 'Some very interesting videos on corruption from Luke McKee' (C2014/01372) ..."
At [89] and following the Tribunal said; The orders which the Tribunal might make where a complaint has been substantiated are contained in s 108 of the Anti-Discrimination Act. This section does not authorise an order requiring the Respondent to enter into an agreement concerning the compliance with orders of the Tribunal. Section 108(2)(b) provides that if the Tribunal finds a complaint substantiated in whole or in part it may: "(b) make any order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations. ..." Mr Sunol informed the Tribunal that the offending material had been removed from his website. Mr Burns did not contradict this. Mr Burns submitted that Mr Sunol removes offending statements and then republishes them. There was no evidence of this in the material before us. Accordingly, any injunctive relief would be in respect of future publication. In Sunol v Collier (EOD) [2006] NSWADTAP 51 in substitution for an order that had been made by the Tribunal at first instance the Appeal Panel made an order that Mr Sunol was to refrain from publishing certain materials "Including statements to the same or similar effect, on any website whether or not controlled by him". In so doing, the Appeal Panel said at [49] 'We are satisfied that the Tribunal has power to make an order enjoining Mr Sunol from repeating any unlawful conduct. That includes republishing the statements that the Tribunal has found to be unlawful. Courts and Tribunals have also made orders pursuant to comparable legislation enjoining a respondent from publishing or republishing material 'to the same or similar effect' or which conveys certain imputations: Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 and Jones v Toben [2002] FCA 1150. There is evidence that Mr Sunol has continued to publish material that is similar to the material that the Tribunal found to be unlawful. Although it may be difficult for Mr Sunol to predict which statements will be in breach of the AD Act, he has been given a great deal of guidance on this issue by the Tribunal. We agree with Mr Collier that the order should cover the publication of material to the same or similar effect as the material that the Tribunal has found to be unlawful." On the question of whether Mr Sunol should be prevented from publishing such statements on other websites, the Appeal Panel in Sunol v Collier (EOD) [2006] said at [50]: "We also agree that Mr Sunol should be prevented from publishing such statements on any websites, whether or not they are controlled by him. If he is able to post statements on websites not controlled by him, then those public acts should be covered by the Tribunal's order. For those reasons, the following order should be substituted for Order 2: Mr Sunol is to refrain from publishing the material referred to in the previous order including statements to the same or similar effect, on any website whether or not controlled by him." In a similar situation in Burns v Sunol [2012] the Tribunal proposed an injunctive order. If an order were to be made that Mr Sunol restrain himself from further publications the conduct restrained would have to be limited to "conduct rendered unlawful by Act or the regulations"; see s 108(2)(b) of the Anti-Discrimination Act, Burns v Sunol [2012] at [95] and Sunol v Collier (EOD) [2006] at [49]. Having been satisfied that the publication of the material referred to in the complaints which we have identified was unlawful, we consider that an order restraining Mr Sunol from republishing the material which has been found to be unlawful including material to the same or similar effect on any website whether or not controlled by him is warranted.
The Tribunal made the following Orders; (1) In this order, "the material" means: (a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me. (b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on. (c) Older homosexuals call their underage love interests or targets 'chickens' or 'chicks'. The baby chicks featured in this video was likely an advertisement for the pedorists ring. (d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims. (e) Everybody with commonsense knows gay people have issues and are inclined to be pedophiles, but they call sane people 'homophobic' and don't give a damn if children are being hurt. (f) Gay marriage is child abuse. (2) The Respondent is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.
The extract from the above Decision confirms that the respondent is no stranger to the provisions of the legislation which govern his publications on his blog, and the consequences of breach by him of that legislation. The extract also confirms the apparent and continuing disregard by the respondent of his lawful obligations created by that legislation characterised by his persistent and continuing publication of the same and similar material.

