Sunol v Collier [2001] FCA 1615 | Case summary

REASONS FOR DECISION Background 1 Mr John Sunol has appealed against a decision of the Tribunal which found that he had vilified homosexual people in statements published on the internet. Mr Sunol has also appealed against a separate "remedies" decision which ordered him to take certain action in relation to those statements and to pay the applicant's costs. Mr Sunol may appeal against those decisions "on any question of law": Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 113(2)(a). If the Appeal Panel grants leave, an appeal may extend to a review of the merits of the appealable decision: Tribunal Act, s 113(2)(b). 2 The background to this appeal is that Mr Henry Collier made a complaint of homosexual vilification against Mr Sunol pursuant to the Anti-Discrimination Act 1977 (the AD Act). The complaint related to eight statements published by Mr Sunol on various websites during September and October 2004. The Tribunal found that five of the eight statements constituted homosexual vilification in breach of s 49ZT(1) of the AD Act. That provision states that: 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. 3 Rather than reproducing the full text of this provision when referring to the test in s 49ZT(1), we will use the shorthand expression "to engage in a public act which incites the requisite impact." The verbatim text of the five offending statements is set out below. We have used the same alphabetical lettering to identify the statements as that used by the Tribunal. Statements (a), (b), (c) and (g) have not been reproduced because the Tribunal did not find that they were in breach of the AD Act and there has been no appeal against that decision. (d) 'I have spoken out sharply against the Gay Lobby and feminist lefttist social changes which are anti-God and out to destroy todays society. This includes, Same sex partners Marriage: Adoption for homosexual couples: Decriminalised drugs, Mariuajana and Heroine ect: and other such evils.' (e) 'Faggots are all wicked evil people.' (f) 'I am willing to go to prison for being dissobedient to any law of such and I will incite others to do so as well.' (h) 'God will burn Sydney to the Ground because of the evilness of these fags.' (i) 'I hope and pray that God mooves and brings more of the religious right into Australia to keep the poofs and faggs kept held down.' Tribunal's decision 4 Item (d) appeared on the web-site web-ministry.com. Items (e), (f), (h) and (i) formed part of a single posting on wollongongmusicscene. All these items were contributions to online "chats" with other web-users. Mr Sunol admitted that he wrote and posted item (d). He said that he wrote the items in (f) and (h) but only in private email messages. He claimed that other people, possibly the recipients of this email, were responsible for the presence of these items on the Wollongong music scene website. He denied having written items (e) and (i) and said that he believed people had hacked into his websites and sent his material to a website called Zgeek to discredit him. He said that he had found expert witnesses who could give evidence supporting his claim but they had not been able to attend the hearing. Mr Collier put forward evidence from two expert witnesses, Danny Webb and Phil Kernick, both of whom rejected Mr Sunol's theory as to how the offending statements found their way onto the Wollongong music scene website. Mr Sunol did not require Mr Kernick for cross-examination. Despite Mr Sunol's denials, the Tribunal found that he was responsible for the publication of items (e), (f), (h) and (i). 5 The Tribunal then turned to the question of whether that material unlawfully vilified homosexual people. The Tribunal identified four elements which needed to be satisfied for the statements to be in breach of s 49ZT. Those elements are that there be: (i) a public act (ii) which incites (iii) hatred towards, serious contempt for or severe ridicule of a person or group of persons (iv) on the ground of the homosexuality of the persons or members of that group. 6 The Tribunal found that each of the five statements satisfied these elements and that the only statutory exception that Mr Sunol relied on (that the publications were made 'reasonably and in good faith' for 'religious instruction' or 'other purposes in the public interest') had not been made out. In a separate decision on remedies, the Tribunal made various orders against Mr Sunol in relation to removing material from websites, not re-publishing certain material and posting a retraction on a website controlled by him. The Tribunal also ordered Mr Sunol to pay Mr Collier's costs. Grounds of appeal in relation to liability decision 7 Mr Sunol appealed against the Tribunal's decisions on eight grounds. Grounds 1 to 4 relate to the Tribunal's decision on liability. (1) The Tribunal did not interpret or apply s 49ZT of the AD Act correctly, particularly in relation to the meaning of the word "incite". According to Mr Sunol, whether anyone was actually incited is the test, not whether the publications were capable of doing so. (2) There was no evidence of incitement. (3) The Tribunal erred in finding that the statements were capable of inciting an ordinary reasonable reader to hatred in circumstances where the statements merely reflected Mr Sunol's state of mind and he was not a person who would be likely to influence public opinion. (4) The Tribunal denied Mr Sunol procedural fairness by failing to warn him of the consequences of admitting the report of Mr Kernick into evidence without cross-examination. The Tribunal should have advised Mr Sunol that he could object to the tender or seek an adjournment especially given that it was served late. Ground 1 - meaning of incite 8 Submission on meaning of 'incite'. Mr Sunol submitted that the Tribunal erred in its interpretation of s 49ZT(1) of the AD Act when it held that the provision requires an objective assessment of the capacity of the public act to incite the requisite impact. Counsel for Mr Sunol submitted that proof of actual incitement is necessary and that the Tribunal was in error when it decided to objectively determine whether the publication had the capacity to incite the requisite impact. Mr Boulton argued that if the legislature had intended that the proper test be 'capacity to incite', as opposed to actual incitement, it would have used those words. According to Mr Boulton the Tribunal should have applied the ordinary meaning of the word "incite" to the facts of this case and required proof that someone was actually incited by the publications in question. 