Sunol v Burns

Preliminary Issue

1. At the commencement of the appeal, Senior Member Renwick, as a member of the Appeal Panel brought to the parties' attention that he had appeared for the Attorney-General: 1. who was the intervener in a matter involving the Appellant, namely Sunol v Collier [2012] NSWCA 14; see also Sunol v Collier (No 2) [2012] NSWCA 44; and 2. who was the moving party in a matter involving the respondent, namely Attorney-General v 2UE Sydney Pty Ltd and Burns [2006] NSWCA 349.
2. Each case involved constitutional or jurisdictional questions.
3. The Appeal Panel records that the Appellant and the Respondent, having been apprised of Senior Member Renwick's involvement in the above cases, consented to this appeal proceeding with the Appeal Panel as currently constituted.

Tribunal findings

1. Section 49ZT of the Act relevantly provides: (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. The Tribunal, having considered the complaints and having found that breaches of s 49ZT of the Act had occurred, noted that the respondent sought neither damages nor an apology from the appellant. Rather, the respondent sought to prevent the appellant from continuing to publish statements via the appellant's website which the respondent claimed were harmful to homosexual men and women. The appellant made no submissions to the Tribunal concerning any such order.
3. The Tribunal, having identified the offending material in the first paragraph of its order, then ordered the appellant be restrained from publishing the same or similar material ("the restraining orders"). Such order provides: (2) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.

Notice of Appeal

1. The grounds of appeal upon which the Appellant brings the appeal are as follows: 1. The Tribunal below misconstrued the law, specifically s 49ZS of the Anti-Discrimination Act. 2. The Tribunal failed to apply the test of 'Public Act' within the meaning of s 49ZS, adequately or at all. 3. The Tribunal took into account irrelevant considerations, in particular the decision to order the Appellant to be responsible for any material on any website, "whether or not controlled by him" [Order 2]. 4. The Tribunal failed to take into account relevant considerations, to wit the fact that the Appellant does not pass any or all of the statutory or common law tests to be applied when considering the question of what is a "Public Act" within the meaning of s 49ZS. 5. The Tribunal failed to apply the model litigant principles and other rules of Procedural Fairness in that the Respondent was entirely unrepresented throughout the proceedings and furthermore, the Tribunal made no attempt to afford procedural fairness to him. 6. That a breach of the rules of natural justice occurred in connection with the making of the decision: In that it was not put to the Respondent whether he could control materials that are not capable of being controlled or upon which he is responsible. 7. That procedures that were required by law to be observed in connection with the making of the decision were not observed: That section 49ZS and each element was not applied, to wit, specifically at Paragraph 41 of the said Judgment where only subsection 49ZS(a) is applied but not 49ZS(c) upon which the decision is silent and not considered. 8. That upon Ground [7], the decision was Manifestly Unreasonable against the statutory construction of the Act such that no reasonable Tribunal member could make the decision that it did. 9. That the person who purported to make the decision did not have jurisdiction to make the decision: That the decision to make Orders against a person upon which there is acknowledged even within the body of the Order a prohibition against the Respondent to refrain from publishing material whether or not controlled by him is incompetent and fails the test of reason against the statutory purpose of the Act. It is ultra vires for the Tribunal Below to make a decision that effectively prohibits a person from publishing text of another in circumstances where that publication is no more than a link and upon which the other side of the link is a website of which the Appellant has no control whatsoever. 10. That the decision was not authorised by the enactment in pursuance of which it was purported to be made: The Decision maker being the Tribunal Below has usurped for itself a power to make Orders of the kind in Order 2 which it does not have the authority to make and is thereby ultra vires. 11. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made: That Order 2 extends beyond the exercise of this Tribunal's power in encumbering a Respondent to comply with an Order that is subject to doctrines of frustration and impossibility. Specifically, the Respondent can never know whether he is breaching the Rule for lack of certainty, because he cannot know at any moment of time the content of a website not controlled by him. 12. That the decision involved an error of law, whether or not the error appears on the record of the decision: The Decision in Order 2 specifically, involves an error of law in the misapplication of section 49ZS of the ADA. 13. That there was no evidence or other material to justify the making of the decision: There is no evidence of the existence of the link but for untested submissions going to purported link between the Respondent and ultimate linked materials. Further, this material was not supported by any forensic examination on behalf of the referring person the President of the ADB. 14. It is common to see the matters being referred by the ADB but they are not joined as a party for the purpose of cross-examination on questions of what investigations, if any, they conducted in reaching the decision to refer this and other matters to the Tribunal for consideration. This is a serious denial of procedural fairness and natural justice in failing to afford the Respondent any capacity to question the referring power and the factual and legal basis upon which the referral is made. 15. That the decision was otherwise contrary to law: in failing to apply property or at all the provisions of the ADA specifically those provisions in s 49ZS and 49ZT of the Act.
2. The submissions have refined the specific matters to be relied upon and the written arguments identified the particular matters to be considered. We consider below only those grounds presented at the hearing of the appeal.