Sunol v Burns [2015] NSWCATAP 207 (24 September 2015)

The basis of these proceedings may be understood from the following extract of the Decision of the Appeal Panel; The appellant appeals the decision of the New South Wales Civil and Administrative Tribunal ("the Tribunal"), which was delivered on 25 June 2015: see Burns v Sunol [2015] NSWCATAD 131. By that decision, a restraining order was made under s 108(2) of the Anti-Discrimination Act 1977 (NSW) ("the Act") ("the restraining order") which prohibits the appellant from publishing certain material. For the reasons which follow, the appeal is dismissed. The orders of the Tribunal identified the material ("the offending material") which the appellant published on a website as set out below, which material was found to have contravened the provisions of s 49ZT of the Act. The Tribunal identified and defined the offending material as follows: (a) Garry **** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me. (b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on. (c) Older homosexuals call their underage love interests or targets 'chickens' or 'chicks'. The baby chicks featured in this video was likely an advertisement for the pedorists ring. (d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims. (e) Everybody with common sense knows gay people have issues and are inclined to be pedophiles, but they call sane people 'homophobic' and don't give a damn if children are being hurt. (f) Gay marriage is child abuse. Such publications were made on 23 March 2014 on the appellant's internet blog. Further publication of material was made twice on 21 March 2014. In the present circumstances, the restraining order is based upon the premise that if there were a repetition of publication of the offending material, it would constitute a violation of the respondent's legal rights. If there is a strong probability that the apprehended breach could occur in the future, such an injunction will be issued to restrain the infringement of a party's legal rights: Attorney-General v Nottingham Corporation [1904] 1 Ch 673 at 677; Attorney-General v Long Eaton Urban Council [1915] 1 Ch 124 C.A. at p 127 per Lord Cozens-Hardy MR, who said: It is as old as the hills that if a man threatens that he intends to do something which is unlawful, and asserts a right to do it, the Court will grant an injunction to restrain him. It is wholly irrelevant to say whether he has done it or not. Here, the terms of s 108 of the Act amply support the orders made. The terms of any such restraining order must be clear and unambiguous. In this instance, Order 1 defines, with precision and clarity, the statements, words and nature of the words or statements which the appellant by Order 2, the appellant is restrained from publishing. The restraining order which has been made by the Tribunal is one which the Appeal Panel concludes is one which would be readily understood by the "ordinary reasonable reader". In Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 165, the Court of Appeal said (omitting references), in relation to the reading of an alleged defamatory publication: The ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs. Whilst the above quotation from Marsden was made with reference to the reader of published material, the Appeal Panel sees no reason not to apply the same observations, by analogy, to the reader of the restraining order. We are satisfied that the terms of the restraining order can be readily understood by a reasonable reader, including the appellant. We see no difficulty in the appellant having a clear understanding of the limits so proscribed by the restraining order. Order 2 has the effect of both operating in the present, and in the future. There is no time limit. The order would be ineffective if it were framed as to operate only retrospectively. The order operates prospectively for the very purpose of ensuring that the appellant be restrained from engaging in the same or similar conduct in the future. Section 108(2)(b) of the Act specifically authorises the making of an order to restrain future conduct. Whilst the appellant submits that the Tribunal has exceeded its jurisdiction by making orders which are "anticipatory, speculative and conflict with the ordinary operation of the Act", the Appeal Panel sees no basis for such submission in light of the specific and broad powers invested in the Tribunal by s 108 of the Act which specifically mandates the making of an order of the kind referred to in Order 2. Accordingly, the Appeal Panel rejects the submission that the Tribunal "has no power to make prospective, pre-emptive orders in anticipation of future events that have not yet come into actuality and upon which the Tribunal has no evidence or factual matrix upon which to make such orders". Order 2 is comprehensive in its effect. Whilst the order may restrict the conduct of the appellant, that is a necessary consequence of the unlawful conduct which has been found against him. 95 Having been satisfied that the publication of the material referred to in the complaints which we have identified was unlawful, we consider that an order restraining Mr Sunol from republishing the material which has been found to be unlawful including material to the same or similar effect on any website whether or not controlled by him is warranted.