9 Appeal Panel's conclusions. As this ground of appeal concerns the construction of s 49ZT of the AD Act it may be properly characterised as an appeal on a question of law. In its decision the Tribunal referred to the summary of the law given in an earlier homosexual vilification case, Burns v Dye [2002] NSWADT 32 at [19]-[23]. In Burns the Tribunal set out the principles which could be drawn from numerous earlier cases concerning the racial vilification provisions in the Act. As similar language has been used in all of those parts of the AD Act which render it unlawful to engage in public acts of vilification on various grounds, this approach to the proper construction of s 49ZT was clearly correct. 10 The summary of the law provided in Burns and relied upon by the Tribunal in this case was accurate. It is supported by ample authority. In Veloskey v Karagiannakis [2002] NSWADTAP 18 at [25]-[26] the Appeal Panel stated: [25] Nor is it necessary that the complainant prove that a person or persons were actually incited by the public act to respond in a requisite manner. That much has never been doubted, although evidence that the public act has had an actual effect may be relevant, both on the question of the public act to incite, and on the question of damages. [26] In determining whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race, the approach taken to the characterisation of the audience for these purposes is crucial. Analogies have been drawn with defamation law and with media law… 11 A similar approach has been taken to the interpretation of the incitement to racial hatred provisions in Part IIA of the Racial Discrimination Act 1975 (Cth). There are significant differences between the vilification provisions in the NSW Act and the racial hatred provisions in the Commonwealth Act. The most notable is the perspective from which the impact of the conduct in question is assessed. However, both bodies of law require that the impact of public conduct be ascertained in order to determine whether it is unlawful. The approach which has been taken by the federal courts to assessing the impact of conduct in incitement to racial hatred cases is well illustrated by statements made by Drummond J in Hagan v Trustees of the Toowoomba Sports Ground Trust [2001] FCA 1615 at [15]: It is apparent from the wording of s 18C(1)(a) [of the Racial Discrimination Act 1975 ] that whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant. An objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section. 12 The decision in this case was upheld by the Full Court of the Federal Court in Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56. 13 No arguments have been advanced which persuade us that the earlier authorities dealing with the proper construction of the various vilification provisions in the Act were incorrectly decided. Consequently, there is no merit in the first appeal ground that the Tribunal misconstrued s 49ZT(1) of the AD Act when it held that the provision requires an objective assessment of the capacity of the public act to incite the requisite impact. Ground 2- incitement requires evidence that someone was incited 14 Mr Sunol submitted that there must be either some direct evidence that an "ordinary reasonable person" was actually incited to hatred or some evidence from which an inference can be drawn to that effect. For the reasons given in relation to the first ground of appeal, this ground of appeal has not been made out. Ground 3 - statements were not capable of inciting hatred 15 Alternative submission. Mr Sunol's alternative submission was that even if the Tribunal's characterisation of the legal test were correct, it had nevertheless made an error of law when applying that test to the facts. Mr Sunol submitted that the error was that the Tribunal's conclusion that five statements did meet the legal test was not reasonably open to it. 16 Appeal Panel's conclusion. This ground of appeal does not raise a question of law; it is a challenge to the merits of the Tribunal's decision. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Glass JA (at 156) distinguished three stages of the determinative process in which a decision maker could make a legal error: "... determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found." 17 This ground of appeal relates to the third stage, namely applying the law to the facts as found. The Tribunal set out the relevant law at [40] to [42] of its decision on liability. In summary, the Tribunal found that the test in s 49ZT(1) is an objective one. The question the Tribunal must ask itself is "could the ordinary reasonable reader understand from the public act that he/she is being incited to 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?" For the purposes of this ground of appeal, Mr Sunol agreed with that formulation of the test and claimed that the facts as found could not have produced the requisite impact in an ordinary, reasonable member of the community. 18 The Tribunal was engaged in an exercise in judgement when it determined that the public acts in question would have produced the requisite impact in an ordinary, reasonable member of the community. In cases of this nature there will be statements that are unarguably unlawful and statements that are unarguably not unlawful. Where statements fall between those two extremes, the Tribunal must evaluate the material and come to its own view. The Tribunal's conclusion as to whether particular statements would incite the requisite impact will only amount to an error of law if it falls "outside the bounds of reasonable judgement". (Moyna v Secretary of State for Work and Pensions [2003] 4 All ER 162 at 169.) In other words, there will only be an error of law if the Tribunal's decision is outside the range that it could have permissibly decided either way. (See Aronson M et al, Judicial Review of Administrative Action, 3rd edition, Law Book Co, 2004 at 191.) This margin has sometimes been described as where the conclusion is "reasonably open". (See Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288 and Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395.) That description has been criticised by Spigelman CJ who calls "reasonably" in this context a "weasel word." The