By application made on 11 May 2018 the applicant, John Christopher Sunol sought an order that this Tribunal refer to the Supreme Court of NSW pursuant to the provisions of section 73 of the Civil and Administrative Tribunal Act ("the Act") certain material which the respondent, Garry Burns had published and which he alleged was in contempt of this Tribunal.
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 publication of which the applicant complained was said to consist of a letter which the respondent had written to the Registrar of this Tribunal in connection with proceedings in which he was involved as the applicant and to which the applicant was respondent, which were related in some manner to an earlier decision of the Tribunal between the same parties. In that earlier decision which is reported as Burns v Sunol (No 2) [2017] NSWCATAD 236, the respondent had been partially successful only. The letter to the Registrar in the then current proceedings referred to that earlier decision as "incongruous and discombobulated rubbish", named the two Members of the Tribunal who had determined those proceedings and said that they "should not sit on any cases where I'm the Applicant from this date forth."
A copy of the respondent's letter to the Registrar has not been produced by the applicant, and the only available public information concerning its contents was made available by the Tribunal when it published its Reasons for Decision.
Before setting out the relevant parts of that earlier decision, I should first refer to some additional background information. There is a long and bitter history of litigation before the Tribunal and its predecessor between the respondent and applicant over many years. In general terms, the applicant has maintained an Internet site on which he, and perhaps others, have published certain material about which the respondent has made complaints under the relevant Anti-Discrimination legislation. The publication of this material and the making of these complaints has led to a series of matters before this Tribunal in which, it must be observed, the respondent has been successful on many occasions. This has led to the respondent securing costs orders in his favour against the applicant, which have not been met and which have led to the eventual bankruptcy of the applicant. Information furnished during the course of these proceedings by the applicant indicates that he remains a bankrupt.
The asserted continuing failure of the applicant to comply with many orders of this Tribunal requiring him to publish apologies and to desist from the publication of further offensive material led to an application brought by the respondent against the applicant for referral of certain matters to the Supreme Court under section 73 of the Act. As a result of that application, the Tribunal determined to refer a number of matters to the Supreme Court in Burns v Sunol [2018] NSWCATAD 78. ("The referral decision"). That decision sets out in some detail a summary of the litigation between these parties.
[2]
The alleged contemptible material and its publication
The nature of the proceedings considered by the Tribunal in Burns v Sunol (No 2) [2017] NSWCATAD 236 was summarized in [1] and following in its Decision published on 31 July 2017 in the following terms;
These reasons address three complaints lodged by Garry Burns with the President of the Anti-Discrimination Board (respectively "the President" and "the Board").
In two of the three complaints, Mr Burns alleges that John Sunol communicated material via the internet which vilified homosexual people and/or him. 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: s 49ZT.
In the third complaint, Mr Burns alleges that Mr Sunol victimised him by publishing material which alleges Mr Burns has engaged in criminal conduct and, by the operation of s 50 of the Act, is unlawful.
In this decision, the Tribunal found one of the two vilification complaints made by Mr Burns to be substantiated in part, but dismissed the second vilification complaint and the victimisation complaint.
At the time, the Tribunal constituted by the same members had heard a further complaint made by the respondent against the applicant and had reserved their decision. Accordingly, the Decision of 31 July, 2017 was published before the decision on this further complaint had been finalised. Obviously, the respondent was unhappy with that decision because this caused him to write a letter to the Registrar of the Tribunal seeking that the members refrain from further dealing with that further complaint. The members concerned declined to accede to this request, and published reasons in Burns v Sunol [2018] NSWCATAD 10 on 10 January 2018.
In referring to the letter to the Registrar and its contents, the Tribunal said, at [3];
On 14 July 2017, after conducting a hearing, we reserved our decision in relation to the Complaint. While the decision was reserved, Mr Burns made an application seeking that the members of this Tribunal (Principal Member (PM) Britton and General Member (GM) Newman) disqualify themselves from determining the Complaint on the ground of apprehended bias (the recusal application). He asserted that a recent decision made by this Tribunal was "incongruous and discombobulated rubbish".
In referring to the recusal application made by Mr Burns, the Tribunal said, at [27] and [28];
The judiciary and members of tribunals should not lightly accede to applications of this nature. In our view, the reasonable lay observer would expect that disappointed litigants, or their supporters, might sometimes express themselves intemperately but that judicial officers and tribunal members would have broad shoulders. Bad behaviour, insults and even contempt on the part of litigants and others should never be rewarded. The reasonable lay observer, in our view, would expect that the members of this Tribunal have integrity and sufficient moral fortitude to withstand abuse and insults and the means to deal with them appropriately without being intimidated or coerced into appeasing the badly behaved or contemptuous.