Burns v Sunol [2016] NSWCATAD 16 (21 January 2016)

The basis of these proceedings may be understood from the following extract of the Decision of the Tribunal; In 2014 Garry Burns lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board") about John Sunol, the respondent in these proceedings. The complaint concerns content published on the internet, which Mr Burns contends vilifies homosexuals. Section 49ZT of 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. The material which is the subject of Mr Burns' complaint was published on a website apparently operated by a third party, Luke McKee (the offending content). Mr Burns contends that Mr Sunol invited followers of his blog to view the offending content by placing on his blog a link to, and a commentary about, the offending content. Mr Burns also contends that as a consequence of this placement Mr Sunol was responsible in the relevant sense for the act of communicating the offending content to the public. Mr Sunol disagrees and submits that he is not responsible for the material appearing on Mr McKee's website. He argues that Mr Burns is targeting him, not Mr McKee, because Mr McKee is "outside the jurisdiction of NSW". Further he contends that Mr Burns' actions in targeting him and not the "ultimate author" demonstrates that Mr Burns' complaint is vexatious. He describes Mr Burns as a serial complainant. We agree with the submission made by Mr Burns that the words posted on Mr Sunol's website constitute an express invitation to people visiting Mr Sunol's website to click on the offending link and view the offending content. The statement "I think all should read this and make their own decision if they back it [the legalization of Phedofelia [sic]]" does not make the words appearing on Mr Sunol's website any less of an invitation or encouragement to view the offending content. Read in context we find that the material appearing on Mr Sunol's website constituted an express invitation to users to click on the offending link and access the offending content. We find that Mr Sunol was responsible, in the relevant sense, for the "public act" of communicating the offending content to the public. In reaching that conclusion, we note that the offending content could be accessed in a number of ways not just through the offending link on Mr Sunol's website. We direct: (1) Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined "on the papers". (2) Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined "on the papers".
An appeal from this Decision was dismissed (see Sunol v Burns [2016] NSWCATAP 206 (12 September 2016)).
I note the attempt by the respondent to deflect responsibility to Luke McKee, which is consistent with the approach taken by the respondent in these proceedings. It seems to me that it is arguable that if the respondent was genuinely concerned about the use by Mr McKee of his website, as he professed in submissions in these proceedings, that he would have taken some appropriate steps well before the circumstances giving rise to these proceedings to have precluded Mr McKee's involvement in his blog website.

Burns v Sunol [2016] NSWCATAD 74 (19 April 2016)