Chief Justice prefers the formulation "not open" or "not open as a matter of law". (Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 677.) With respect, we adopt that view in relation to this case. 19 Tribunal's reasoning. The Tribunal's reasoning on this point is set out at [40] to [62] of its decision on liability. We have not attempted to reproduce all the Tribunal's reasoning here but the points about the context in which the statements appeared are particularly relevant. In relation to statements (d), (e), and (h), the Tribunal concluded that they do not merely communicate the information that Mr Sunol harbours feelings of hatred and/or serious contempt towards the people to whom they refer. The Tribunal found that they also contain "strong epithets, derogatory labels and serious allegations, put forward as reasons why other people should develop such feelings." While the Tribunal conceded that statements (f) and (i) do not contain strong epithets or allegations, statement (i) employs the derogatory labels 'poofs' and 'fags' and statement (e) refers to "faggots" as "wicked evil people". The Tribunal found it to be significant that Mr Sunol published statements (f) and (i) in the same message as statements (e) and (h). The Tribunal concluded that the effect of these statements is "to urge the reader, explicitly or implicitly, to engage in conduct adverse to the interests of homosexuals." The Tribunal explains this finding at [58] and [60]: 58 Statement (f) reads as follows: 'I am willing to go to prison for being dissobedient to any law of such and I will incite others to do so as well.' Earlier in the message, it is indicated that the 'law' in question is a proposed amendment to anti-discrimination law removing exemptions for religious organisations. The message also conveys Mr Sunol's belief that pressure for this amendment came from homosexual people, whom in this specific context he describes as 'wicked evil people' (statement (e)). There is accordingly an explicit statement of a desire by Mr Sunol to 'incite' conduct in opposition to the interests of people whom he labels as 'wicked' and 'evil'. ... 60 In statement (i), the desirability of 'keeping down' homosexual people (designated by the insulting terms 'poofs' and 'fags') is the significant element. Although the statement envisages that this will be done by 'the religious right', the implicit message is that this is appropriate conduct on the part of anyone. 20 The Tribunal said at [61], that statements (f) and (i), standing alone, would not have the requisite capacity to incite hatred or serious contempt. But when they are read in conjunction with the latter two statements, notably (e), it is clear that the basis on which they urge the reader to engage in conduct adverse to the interests of homosexual people is that such people deserve to be the objects of hatred and/or serious contempt. 21 Mr Sunol's submissions. Mr Sunol submitted that these findings were not reasonably open or, as we have characterised the test, not open as a matter of law. He said that statement (d) merely records previous acts of Mr Sunol and expresses his personal views of certain phenomena as "evils". There is no explicit urge to hate or have serious contempt for homosexual people. According to Mr Sunol, statement (e), "Faggots are all wicked people" is a broad generalisation, unsupported on any basis and is not capable of having any effect on the ordinary reasonable reader. Statement (f) "I am willing to go to prison for being disobedient to any law of such and I will incite others to do so as well" reflects Mr Sunol's state of mind. Mr Sunol says he was expressing his opposition to proposed legislation which would remove existing exemptions for discriminatory conduct by religious and other groups. According to him, it is a statement about the legislature, not homosexuals. He says the second part of the statement, "and I will incite others as well" is a statement of intention as to his future conduct which is incapable of inciting any reasonable reader to hold the requisite feelings about homosexual people. 22 Mr Sunol went on to submit that statement (h), "God will burn Sydney to the ground because of the evilness of these fags" predicts a most unlikely event and the ordinary reasonable reader would not take it seriously. Statement (i), "I hope and pray that god moves and brings more of the religious right to Australia to keep the poofs and faggs kept held down" is merely an expression of Mr Sunol's personal wish and is not capable of inciting any ordinary reasonable reader to hate or have serious contempt for homosexuals. Mr Sunol adds that his status as an ordinary member of the public posting messages on the internet is also relevant. He is not a leader of public opinion, nor were the statements made orally to anyone. He says these factors make it even less likely that an ordinary reasonable reader would have understood that he or she was being incited to hatred etc. 23 Appeal Panel's conclusion. The statements in issue were not at the extreme end of the scale where they can be regarded as unarguably unlawful. Minds may legitimately differ as to whether the five statements meet the legal standard. Our task is to determine whether the Tribunal's conclusion that the five statements met the legal standard was not open to it as a matter of law. When the statements are read in context and Mr Sunol's position and status are taken into account, our view is that it was open as a matter of law for the Tribunal to come to the view that they were in breach of s 49ZT(1) of the AD Act. The Tribunal's evaluation in this case did not fall outside the bounds of reasonable judgement. Consequently it has not made an error of law. Fourth ground - denial of procedural fairness 24 Background. Mr Sunol said that the Tribunal denied him procedural fairness by failing to warn him of the consequences of not requiring Mr Kernick for cross- examination. Mr Sunol maintained that he was not responsible for the publication of some of the statements and that others had "hacked" into his website. There was no dispute that Mr Sunol was responsible for publishing statement (d). Relying, in part, on the evidence of Mr Kernick, who had expertise and experience in the design and maintenance of secure web systems, the Tribunal found that Mr Sunol was responsible for the publication of each of the other four statements. The Tribunal said, at [28] that: Our principal reasons for reaching this conclusion are as follows. The printouts indicate that http://www.geocities.com/sunoljc , a website controlled by Mr Sunol, was the source of the posting of these four items. His claim that one or more hackers effected the postings was not supported by any expert evidence to suggest that it was a reasonable possibility. Furthermore, it was directly contradicted by the two expert witnesses on whom Mr Collier relied. Although one of these witnesses (Mr Webb) was clearly antagonistic to Mr Sunol, the other (Mr Kernick) was not. Mr Kernick's evidence was unchallenged because he was not called for cross-examination. 