Sunol v Burns

49ZT(1)

1. The key challenge on 49ZT(1) is to the following reasoning of the Tribunal below: 24 Mr Sunol contends that the disclaimer posted on 6 December 2014 makes it clear that he was not endorsing the views expressed by Mr McKee but rather encouraging people to "make up their own minds". 25 While it is not entirely clear how long the material the subject of Mr Burns' complaint was on Mr Sunol's website before the disclaimer was posted, the available evidence indicates that it was at least a couple of days. Mr Burns testified that he saw the material (at Tab 1 of the President's Report) on or about 2 December 2014. The length of time that the material appeared on Mr Sunol's website before the disclaimer was posted may be relevant to the issue of relief, but it is otherwise irrelevant to our determination. Is the offending communication a public act of Mr Sunol within the meaning of para (a) of s 49ZS? 26 There is no argument that the publication of material on the internet, which as in this case is not password protected, is "a form of communication to the public". Nor is there any disagreement that the communication of the offending content is a "public act" within the meaning of s 49ZS of the Act. The issue in dispute is whether its communication to the public is a public act by Mr Sunol. 27 The definition of public act must be read in the context of the substantive provision, s 49ZT of the Act, which makes it unlawful for a person, by a public act to incite ... Mr Sunol contends that the offending content was not a form of communication by him but rather a form of communication for which Mr McKee is responsible. Mr Burns, on the other hand, contends that by placing on his website the words "all should read this ... all should read this and make their own decision" and providing a link to Mr McKee's website, Mr Sunol was inviting or encouraging his "followers" to read the offending content. Mr Sunol disagrees and argues that the words on his website were nothing more than a "bald invitation" and are insufficient to attribute responsibility to him for the offending content. 28 In support of their respective positions, both parties referred us to decisions of NCAT and one of its predecessor tribunals, the Administrative Decision Tribunal, in which both were parties. 29 In Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal (differently constituted) considered whether Mr Sunol had communicated to the public three publications, which appeared on websites maintained by third parties. The Tribunal reasoned (at [34]) that Mr Sunol was relevantly responsible for two of those publications because first, each contained material that he had composed and, second, Mr Sunol expressly invited users who had logged onto it to click on the requisite phrase and gain access to the publications. With respect to the third publication, the Tribunal held that Mr Sunol was not responsible for its communication to the public: "It is not clear from the evidence relating to [that] publication ... that any such invitation existed on a website maintained by Mr Sunol": at [35]. 30 More recently, in Burns v Sunol [2015] NSWCATAD 40 (Burns 2015), the Tribunal found that the publication of statements relating to a YouTube clip, which appeared on a website that was not maintained by Mr Sunol, nonetheless constituted a public act of Mr Sunol. The Tribunal found at [41] that the words posted by Mr Sunol on his website - "some very interesting videos on corruption from Luke McKee" - constituted an invitation to access those videos and taken together with the accompanying link made Mr Sunol responsible in the relevant sense for the impugned "public act". 31 Mr Sunol contends that the Tribunal in Burns 2015 misapplied the principles established in Burns 2012, which he contends establish the: (1) First responsibility test (2) Operator test (3) Accessibility test (4) Knowledge test (5) Intention test (6) Second responsibility test (7) Composition test. 32 If Mr Sunol is contending that Burns 2012 is authority for the proposition that the alleged vilifier will only be relevantly responsible for the publication of material said to vilify homosexuals appearing on a website maintained by third party, if each of the above "tests" is satisfied, we cannot agree. It is a misreading of Burns 2012 to suggest that the Tribunal held that where the impugned material is published on the website of a third party, the alleged vilifier will only be relevantly responsible if they were the operator of the third party website, primarily responsible for the publication of, or the author of the impugned material, or placed that material on that website. 33 There is no evidence to contradict Mr Sunol's claim that he was not the operator of Mr McKee's website, the author of the offending content, or that he posted the offending content on that website. The real issue is whether his actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material. 34 Consistent with the approach taken by the Tribunals in Burns 2012 and Burns 2015, the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images. 35 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. 36 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.
2. We consider that the decision below properly follows Burns 2012 and Burns 2015 in concluding that attributing the 'public act' on a third party's website to the alleged vilifier is a question of fact that 'requires consideration of the context in which the offending link appears, including any surrounding words and images'. We consider that test to be correct. Certainly, it is not possible to contend that there is some 'bright line' construction of the provision which allows alleged vilifiers to avoid the operation of s 49ZT simply because they are not the author of the vilifying material but, rather, invite or encourage the material to be viewed (albeit without expressly endorsing it).