Uncertainty of restraining Order (Order 2)

1. The appellant contends that the use of the word "publishing" in Order 2 is intended to have an effect in the future and may not be confined to the reference to "material" which was defined in Order 1. The appellant submits that he would be "left floundering as to whether any other publication, now or in the future, will render him in contempt of Order 2 if Order 1 is not the limit of Order 2". That is, the appellant submits that there is no capacity for him to know what "material" within Order 2 can mean, other than by reference to Order 1. Secondly, it is submitted that the phrase in Order 2: "same or similar effect", "expressly provides that there is a category of materials over and above the stipulated material found in Order 1 which is in addition to and not expressly provided for in Order 1".
2. The appellant claims that the wording of Order 2 is "beyond the capacity of any fair minded lay person to identify with any accuracy or precision what conduct on his part trigger [sic] a contempt of Order 2 by virtue of the fact that the material does not exist or that the Tribunal is being speculative and prospective in the making of these orders against which the Respondent [sic Appellant] has no case to answer". Accordingly he submits that it is "beyond a fair minded reasonable person to know what materials of 'similar effect' can mean" and that the term is so vague as to "reduce the Order to impotence".
3. The issues raised by the appellant give rise to a consideration of power of the Tribunal to make an order of a kind that is now in question.
4. In a matter such as this, jurisdiction is invested in the Tribunal to exercise any power given to it either by the Act or the Civil and Administrative Tribunal Act 2013 No 2 (NSW) ("NCAT Act") (see s 29). Section 108 of the Act relevantly provides: (1) Proceedings relating to a complaint, the Tribunal may: (a) Dismiss the complaint in whole or in part, or (b) Find the complaint substantiated in whole or in part." (2) If the Tribunal finds the complaints substantiated in whole or in part, it may do any one or more of the following: (a)… (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, ….
5. Section 58 of the NCAT Act provides: A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.
6. Accordingly a broad power is invested in the Tribunal to make orders in the nature of a restraining order, which may be subject to conditions.
7. Once such power has been invested, as with a general declaratory power, the discretion of the Tribunal to fashion an order to suit the circumstances is "almost unlimited": see Hanson v Radcliffe UDC [1922] 2 Ch 490 at 507 per Lord Sterndale MR, making observations in reference to the rules applicable in the High Court of Justice (UK), Order XXV Rule 5, which were cited with approval by Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 438.
8. The Tribunal found that there had been a breach of the Act by the appellant, and further that circumstances justified an order in the nature of a quia timet injunction in view of the fact that, whilst no future act had yet occurred, there was the apprehension of the possibility that such conduct would be repeated.
9. Authority for the making of such a future order is well established: see for example, Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, where Viscount Finlay said (at 859): Some particular tort is threatened, nothing has yet been done. The commission can be restrained by injunction See also the observations of Lord Sumner at 866-867.
10. 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.
11. Here, the terms of s 108 of the Act amply support the orders made.
12. 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.
13. 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) 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.
14. 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.