25 What happened in the Tribunal proceedings? On 3 August 2005, the Tribunal advised Mr Sunol at a preliminary case conference of the need to obtain expert evidence should he wish to challenge Mr Collier's expert evidence. Mr Sunol said that when he asked various people to give expert evidence they did not want to appear. On 8 August 2005 Mr Sunol wrote to the Tribunal indicating that he required Mr Collier, Mr Webb and Mr Brisciani for cross-examination. On 6 September 2005, Mr Sunol was served with an unsigned copy of the statement of Mr Kernick. On 22 September 2005, Mr Sunol was served with a signed copy of the same statement. At the hearing on 28 September 2005, the Presiding Member, Acting Judge Chesterman, said: It is open to you, Mr Sunol, to ask that any of the witnesses on whom Mr Collier relies, including Mr Collier himself, should be open for cross-examination by you. You have the right to question them on statements they have made within reasonable limits and relevantly to the matters in dispute. You don't have to do that, it's up to you to decide whether or not you wish to do that. 26 Mr Sunol's submissions. Mr Sunol does not deny that he told the Tribunal that he did not require Mr Kernick for cross-examination but now says that in hindsight, that was the wrong decision. He says that he should have requested an adjournment because he did not receive a signed copy of Mr Kernick's statement until a few days before the hearing. He says the Tribunal should have explained to him the consequences of not requiring Mr Kernick for cross-examination and/or should have granted him an adjournment. The Tribunal's failure to do so is, he says, an error of law. 27 Appeal Panel's conclusion. Section 73(4)(a) of the Tribunal Act states that: (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, 28 We are satisfied that the Tribunal "took such measures as (were) reasonably practicable" to ensure that Mr Sunol understood the implications of Mr Kernick's assertions. We accept that the Tribunal did not tell Mr Sunol expressly that if he failed to require Mr Kernick for cross examination, the Tribunal may regard that evidence as unchallenged and, subject to any matters affecting its weight, accept it. Nevertheless, the Tribunal did tell Mr Sunol that he should obtain his own expert evidence if he believed that others had hacked into particular websites. The Tribunal also told him that he was entitled to require any witness for cross-examination. Mr Sunol required witnesses other than Mr Kernick for cross-examination. That suggests that Mr Sunol was making a deliberate decision not to require Mr Kernick for cross-examination. Extension to the merits? 29 Background. Mr Sunol sought the Appeal Panel's leave to extend the appeal to a review of the merits of the Tribunal's decision: Tribunal Act, s 113(2)(b). The Appeal Panel has an unfettered discretion to grant leave or not to grant leave. If leave were granted, the Appeal Panel could re-determine the Tribunal's factual finding that Mr Sunol was responsible for the publication of statements (e), (f), (h) and (i). If it did so, the Appeal Panel could allow Mr Sunol to cross-examine Mr Kernick before determining that question. In addition, the Appeal Panel could re-determine whether, in its view, each of the five statements breaches the legal standard in s 49ZT(1). 30 Mr Sunol's submissions. The basis on which Mr Sunol sought the Appeal Panel's leave was that he is not legally trained and that he suffers from "cognitive defects" and "obsessive compulsive disorder". He says that those matters mean that he did not put available legal arguments to the Tribunal nor did he address the content and context of the statements adequately. In support of those submissions, Mr Sunol sought to rely on three medical reports - the report of Dr Fenelon dated 19 August 1994 and two reports from Dr Vickery, one dated 17 March 2006 and the other dated 19 April 2006. The Appeal Panel has not admitted those reports into evidence. Mr Sunol also relied on the transcript of the proceedings before the Tribunal on 28 September 2005 which related to the issue of liability. 31 Mr Collier's submissions. Mr Collier submitted that even if Mr Sunol suffers from an intellectual or mental disability, he has not provided any particulars as to the manner in which that disability resulted in him being disadvantaged in the conduct of his defence. In particular, Mr Sunol did not point to any part of the transcript to support his submission. Furthermore, the fact that Mr Sunol was not legally represented at first instance is not a legitimate ground for extending the appeal to the merits of the Tribunal's decision. 32 Appeal Panel's conclusion. We agree with Mr Collier's submissions on this point. Mr Sunol did not claim that he was under a legal incapacity. Section 71(4) of the Tribunal Act allows the Tribunal to appoint a representative for an "incapacitated person". Such a person includes "a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled": Tribunal Act, 71(7)(b)." Mr Sunol did not ask the Tribunal to appoint a representative nor did the Tribunal seek to do so on its own motion. 