3. Given s 49ZT was not relevantly misconstrued the question for us is whether there is a question of law raised by the Applicant. We adopt what the Appeal Panel said in Codlea Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAP 30 at [21]-[24], namely: 21 Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 permits an appeal from the decision below "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.'" There is much learning in the cases on what is 'a question of law'. In a recent decision of the Appeal Panel in Rogers v Vinoly [2016] NSWCATAP 2, it was said: [12] The Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 ( Pozzolanic ) identified five general propositions in relation to the distinction between questions of law and fact. These were extracted by the High Court in Collector of Customs v Agfa-Gevaert [1996] HCA 36; (1996) 186 CLR 389 at 395 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) (Agfa-Gevaert): The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. (22) Jedko Game Co Pty Ltd v Collector or Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1972] UKHL 6; [1973] AC 854. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (23) Life Insurance Co or Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner or Taxation [1956] HCA 80; (1956) 94 CLR 509 at 512; Neal v Department or Transport [1980] FCA 45; (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491. The meaning of a technical legal term is a question of law. (24) Australian Gas Light Co v Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Federal Commissioner or Taxation [1979] FCA 66; (1979) 40 FLR 208 at 215. The effect or construction of a term whose meaning or interpretation is established is a question of law. (25) Life Insurance Co of Australia [1925] HCA 18; (1925) 36 CLR 60 at 79. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." (26) Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7, per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) [1985] FCA 312; (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJ. In Pozzolanic , the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. (27) Pozzolanic (1993) 43 FCR 280 at 288, citing Hope [1980] HCA 16; (1980) 144 CLR 1 at 8. [13] In relation to the fifth proposition, in Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; (1995) 59 FCR 6 Hill J noted at 16 as follows: The rule that a question of fact is involved in determining whether facts fall within the meaning of a word once that meaning is ascertained, may cause confusion. The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law. This is the sixth proposition enunciated by [Jordan] CJ in the Australian Gas Light Co case. The rationale for this principle is clear enough. If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal's conclusion must be an error of principle, that is to say, an error of law. The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree. 22 In May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93, a Full Court of the Federal Court was considering whether an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) raised a question of law in the context of whether the appellant had an "injury" for the purposes of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). A bench of five judges said: [194] The … question of whether, on the facts as found by the Tribunal in the present case, it was open to the Tribunal to decide that the appellant had not suffered an "injury" is also a question of law. That is, adopting the correct construction of the statutory concept of injury in s 4(1) of the SRC Act, whether the material before the Tribunal reasonably admitted of different conclusions is a question of law. In contrast, assuming a positive answer to this, the next question - which conclusion should be drawn - is a question of fact: Bell v Commissioner of Taxation [2013] FCAFC 32 at [18] (Jessup, Jagot and Robertson JJ), referring to TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; 82 ALR 175 at 182. Thus, where the Tribunal's reasoning discloses no error of construction and the facts as found are capable of "falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact not law": Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; 59 FCR 6 at 16 (Hill J); and see Haritos at [194]-[197]. (emphasis added). 23 Finally, we note that the same five judges who comprised the Full Court in May, on the same day, decided Haritos v Commissioner of Taxation [2015] FCAFC 92. (It may be noted the last cited passage in May cited Haritos.) It concluded that a question of law may include so-called mixed questions of fact and law, as well as 'pure questions of law', but [192] 'the right of appeal does not extend to mere questions of fact'. Haritos also concerned s 44 of the Administrative Appeals Tribunal Act 1975. 24 Applying these principles here: (1) The statutory definitions in s 10AA(2) of the Act uses words in their ordinary meaning; (2) Their meaning and proper construction is a question of law; and (3) If it is reasonably open to hold that the facts of the case fall within the properly construed definition, the question as to whether they do or do not is one of fact, so that there is no appeal as of right to an Appeal Panel on that particular question alone.
4. The conclusion is applicable in Mr Sunol's appeal here with the same result, namely: …it is reasonably open to hold that the facts of the case fall within the properly construed definition, the question as to whether they do or do not is one of fact, so that there is no appeal as of right to an Appeal Panel on that particular question alone. (Codlea at paragraph [24] above)
5. Later, the Tribunal below concluded that "having regard to the inflammatory tone and intemperate language of the offending content, together with the lack of any evidence of steps taken by Mr Sunol to determine whether there was any basis for the proposition that male homosexuals have a tendency to sexually abuse children without deciding whether Mr Sunol had acted in good faith, or was motivated by ill will or other improper motive", the Tribunal found that it could not be said that his act in communicating the offending content was done "reasonably". Thus, Mr Sunol failed to discharge his onus of proving that the public act was done reasonably. As a result, the defence in subsection (2)(c) was unavailable.
6. The difficulty with the challenge to the findings about the exceptions in s49ZT(2)(c) is that the onus was on Mr Sunol to establish that his circumstances fell within the exception. Again, the Tribunal correctly applied the legal test and it was 'reasonably open to hold that the facts of the case fall within the properly construed definition'.
7. It was clarified in argument that these were the only two grounds. A passing suggestion that language to which the appellant took exception showed that the Tribunal below was biased was not pressed. As noted above, there was no challenge to the conclusion that the linked material had the capacity to incite.
8. The appeal is dismissed.

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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: 12 September 2016