The basis of these proceedings may be understood from the following extract of the Decision of the Tribunal; 16 In his initiating complaint, Mr Burns asserted that "all of the material" downloaded from the RWA website vilified homosexuals. In written submissions dated 4 September 2015, Mr Burns narrowed the scope of his complaint to two of the 17 passages listed in the Summary of Complaint contained in the President's report. 17 Because some people may find the two passages offensive, we have decided not to reproduce them in full in these Reasons. 18 The first of the two passages is said to have been posted by "Sgt Rock" and is identified in the President's report as Statement 1 (Statement 1). The clear imputation conveyed by that statement is that homosexual men are child molesters who have gone to "all ends to push their vile message on everyone including children". It goes on to pronounce "we" will take action to stop "this sh**". Consideration Statement 1 35 The unambiguous imputation conveyed by Statement 1 is that homosexual men are paedophiles who actively promote their "vile message". 36 Whether an impugned public act has the capacity to incite one or more of the requisite emotions requires an objective evaluation and consideration of the act itself, the context in which it occurred, the surrounding circumstances, the language used, together with the identification of the relevant audience and any relevant characteristics or features of that audience. In making that evaluation, a decision-maker must guard against consciously or otherwise allowing their own reaction to the public act to influence their evaluation of its capacity of the act to incite one of the relevant reactions in the ordinary member of the group. It goes without saying that this task does not lend itself to empirical evaluation and will inevitably be impressionistic. There will be cases because of factors such as the persuasive nature of the language used, the method of communication and/or a particular characteristic of the members of the group which may predispose them to incitement, where there will be little doubt that the act had the capacity to evoke one or more of the relevant reactions in the ordinary member of the target group. Conversely, at the other end of the scale there will be public acts where there will be little room for doubt that it did not have the capacity to evoke those emotions. However, between these two extremes will invariably lie public acts where reasonable minds will differ on whether, objectively assessed, the act has the capacity to incite. 37 As the Tribunal commented in Burns 2016 at [47], in Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to imagine a more damaging slur or insult to level at an individual or group of persons. Statement 1 does more than merely express hatred and serious contempt towards homosexual men; in our opinion it also urges the reader to adopt those feelings. 38 As discussed, the relevant audience to which this message was directed is not a homogenous group. It is unlikely that the statement had the capacity to incite hatred towards or serious contempt for homosexual men among members of the group who, like Mr Burns, hold positive views about homosexual men. Nonetheless, on the balance of probabilities, we find the statement had the capacity to incite hatred of, or serious contempt towards, homosexual men in the ordinary members of the group. Complaint 2: 1410218 At [42] to [49] In this complaint lodged with the President on 17 March 2014, Mr Burns alleged that the following material which appeared on Mr Sunol's website on 14 March 2014 vilifies male homosexuals: That will make * ** going crazy. Proof a gay man is 3 times more likely to rape children! My dad explains it in simple english. Embed both of the you tube videos on those pages like i showed you What he going to do? Jail you for having you tube videos from the ABC, with links to world media reports? ** ** him The material claimed by Mr Burns to fall within s 49ZT(1) is the statement "Gay men are three times more likely to rape children". Did the offending material have the capacity to incite hatred towards, or serious contempt of homosexual men? The message conveyed by the statement is unambiguous: "Gay men are three times more likely to rape children". As stated above in our opinion it is difficult to imagine a more damaging slur or insult that to accuse person or group of being a paedophile. We find the composition of the relevant audience to whom the message was directed (readers of Mr Sunol's website) to be the same as that identified in relation to Complaint 1. For the reasons given above we think it more probable than not that the statement had the capacity to incite each of those emotions in the "ordinary member" of the group. That conclusion is bolstered by the use of the reference to statistics - "three times more likely" - which tends to imply that there is some factual basis for the claim and it was based on some statistical evidence. Did the offending statement have the capacity to incite "on the ground of" homosexuality? The "target" of the offending statement is expressly stated to be "gay men". There is nothing to suggest from the language used in the statement or the context in which it appears that some other feature or characteristic of this group was a contributing factor to the incitement. We find the statement had the capacity to incite each of the relevant emotions towards homosexual men on the ground of homosexuality of the members of that group. Conclusion We find each element of s 49ZT(1) of the Act to be satisfied.
The Tribunal found that the applicant suffered a detriment as to some parts of the complaints, and was victimised in part.
In determining whether to make a restraining order, the Tribunal said; Restraining order Having found the Complaint in part, we may make an order enjoining Mr Sunol from continuing or repeating any conduct rendered unlawful by this Act (s 108(2)(b) of the Act). In Burns v Sunol [2015] NSWCATAD 131 the Tribunal (differently constituted) made the following orders: (1) In this order, "the material" means: (a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me. (b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on. (c) Older homosexuals call their underage love interests or targets 'chickens' or 'chicks'. The baby chicks featured in this video was likely an advertisement for the pedorists ring. (d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims. (e) Everybody with commonsense knows gay people have issues and are inclined to be pedophiles, but they call sane people 'homophobic' and don't give a damn if children are being hurt. (f) Gay marriage is child abuse. (2) The Respondent is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him. Mr Sunol's appeal against the above decision was dismissed: Sunol v Burns [2015] NSWCATAP 207. While not identical the material the subject of the orders made in Burns v Sunol [2015] NSWCATAD 131, is broadly similar to the material we found to constitute unlawful homosexual vilification. For that reason we have decided there would be no utility in making a further order under s 108(2)(b) of the Act as it would in effect duplicate an existing order made by NCAT. We have decided it is appropriate to order Mr Sunol to publicly acknowledge that he has contravened s 49ZT of the Act. We order: Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:
I note with concern that the Tribunal declined to make a restraining order because the respondent had previously failed to breach such an order made in prior proceedings. Of course, the force and effect of that prior order remains in force in the absence of any evidence that it has, in some way, expired or been overtaken by some other order. In any event, the observations made by the Tribunal in this decision are indicative of a continuing disregard by the respondent of the force and effect of orders of this Tribunal.