33 Assuming that Mr Sunol has an intellectual or mental disability, he did not identify how that disability disadvantaged him. Nor is the fact that Mr Sunol was unrepresented a reason to extend the appeal to the merits of the Tribunal's decision. Almost every unrepresented person is at a relative disadvantage compared with a person who is represented by a competent lawyer. When an unrepresented person obtains legal representation on appeal, it will often be obvious to the lawyer that evidence could have been brought or submissions made that were not made at first instance. If that were a reason to extend an appeal to the merits of an appealable decision, then virtually every unrepresented person who obtains legal representation on appeal would be entitled to have their matter heard again. It is also important to record that all of the findings of fact which Mr Sunol would seek to re-visit if granted leave to appeal on the merits were supported by cogent evidence and were subjected to detailed explanation by the Tribunal. We have no sense of unease about any of these findings of fact. For those reasons, leave for the appeal to be extended to the merits of the Tribunal's decision on liability is refused. Grounds of appeal 5 to 8- remedies and costs decision 34 Summary of orders and grounds of appeal. Mr Sunol also appealed against the Tribunal's decision in relation to remedies and costs on four grounds (grounds 5 to 8). The Tribunal's orders and Mr Sunol's grounds of appeal are set out below: 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him any material concerning homosexual men, lesbians, homosexuality or the gay lobby 5th Ground of appeal: the order is beyond the power of the Tribunal as set out in the now repealed s 113 of the AD Act because it requires Mr Sunol to remove material which the Tribunal did not find to be unlawful. 2. The Respondent is to refrain from publishing material on any of these topics on any website, whether or not controlled by him 6th Ground of appeal: The Tribunal's second order is beyond the power of the Tribunal because it restrains the publication of material which the Tribunal did not find to be unlawful. 3. Within fourteen (14) days of the date of this decision, the Respondent is to post the statement set out in subparagraph (3) of paragraph [44] of these reasons on every website controlled by him, and in addition on the websites known as web-ministry.com and wollongongmusicscene.com: This statement is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 24 March 2006. On 22 September 2004 and on 20 October 2004, I published comments on various websites concerning the gay lobby and homosexuals. On 17 November 2005, the ADT found that my comments were vilification because they were capable of inciting hatred or serious contempt of homosexuals and the gay lobby. The ADT also found that my comments were not published reasonably, and that they were sweeping generalisations of a highly offensive nature. My comments were 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, and I will in future refrain from making, publishing or distributing any public statements that vilify homosexual people or groups of homosexual people on the ground of their homosexuality. 7th Ground of appeal : The Tribunal's third order is beyond the power of the Tribunal because it requires Mr Sunol to make a statement as to future conduct. 4. The Respondent is to pay the Applicant's costs of these proceedings, in a sum to be agreed within sixty (60) days of the date of this decision or, failing agreement, to be assessed pursuant to the Legal Profession Act 2004. 8th Ground of appeal: This order was made without any consideration of the primary purpose of an order for costs which is to indemnify a successful party who has incurred costs for which he is liable. 35 Powers of the Tribunal when complaint substantiated. The now repealed s 113(1) sets out the kinds of orders the Tribunal is able to make after finding a complaint wholly or partially substantiated. (The complaint had not been finally determined before the repeal of s 113 of the AD Act, so that provision continues to apply to these proceedings: AD Act, Schedule 1, Part 5, Cl 15.) The relevant parts of that provision are set out below: (1) After holding an inquiry, the Tribunal may: (a) (b) find the complaint substantiated and do any one or more of the following: (i) ... (ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (iii) except in respect of a representative complaint or a matter referred to the Tribunal under section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), ... Ground 5 - order 1 36 Background. The Tribunal's first order was that: Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him any material concerning homosexual men, lesbians, homosexuality or the gay lobby. 37 The now repealed s 113(1)(b)(ii) allowed the Tribunal to make injunctive style orders to prevent a respondent from "continuing or repeating any conduct rendered unlawful" by the AD Act. Mr Sunol challenged the Tribunal's order on two bases. First, he said that as the statements are already on the websites he is not "continuing or repeating" any conduct by leaving them there. Secondly, he said that the order is too broad because it covers all material concerning homosexual men, lesbians, homosexuality or the gay lobby, even if that material has been found not to be in breach of the AD Act. 38 Continuing or repeating conduct. Section 49ZT(1) makes it unlawful to incite hatred etc by a "public act". The Tribunal found at [33] of the liability decision, that ". . . the act of posting written text on a website that is not password protected and therefore is publicly accessible falls within paragraph (a) of the definition of 'public act' in s 49ZS. It constitutes a "form of communication to the public." As long as those statements remain on the website, they continue to communicate with members of the public who access that site. In our view s 113(1)(b)(ii) allows the Tribunal to make an order that Mr Sunol remove material from his websites because Mr Sunol is continuing the unlawful conduct by leaving those statements on his website. 39 Is order 1 too broad? Mr Collier accepts that the order is expressed too broadly because it requires Mr Sunol to remove lawful comments or statements concerning homosexual men, lesbians and homosexuality or the gay lobby, as well as unlawful comments. We agree that the Tribunal's first order is not within the Tribunal's power under s 113(b)(ii) because it applies to lawful conduct as well as to conduct that is unlawful under the AD Act. 40 Substituted order. Having found an error of law in relation to order 1, we have the power to set aside that order and make another order in substitution for that order: Tribunal Act, s 114(2)(c). Mr Collier suggested the following order be substituted for the Tribunal's first order: Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him, the following material: (d) 'I have spoken out sharply against the Gay Lobby and feminist lefttist social changes which are anti-God and out to destroy todays society. This includes, Same sex partners Marriage: Adoption for homosexual couples: Decriminalised drugs, Mariuajana and Heroine ect: and other such evils.' (e) 'Faggots are all wicked evil people.' (f) 'I am willing to go to prison for being dissobedient to any law of such and I will incite others to do so as well.' (g) 'God will burn Sydney to the Ground because of the evilness of these fags.' (i) 'I hope and pray that God mooves and brings more of the religious right into Australia to keep the poofs and faggs kept held down.' and all material to the same or similar effect concerning homosexual men, lesbians, homosexuality or the gay lobby. (Emphasis added.) 