Extension of Restraining Order (Order (2))

1. In respect of the submission that the appellant is incapable of discerning what material lies outside the scope of order 1, Order 2 restrains the publication of "the material" as defined, "including statements to the same or similar effect". By this extension, words of homosexual vilification which might not be identical to the words referred to in Order 1 but which are similar to or having the same effect of those words, are included in the prohibition.
2. As the Appeal Panel has already concluded, the subject matters described in Order 1 are quite clear and can be readily understood in plain English. A reading of the words and subject matters referred to in Order 1 make it plain not only to the appellant, but to any other person, not only the exact words, but in addition, the very nature of the material which the appellant is not to publish. Order 1 therefore properly defines and limits the scope of the offending material.

Scope of order

1. The appellant also submits the words "on any website" in Order 2 is vague and ambiguous, and he questions whether the order anticipates only current websites at the time the order is made or whether it would extend to prohibiting future websites. He submits that Order 2 is "infected with frustration, unenforceability and illegality", and that the order is too broad to be enforceable.
2. 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.
3. 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.
4. 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".
5. 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.

Website control

1. Next, the appellant objects to the words contained in Order 2, namely "whether or not controlled by him". The appellant submits that the material would not be under his effective control, if it is on a website not controlled by him.
2. It does not assist the appellant to concentrate on words "on any website" in isolation of other words contained in the restraining order. The prohibition upon the appellant is directed to him and restrains him from publishing "the material [i.e. the offending material] … on any website whether or not controlled by him".
3. The restraint is directed to prohibition of statements of homosexual vilification authored by the appellant of the same, or same nature, as defined in Order 1. The restraining order prohibits the appellant from publishing the offending material. If others should do so, they expose themselves to the possibility of being charged with aiding and abetting a breach of the Tribunal's restraining order. Without such restraint, any order which the Tribunal might make would be rendered nugatory.
4. In the decision appealed from, the Tribunal said, in terms which we adopt, and which further dispose of this ground, the following: 92 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." 93 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." 94 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]. 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.

Contravention of the Act

1. In the written submissions the appellant submitted that there is no contravention under s 49ZS and s 49ZT of the Act. However, no submissions were made either orally or in writing in support of this submission and at the hearing this submission was abandoned. Nevertheless we have considered the carefully reasoned decision of the Tribunal.
2. In Sunol v Collier (No 2) [2012] NSWCA 44, the Court of Appeal considered whether statements of a similar kind to those contained in the offending material constituted a breach of s 49ZT of the Act. The Court noted the very wide operation by such section (see decision of Bathurst CJ at [13]). Further at [70] Allsop P said: Certain subject matters are of a character that care needs to be taken in discussion of them in order that forces of anger, violence, alienation and discord are not fostered. Race, religion and sexuality may be seen as examples of such. Racial vilification of the kind with which the Federal Court dealt in Toben v Jones [2003] FCAFC 137; 129 FCR 515 is capable of arousing the most violent and disturbing passions in people. If it were to be carried on for political purposes it would make the effect on people no less drastic. Similar types of vilification can be contemplated directed to other racial groups, other religious groups or groups having different sexual orientations than what might be said to be 'usual'. A diverse society that seeks to maintain respectful and harmonious relations between racial and religious groups and that seeks to minimise violence and contemptuous behaviour directed towards minorities, including those based on sexual orientation, is entitled to require civility or reason and good faith in the discussion of certain topics.
3. Based upon the foregoing analysis, the Appeal Panel is satisfied that the offending material readily satisfies the prohibition contained in s 49ZT of the Act.

"Bad faith"

1. The appellant suggests that the restraining order was granted "in bad faith" where both the complainant and the Tribunal were aware that the orders sought and made were never capable of being put into effect by virtue of the argument and reasons contained in the submissions relied upon by the appellant. We find that there is no merit in any of the submissions made by the appellant. There is no evidence of any "bad faith" as alleged.
2. Accordingly, it follows that the challenges to the Tribunal's orders do not succeed.

Orders 1. The Appeal is dismissed.

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

Amendments 29 September 2015 - Paragraph 26 - inserted the word 'or' between 'words' and 'statements'. 29 September 2015 - Paragraph 23 - format quotation. 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: 29 September 2015