Burns v Sunol [2016] NSWCATAD 81 (29 April 2016)

The basis for these proceedings which concern a publication made in May 2015 may be understood from the following extract from the Decision of the Tribunal; We accept as argued by Mr Sunol, that the offending material does not state that homosexual men are "dirty, perverted and sick criminals..." or that homosexual men "... adopt children so they can groom them for sex". Nonetheless, in our view the ordinary reader is likely to have understood that the meaning conveyed was that same sex marriage would permit homosexual men to adopt children and, in turn, allow "all sorts of nasty things" to happen, including "child paedophilia". The test of whether the offending material has the capacity to incite hatred towards, and/or contempt of, male homosexuals is an objective one. It goes without saying that the offending material is likely to be capable of evoking different emotions in different people. As discussed in Burns 2016 at [38] whether the offending material has the capacity to incite one or more of the relevant emotions rests in part on any pre-existing views held by members of the group about homosexual men. It is reasonable to assume, as we did in Burns 2016, that members of the group held a diverse range of views about homosexual men. We commented in Burns 2016 at [37] that in Western society paedophilia is a crime and attracts strong moral condemnation. It is difficult to imagine a more damaging slur or insult to level at an individual or group of persons. In our view, the offending material does more than merely express hatred and serious contempt towards homosexual men; it urges the reader to adopt those feelings (see also Burns v Sunol [2016] NSWCATAD 16 at [47]). We find the offending material had the capacity to incite hatred of, and serious contempt towards, homosexual men in the ordinary members of the group. The final issue to be determined is what if any order should be made under s 108(2) in relation to Complaint 1. In Points of Claim, Mr Burns sought orders that Mr Sunol cease "homosexual vilification". At hearing, he advised that he no longer sought an order of this type, namely an order under s 108(2)(b) of the Act enjoining Mr Sunol from continuing or repeating the type of conduct the subject of this Complaint 1, because he acknowledged orders to that effect are already in place as a consequence of the decision in Burns v Sunol [2015] NSWCATAD 131. We note that an Appeal Panel of NCAT dismissed Mr Sunol's appeal against that decision on the ground that the Tribunal lacked power to make orders of that type: Sunol v Burns [2015] NSWCATAP 207. For these reasons we make we make no orders under s 108(2) of the Act.
This provides a further indication of the continuing disregard by the respondent of the force and effect of orders of this Tribunal.

Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017)

The basis for these proceedings may be understood from the following extract from the Decision of the Tribunal; The second vilification complaint The following article (the offending article) appeared on the Sunol website on 14 September 2016: "Gay Dads" keep on raping, and "marriage Equality: is a platform to give them more boys to rape!" 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. 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.
The Tribunal rejected the applicant's claim that he had suffered any detriment and had thereby been victimised. It declined to make any compensation order.
The extract from the Decision of the Tribunal in this matter provides further background material concerning the failure of the respondent to take any appropriate steps to remove the ability of Luke McKee to publish material on his website. This further corroborates concern as to the validity of the protestations made by the respondent in his submissions in these proceedings as to his lack of knowledge of the involvement of Mr McKee in the publication of material on his website.

Burns v Sunol [2017] NSWCATAD 215 (30 June 2017)

The background to these proceedings is set out in the following extract from the Decision of the Tribunal; On 12 August 2016 Mr Burns lodged a further complaint with the Board (the Complaint) concerning material published on Mr Sunol's website under the heading "Some interesting things will happen". Suffice to say for current purposes, the material about which Mr Burns complains (the offending passage) states that Mr Burns hires teenage prostitutes. In addition it describes, in salacious detail, sexual acts which Mr Burns is alleged to have engaged in with a male minor. For the reasons that follow, we find the Complaint to be substantiated.
The material about which the applicant complained was read by him on or about 30 July, 2016. I should add that the offending material was not reproduced in the Decision because it was said to contain "obscene and indecent content."
In the course of the Decision the Tribunal had cause to comment on the asserted involvement of Mr McKee in publishing the offending material on the respondent's website. This is the same line of reasoning which the respondent submitted in the proceedings before me which gave rise to an exculpatory explanation on his part. I note, however, that the factual material considered by the Tribunal was not consistent with the submission of the respondent in those proceedings concerning his conduct relating to the removal of offending material from his website. The Tribunal said; At the hearing, Mr Sunol admitted that he had given Mr McKee the password to his website and that this enables content to be posted on the website. However, he claimed because of "all the trouble" Mr McKee had caused him, at some point in time he changed his password. He said he could not remember when he changed his password. He asserted that even without a password Mr McKee would be able to post material on his website because he is "very internet savvy". Mr Sunol stated he did not endorse the views expressed by Mr McKee in the offending passage that Mr Burns was a "child molester". He said if he found comments such as that on his website he would "take it straight down". When asked why the offending passage was still on his website on 18 February 2017, he stated that it had probably been missed. He claimed he had "so much stuff on my blog: I don't have the time or ability to take it down". He stated that he will not be held responsible for what another person, relevantly Mr McKee, writes. Mr Sunol admits that he operates the website on which the offending passage was posted and that he has the ability to remove posted content. The offending passage had been on the website for 13 days when Mr Burns lodged the Complaint with the President. There is no evidence that Mr Sunol took steps to remove the offending passage during or after that period. As we noted, the offending passage had not been removed from Mr Sunol's website seven months after it was posted. Mr Sunol made the general claim that if he becomes aware of offensive material on his website he takes steps to remove it. However, with respect to the offending passage, he admits being aware of it and taking no steps to remove it. Given those facts, it is not necessary to determine whether when Mr McKee posted the offending passage he had access to the website by a password or some other means. Mr Sunol is correct that by writing and posting the passage on the website, Mr McKee was responsible for its communication to the public. Nonetheless, in circumstances where Mr Sunol had actual knowledge that the offending passage had been posted and he took no steps to remove it from a website which he operated and controlled, and he took no steps to remove it, he is also relevantly responsible for its publication, or more correctly, repeated publication. A "public act" as defined by s 49ZS of the Act may be the act of more than one person.

Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017)

The following extract summarises the nature of the complaint being considered by the Tribunal, and its Decision; The following article (the offending article) appeared on the Sunol website on 14 September 2016: "Gay Dads" keep on raping, and "marriage Equality: is a platform to give them more boys to rape!" 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.

Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)

The following extract summarises the nature of the complaint being considered by the Tribunal; Mr Burns alleges that comments made by Mr Sunol in a YouTube video posted on Mr Sunol's website amount to unlawful homosexual vilification. Entitled, "Message to Gary Richard Burns over my $55,000 Debt", the video is just over five minutes in length. In the video, Mr Sunol voices his displeasure with Mr Burns' pursuit of complaints against him made under the the Act and, in particular his recent attempts to enforce a judgement debt said to be in the sum of $55,000. After stating that the complaints of homosexual vilification brought by Mr Burns were based on "hyped up rubbish" and a "bunch of lies" and should be thrown out, Mr Sunol goes on to say: I ain't paying a child molesting faggot $50,000 for a bunch of cases, which on balance of probabilities are substantiated on fraud, false lies, which I refuse to recognise ... I refuse to pay and all the other child molesting faggots, that's all they are child molesting fags ... they will decide they have been vilified... they will want money as well ... they will put me through more court cases. Mr Sunol goes on to claim that Mr Burns' actions will result in him being declared bankrupt. Looking directly to camera he says "I totally refuse to apologise ... I totally refuse to pay you anything ... I'm going hard line". The video ends with Mr Sunol saying: On another issue it's [the complaints made by Mr Burns] nothing to do with same sex marriage. It's all politics. Blatant cold hard Marxist politics ... Mr Sunol devotes a significant proportion of the video to outlining the steps he has taken to protect his assets in the event he is again declared bankrupt. Apparently Mr Sunol has recently been discharged from bankruptcy. The trigger for making and posting the video was the commencement of recovery proceedings by Mr Burns in respect of money orders made by NCAT and one of its predecessor tribunals, the Administrative Decisions Tribunal (the ADT) under the Anti-Discrimination Act. In October 2016, Mr Burns filed a certificate issued by the NCAT Registrar, certifying that Mr Sunol owed him $49,500 in the NSW Local Court. As a result a judgement debt in the amount of $55,000 (which apparently includes a component for interest) was created: s78(3) of the NCAT Act. In late 2016, a sheriff of the NSW Local Court arrived at Mr Sunol's home seeking to enforce the judgement.
Prima facie, the material published on the website is indicative of an acknowledgement by the respondent that he has not paid any of the monies ordered by this Tribunal and its predecessor to be paid by him to the applicant in the course of the many proceedings initiated by the applicant against him. Whilst the date of publication is not apparent, it may be assumed it occurred some time in late 2016.
Relevantly for present purposes, the Tribunal determined that; That part of the complaint of homosexual vilification relating to Statement 1 is substantiated. The balance of the complaint of homosexual vilification is dismissed. The complaint of victimisation is substantiated.