41 Mr Sunol's submissions. Mr Sunol objected to that part of the order which is italicised on the basis that the Tribunal's power is limited to preventing him from continuing or repeating any conduct rendered unlawful by the AD Act. According to Mr Sunol, that part of the order which is in italics is uncertain because he is not able to determine whether particular statements are lawful or unlawful. The Tribunal found only five of the eight allegedly unlawful statements to be in breach of the AD Act. In those circumstances, Mr Sunol says that it is not possible for him to predict whether the Tribunal would find other statements on his websites lawful or unlawful. 42 Mr Collier's submissions. Mr Collier said that there are precedents for orders applying not only to the actual statements made but also to material of the same character. For example, in Jones v Toben [2002] FCA 1150 Branson J said: The evidence discloses that since the date of the determination of HREOC considerable material of the same general character as the document " About the Adelaide Institute " has been published by the respondent both on the World Wide Web and in the form of newsletters. I am satisfied that in the circumstances it is appropriate for orders to be made which reach not only to the document " About the Adelaide Institute " but also to material of the same character. The decision in this case was upheld on appeal: Toben v Jones (2003) 129 FCR 515. 43 Similarly, in Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 the Victorian Civil and Administrative Tribunal (VCAT) made an order restraining the publication of "any statements and, or alternatively, information, suggestions and implications, to the same or similar effect". 44 Appeal Panel's conclusion. An order that Mr Sunol remove material "to the same or similar effect" from websites controlled by him, implies that there is other material to the same or similar effect as the five statements found to be unlawful by the Tribunal. The Tribunal noted that since the judgement on liability, Mr Sunol had posted a number of statements on various websites expressing strong opposition to the Tribunal's decision and stating that he would not abide by any orders that the Tribunal may make. Mr Collier tendered a statement to the Appeal Panel attaching extracts from websites that Mr Sunol had published between 17 November 2005 and 19 December 2005. Most of those statements were about Mr Sunol's intention not to comply with any orders that the Tribunal may make against him and to continue exposing what he refers to as the "evil" and "corrupt" "gay Mardi Gras people". For example, one of the statements was as follows: I will not shut my mouth ever, I intend to let the whole world know how corrupt and evil the gay Mardi Gras people are. I do not care what happens but I will not stop no matter what. 45 This statement, and some other statements published by Mr Sunol, are similar to the material that the Tribunal found to be unlawful. The now repealed s 113(1)(b)(ii) applies to conduct "rendered unlawful" by the AD Act. There is no need for the Tribunal to have found a particular statement to be in breach of s 49TZ(1) for that conduct to be "rendered unlawful" by the AD Act. It may well be difficult for Mr Sunol to predict whether comments he has made or wishes to make are unlawful . But that it not a reason to allow him to continue publishing similar material to that which the Tribunal has decided is in breach of the AD Act. As French J observed in a Commonwealth racial hatred case, Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [93], it is quite legitimate in this area that there be "an uncertain risk of liability to conduct in the shadow of the rule". It follows that we agree with the order proposed by Mr Collier. If Mr Sunol insists on continuing to publish such material, then he is at risk of being in breach of an order of the Tribunal. Ground 6 - order 2 46 Background. The Tribunal's second order was that: The Respondent is to refrain from publishing material on any of these topics on any website, whether or not controlled by him. 47 The reference to "these topics" is a reference to material concerning homosexual men, lesbians, homosexuality or the gay lobby. This is another injunctive-style order made under s 113(1)(b)(ii). Again, Mr Collier accepts that this order is too broad because it prevents Mr Sunol from publishing lawful statements about those topics on his websites. We agree. The order is beyond the power of the Tribunal to make. Mr Collier submitted that the Appeal Panel should substitute the following order: The Respondent is to refrain from publishing the material referred to in order one, or material with content to the same or similar effect as that referred to in order one, in any website whether or not controlled by him. 48 Mr Sunol objected to two aspects of this proposed order. First, he objected to the reference to material "with content to the same or similar effect as that referred to in order one" and secondly, he objected to the reference to websites not controlled by him. 49 Appeal Panel's conclusion. We are satisfied that the Tribunal has power to make an order enjoining Mr Sunol from repeating any unlawful conduct. That includes re-publishing 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 re-publishing 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. 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. Ground 7 - Order 3 51 Background. Tribunal's third order was that Mr Sunol post a statement on every website controlled by him and in addition on two websites not controlled by him. This order was made pursuant to s 113(1)(b)(iiia) which allowed the Tribunal to "order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both)". A similar order was made by the Tribunal in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24, and by the Victorian Civil and Administrative Tribunal in Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159. 