We are not satisfied that a reasonable, objective lay observer, in possession of all relevant facts, might come to a view that this Tribunal might deviate from dealing with facts and the law appropriately. The recusal application is dismissed.
This is the only information available to the Tribunal as currently constituted concerning the contempt alleged by the applicant to have been committed by the respondent. It may be assumed that the letter complained of was addressed to the Registrar, and has been seen by registry staff. The only public publication of the letter is that which is contained within the Decision referred to above.
[3]
The statutory basis for this application and consideration.
I have previously set out the provisions of section 73 of the Act. In view of the decision which I have reached concerning the disposition of these proceedings it is not necessary that I consider in any detail the nature and extent of the power of referral under section 73. For present purposes I note that the Tribunal is empowered to refer a matter to the Supreme Court if it is alleged, or appears to the Tribunal on its own view that a person is guilty of contempt of the Tribunal. However, it is clear that whether or not referral is to be made requires the exercise of a discretion having regard to all of the relevant factual circumstances informed by the statutory context against which the power of referral is created. Obviously, the relevant factual circumstances will include the nature and extent of the conduct or behaviour which is said to constitute contempt. In general terms, and without recourse to well-known authority, whether there has been contempt is to be considered in the context of whether the conduct or behaviour tends to undermine the system for the administration of justice by this Tribunal and the maintenance of public confidence in this Tribunal (see, for example, by analogy, Lord Diplock in the House of Lords in Attorney- General v Times Newspapers [1974] AC 273 commencing at 307). Put another way, do the contents of the letter forwarded by the respondent undermine the maintenance of public confidence in this Tribunal by reference to the character, integrity, honesty and work of its members?
Dictionary definitions, including the Oxford on-line dictionary, indicate that if something is incongruous, it is capable of being seen as not only incorrect, but inappropriate and even absurd or out of place. If something is described as discombobulated, it is capable of being seen as confused. It may be seen that reference to something which is described as discombobulated rubbish, in the context of a reasoned decision, is not only highly critical, but holds such a decision up to ridicule. This is more so if this phrase is coupled with its being described as incongruous.
Prima facie the use of these words by the respondent to describe his displeasure with the Decision are in contempt of this Tribunal. Even if they be considered as the petulant, immature and ill-considered utterances of a disappointed litigant, nevertheless their publication arguably has the effect of undermining the maintenance of public confidence in the work of this Tribunal. There is, and always will be a place for considered and reasoned criticism of the decisions of tribunals and courts, and criticism of this kind has always been acknowledged as falling outside the purview of what constitutes contempt. However, the language used by the respondent falls outside anything which could be characterised as considered and reasoned.
Accordingly, it follows that I am persuaded that it appears to me that the respondent is guilty of contempt of the Tribunal for the purpose of section 73 (1) of the Act. It is then necessary to consider whether the respondent should be asked to show cause why a referral to the Supreme Court should not be made. In submissions, the applicant said that he no longer personally sought referral, nor did he wish to formulate any particular charge of contempt. He said that he was content for the Tribunal to proceed to determine whether the discretion to refer should be exercised entirely of its own motion.
Although I have concluded that it appears that the respondent is guilty of contempt of the Tribunal within the provisions of section 73 (1) of the Act, I have determined not to exercise the discretion to refer the matter to the Supreme Court. There are three reasons for so determining.
Firstly, the conduct of the respondent which constitutes contempt was confined to a letter forwarded by him to the Registrar of this Tribunal. The offending words were not uttered during the course of a hearing conducted in public, they were not published to the public, and would have been seen only by registry staff, as well as the Members concerned.
Secondly, the wider publication of the offending material was made by the Members themselves, admittedly in the context of dealing with the recusal application brought by the respondent.
Thirdly, the Members determined to deal with the offensive material in the following manner;
The reasonable lay observer, in our view, would expect that the members of this Tribunal have integrity and sufficient moral fortitude to withstand abuse and insults and the means to deal with them appropriately without being intimidated or coerced into appeasing the badly behaved or contemptuous.
In circumstances where the Members demonstrated that they were content to deal with the matter without taking any step to have the respondent referred or otherwise dealt with for contempt, it is not appropriate that I should now undertake this course at this later stage.
In all the circumstances, I decline to make a referral under section 73 (1) of the Act.
[4]
Order
It follows that the application should be dismissed, and I so order.
[5]
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: 08 November 2018