Conclusions based on the several Decisions of the Tribunal extracted above

I should stress that the last published Decision to which the respondent referred me was Burns v Sunol (Number 2) [2017] NSW CA to a 236. The remaining decisions were referred to him by name, but had not been published as at the date that he had prepared the schedule of decisions. I have located the subsequent published decisions during the course of preparation of these reasons for decision.
As I perused the decisions which I have referred to above, a number of matters became clear, the totality and extent of which had not been revealed during the course of the hearing before me. These were; 1. there are many instances where the respondent has breached orders of this Tribunal (I shall disregard any breaches of orders of its predecessor). 2. those breaches have persisted over a long period of time. 3. the respondent has indicated in publications made by him on his Internet site that he will decline to comply with many of those orders 4. contrary to the impression which he sought to make in the hearing which I had conducted, he has relied on many occasions on the fact that Luke McKee has had access to his website, has published material on it without his authority, and that he has removed that material immediately becoming aware of it. The findings by the Tribunal that the respondent has in fact permitted that material to remain on his website for varying periods, and that the publication of material on the website by Mr McKee occurred frequently must cast great doubt on the veracity of the evidence given by the respondent during the course of the hearing which I conducted 5. not only has the respondent failed to honour the very many orders imposed upon him restraining him from future publications of the same kind of unlawful material when coupled with the orders for the payment of monies, but his constant failure to honour the apologies rendered by him from time to time must cast considerable doubt on the sincerity of the apology which he tendered during the course of the hearing before me 6. the publication of the scurrilous and, as conceded by the respondent, abhorrent material about the Principal Member which was the subject of the application as originally brought by the applicant, is not an isolated event. So much can be gleaned by the material contained within the document which the respondent made available to me during the course of the hearing and which I have referred to in the course of paragraph [17] above.
Having regard to the above matters when considered in their totality, it appears to me, on my own view, that the respondent has conducted himself in a manner which is capable of constituting contempt of this Tribunal. The factual bases are established by the various extracts from the Decisions of the Tribunal as to the content of the publications, the orders made and the breach of those orders. I shall elaborate on the nature and extent of the contempt later in these reasons for decision.
It follows that I am empowered to refer such contempt to the Supreme Court for determination pursuant to the provisions of section 73 (5) of the Act. To the extent that I have reached such a conclusion extending as it does well beyond the application made by the applicant, it also follows that that application has been overtaken and subsumed within the conclusions which I have made. I stress that in determining whether to exercise the discretion to make such a referral, it is necessary that I afford the respondent an opportunity to make such submissions, and provide such evidentiary material as he wishes in opposition to the exercise of that discretion.
For the purpose of assisting the respondent who to date has been unrepresented in providing evidentiary material and making submissions, I intend to provide some brief observations concerning the fundamental principles which apply to the law of contempt, and to particularise the nature and extent of the contempt which has prima facie been established by reference to the subject matter of the application brought by the applicant and the other material to which I have referred. I do not wish to unduly disadvantage the respondent in any way, but I note from the material which he has provided to this Tribunal for the purpose of resisting this application that the respondent claims to have tertiary education qualifications consisting of a B Soc Sc from the University of Newcastle, a Post Graduate Certificate in Business Marketing Communications and a Master's degree from Wollongong University. I will therefore assume an appropriate level of intelligence in applying himself to the material which I set out below.