52 Mr Sunol's submissions. Mr Sunol objected to that order because he said it did not constitute an apology or retraction and it contains an undertaking that he will not do something in the future. We agree. Section 113(1)(b)(iiia) only allows the Tribunal to order a respondent to publish an apology or a retraction. The statement that the Tribunal ordered Mr Sunol to publish cannot be characterised as an apology or a retraction. Furthermore, it includes an undertaking by Mr Sunol that he will not do something in the future. Section 113(1)(b)(iiia) does not give the Tribunal power to make an order which includes such an undertaking. If Mr Sunol wishes to give such an undertaking voluntarily, that is a matter for him. It follows that, in our view, the Tribunal has made an error of law by ordering Mr Sunol to publish the statement set out in Order 3. 53 On numerous occasions federal courts and State tribunals have questioned the efficacy of ordering apologies and retractions in vilification proceedings. For example in Jones v Scully (2002) 120 FCR 243 at [245], a case in which the respondent was found to have contravened Part IIA of the Racial Discrimination Act by distributing anti-Semitic leaflets, Hely J stated: During the course of submissions I suggested to the applicant's counsel that, prima facie, the idea of ordering someone to make an apology is a contradiction in terms. Mr Rothman accepted this. Although an apology has been ordered in proceedings of this type in the past (see, for example, Oberoi v HREOC [2001] FMCA 34), I do not think that an order that the respondent publish an apology is appropriate in these proceedings. Nor do I consider that ordering the publication of a retraction is appropriate. In my opinion, a retraction is only appropriate where it has been established by an applicant that what has been published or disseminated by a respondent is false. The present proceedings were not concerned with the truth or falsity of what was distributed by the respondent; rather, it was concerned with whether her leaflets were reasonably likely to offend, insult, humiliate or intimidate Jews in Australia. 54 We accept what Hely J said about a retraction. These proceedings have not been concerned with the truth or falsity of Mr Sunol's statement; they have been concerned with whether those statements constituted vilification on the ground of homosexuality in contravention of s 49ZT(1) of the AD Act. To order Mr Sunol to retract those statements would be neither appropriate nor useful. We do believe, however, that it is reasonable and appropriate to order Mr Sunol to apologise if that apology is characterised as a public acknowledgment of wrongdoing rather than as an actual statement of regret. This was the approach taken by the Tribunal in Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267 at [29]-[30]. If follows that we set aside Order 3 and make an order in substitution for that order. The text of the apology is set out below under the heading "Orders". Ground 8 - costs 55 Background. The Tribunal's final order was that Mr Sunol pay Mr Collier's costs. The reasons for that order appear at [38] to [43] of the Tribunal's decision. The Tribunal correctly identified s 110 of the AD Act as the relevant provision. That provision expresses the general rule that each party to proceedings is to pay his or her own costs. However, the Tribunal may award costs if it is of the opinion that there are circumstances justifying it making a costs order. The two main circumstances that the Tribunal regarded as justifying a costs order appear at [38] and [40]: (i) that because Mr Collier did not claim damages he would be out of pocket unless he can recoup his legal costs - that is not a desirable situation where the complaint concerns an important public interest consideration, namely the protection of homosexual people from the widespread dissemination of vilifying statements; and (ii) that Mr Sunol claimed that 'hackers' were responsible for the offending publications and that he had access to expert evidence that would establish that to be the case - no such evidence was produced and Mr Collier was put to the expense of obtaining his own expert evidence on that issue. 56 Mr Sunol's submissions. Mr Sunol submitted that the Tribunal had erred because the costs order was made without any consideration of the primary purpose of an order for costs which is to indemnify a successful party who has incurred costs for which he is liable. Mr Sunol said that Mr Collier would not be out of pocket if a costs order was not made because he was represented by public bodies, namely the Inner City Legal Centre and the Public Interest Advocacy Centre. He said Mr Collier's legal fees would be publicly funded, so he is not liable for those expenses. Mr Sunol also submitted that costs should not have been awarded against him because he has cognitive defects and an obsessive compulsive disorder. 57 Mr Collier's submissions. Mr Collier's response to the first submission was to provide evidence that the costs agreement with both Inner City Legal Centre and the Public Interest Advocacy Centre were conditional costs agreements. The agreements provided that costs and disbursements, including counsel's fees, would be sought in the event that Mr Collier was awarded costs in the Tribunal proceedings. The fact that both the Inner City Legal Centre and the Public Interest Advocacy Centre were acting on a "no-win/no-pay" basis does not prevent them from recovering their costs: Wentworth v Rogers [2002] NSWSC 709. 