The nature of contempt

Lest the respondent be in any doubt, I regard the provisions of section 73 of the Act as exposing a person who is guilty of relevant contemptible conduct to prosecution for an offence of contempt of this Tribunal in the same manner as would apply to contempt of the District Court of NSW.
A general description, as a starting point is the statement of Lord Diplock in the House of Lords in Attorney-General v Times Newspapers [1974] AC 273, commencing at 307. His Lordship said: My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. 'Contempt of court' is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.
For present purposes, I am concerned with two forms of contempt. The first is conduct which consists of disparaging statements which have the effect of undermining the maintenance of public confidence in, in this case, this Tribunal by reference to the character, integrity, honesty and worth of its members. The publication of the material on the respondent's website referred to in paragraphs [7], [8] and [9] above and the statement of the respondent referred to in paragraph [17] is such conduct. As such, it brings the members of this Tribunal into disrepute, and undermines public confidence in it and its decisions.
The second form of contempt is conduct which consists of a failure to comply with orders of this Tribunal.
Such conduct is capable of constituting contempt even though the relevant orders may have been secured by an individual for his or her own benefit. Such might arguably be the case concerning the breach of the several orders of this Tribunal made from time to time that the respondent pay monetary sums to the applicant. In Witham v Holloway [1995] HCA 3, Brennan, Deane, Toohey and Gaudron JJ in the High Court of Australia spoke of the dichotomy between proceedings in the nature of contempt taken in the public interest and the involvement of private individual interests in such proceedings in the following terms; 15. One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, 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. 16. Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties. 17. Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a "penal or disciplinary jurisdiction" may also be called into play. It has been held that the "penal or disciplinary" jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. Thus, in Canadian Transport v Alsbury, Sidney Smith JA rejected the submission that settlement precluded further proceedings saying: "Are we to be told that after a party has defied a court, the court can still do nothing because the other party is willing to swallow the contempt? Nothing short of the clearest authority would convince me that that is the law; and there is no such authority and no such law." And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown(35), their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri, that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed". 18. Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as "punitive" and others as "remedial or coercive". Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. 19. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise. (citations omitted)
The reference to Mudginberri in the above extract is a reference to A.M.I.E.U. v. Mudginberri Station Pty Ltd [1986] HCA 46 in the High Court. In a joint judgment Gibbs CJ, Mason, Wilson and Deane JJ described the ingredients of contempt constituted by a failure to comply with court orders as follows; 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.
Non-compliance with orders will constitute wilful disobedience unless such non-compliance is "casual, accidental or unintentional." The nature and extent of that non-compliance are matters which may be taken into account in determining whether the non-compliance is deliberate. Of course, in circumstances where a person such as the respondent publishes material expressing a readiness to defy compliance with orders of this Tribunal it may more readily be concluded that any non-compliance is deliberate.
I should add for completeness that it is arguable that the several orders of this Tribunal restraining the respondent from further publication of unlawful material do not fall into the category of private rights. Once made, those orders have a more compelling public purpose with concomitant greater concern to ensure, in the interests of the administration of justice, that they are complied with.
Finally, I refer to 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.

An analysis of the conduct of the respondent

I now proceed to consider the conduct of the respondent which I have outlined above in the context of whether I can be satisfied that it appears to me on my own view that the respondent is guilty of contempt of the Tribunal so that the respondent may be given an opportunity of considering and addressing the Tribunal about whether a referral of that conduct should be made to the Supreme Court.
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].
It appears to me that the respondent's conduct which is outlined below is capable of constituting contempt of this 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 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 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 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 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 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
For the purpose of further clarification of the conduct of the respondent which constitutes contempt of this Tribunal, I have noted that the first occasion on which this Tribunal made an order restraining further publication of the same material or material to similar effect was 22 January, 2014 as referred to in paragraph [50]. Evidence of breach of this order and subsequent orders to similar effect is provided by subsequent orders of this Tribunal made on 25 June, 2015 concerning publications on 21 and 23 March, 2014, the publication the subject of the order of 21 January, 2016 as referred to in [57], a publication on 14 March, 2014 as identified in paragraph [60], a publication made in May 2015 as identified in [64], a publication on 14 September, 2016 as identified in [66], a publication on 30 July, 2016 as identified in [70] and [72], and a publication made in late 2016 as identified in paragraph [73].

Orders

I make the following orders consequent upon the finding that the respondent has engaged in conduct as described in [91], [92] and [93] above that is capable of constituting contempt of this Tribunal; 1. These proceedings are stood over to enable the respondent to provide such evidence and to make such submissions as he may wish at a further hearing as to whether the Tribunal should refer his conduct to the Supreme Court. 2. The applicant may file and serve before 20 April 2018 any evidentiary material which he wishes to make available to the Tribunal limited to whether or not the respondent has complied with orders made by this Tribunal. Such evidence must be in sworn form, or, if not, the applicant must be prepared to be sworn as to its truthfulness at the next hearing. 3. Any evidence which the respondent wishes to provide should be filed in the Registry before 4 May 2018 and served on the applicant. 4. The proceedings are stood over for further hearing at 10 am on 11 May 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: 10 April 2018

At a glance

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Judgment (25 paragraphs)

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Legislation Cited (1)

Cases Cited (21)

Cited By (3)