58 Appeal Panel's conclusion. In our view, the fact that a party has entered into a conditional costs agreement with his or her lawyer is not a matter that is relevant to the exercise of the Tribunal's discretion under s 110. If the parties do not agree on the amount of costs, then the Tribunal's order states that costs are to be assessed pursuant to the Legal Profession Act 2004. When considering what is a "fair and reasonable" amount of legal costs, the costs assessor may have regard to any relevant costs agreement: Legal Profession Act 2004, s 386(2)(c). In relation to Mr Sunol's submission that the Tribunal should not have awarded costs against him because of his disability, that was not a matter raised by Mr Sunol before the Tribunal. Nor did Mr Sunol submit to the Tribunal that the way either he or Mr Collier had conducted themselves in the proceedings was a relevant factor in determining whether to make a costs order. Consequently the Tribunal cannot have made an error of law by not having taken those matters into account. Costs of these proceedings 59 Mr Collier's application for costs. Mr Collier seeks costs in relation to the liability appeal, but not in relation to the appeal against the Tribunal's decision on remedies and costs. He says that he was put to unnecessary expense because Mr Sunol sought to put on medical evidence. That led the Appeal Panel to schedule a directions hearing on 17 May 2006 which would not otherwise have been needed. Mr Collier also put on evidence from his solicitor, Ms Shulman in relation to the nature of the costs agreement between the parties and in relation to whether Mr Sunol was advised of the possible consequences of not adducing expert evidence to support his assertion that he was not responsible for the publication of some of the statements. Mr Sunol submitted that he should not have to pay any costs on appeal because the Tribunal ordered remedies which were beyond its power. 60 Relevant provision. We accept that because the Appeal Panel is part of the Tribunal as a whole, the same costs provision applies on appeal as applied at first instance: Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 at [60]. Consequently, s 110 of the AD Act is the relevant costs provision. That provision states that "each party is to pay his or her own costs" except as provided by s 110(2). Section 110(2) states that: "[where the] Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit". 61 Appeal Panel's conclusion. Success or failure on appeal is not a circumstance that, by itself, would generally justify making an order for costs. Something more is necessary. For example, an appeal may have no tenable legal basis or it may be brought vexatiously. That was not the situation in this case. Another circumstance where an order for costs may be justified is where the conduct of a party or his or lawyer resulted in unnecessary expense or delay. On appeal, Mr Sunol engaged lawyers to represent him. Those lawyers made certain decisions about how the appeal was to be conducted including a decision to obtain medical evidence. Ultimately, the Appeal Panel did not admit that evidence, nor were we persuaded that any disability Mr Sunol may have justified extending the appeal to the merits of the Tribunal's decision or setting aside the Tribunal's order for costs against him. It is true that Mr Sunol's submissions in relation to the relevance of his alleged disabilities led to increased costs for Mr Collier. However, making those submissions was not so unreasonable that it justifies a costs order being made against him. Consequently, Mr Collier's application for costs is refused. Conclusion 62 Mr Sunol appealed on eight grounds against orders of the Tribunal that he had vilified homosexual people by publishing certain statements on the internet. His four grounds of appeal against the Tribunal's decision on liability were unsuccessful. We declined to give leave to extend the appeal to the merits of the Tribunal's decision. Mr Sunol's three grounds of appeal against the Tribunal's decision on remedies were all successful. Those remedies related to removing material from websites, not publishing further material and publishing an apology or retraction. We found that the Tribunal had made errors of law in relation to those orders because they were too broad and went beyond the powers given to the Tribunal by the AD Act. We substituted new, narrower, orders for the orders the Tribunal had made. Mr Sunol was not able to persuade us that the Tribunal's order that he pay Mr Collier's costs should be set aside. We refused Mr Collier's application for costs in relation to the appeal on liability. Orders 1. The appeal against the Tribunal's decision on liability dated 17 November 2005 is dismissed. 2. In relation to the liability decision, Mr Collier's application for costs is refused. 3. In relation to the appeal against the Tribunal's decision on remedies dated 24 March 2006: (a) Order 1 is set aside. In substitution for that order, the following order is made: Within fourteen (14) days of the date of this decision, Mr Sunol is to remove from every website controlled by him, the following material: (d) 'I have spoken out sharply against the Gay Lobby and feminist lefttist social changes which are anti-God and out to destroy todays society. This includes, Same sex partners Marriage: Adoption for homosexual couples: Decriminalised drugs, Mariuajana and Heroine ect: and other such evils.' (e) 'Faggots are all wicked evil people.' (f) 'I am willing to go to prison for being dissobedient to any law of such and I will incite others to do so as well.' (g) 'God will burn Sydney to the Ground because of the evilness of these fags.' (i) 'I hope and pray that God mooves and brings more of the religious right into Australia to keep the poofs and faggs kept held down.' and all material to the same or similar effect concerning homosexual men, lesbians, homosexuality or the gay lobby. (2) Order 2 is set aside. In substitution for that order, the following order is made: 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. (3) Order 3 is set aside. In substitution for that order, the following order is made: Within fourteen (14) days of the date of this decision, Mr Sunol is to post the following apology, attributed to him, on every website controlled by him, and in addition on the websites known as web-ministry.com and wollongongmusicscene.com: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 29 September 2006. On 22 September 2004 and on 20 October 2004, I published comments on various websites concerning the gay lobby and homosexuals. On 17 November 2005, the ADT found that my comments were vilification because they were capable of inciting hatred or serious contempt of homosexuals and the gay lobby. The ADT also found that my comments were not published reasonably, and that they were sweeping generalisations of a highly offensive nature. I apologise for making these comments. My comments were 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. John Sunol

Sunol v Collier

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